Section 3 C Immigration Act 1971 prevents you from becoming an overstayer in the UK even if your existing leave has expired. This means section 3 C allows you to stay in the UK legally beyond your current visa expiry date until a decision on your application for extension is reached provided you applied for extension in time (i.e. you applied before your visa expiry). Such provisions are also applicable while any appeal or administrative review is pending and therefore you are entitled to stay in the UK lawfully.
Section 3 C Immigration Act 1971 explains when your leave to remain is extended beyond your visa expiry date.
Pending decision on application
A person will have section 3C leave if:
• You have limited leave to enter or remain in the UK;
• You apply to the Secretary of State for variation/extension of that leave;
• You make an application for extension or variation in time i.e. before your leave expires;
• The leave expires while the verdict on the application for variation is to be reached;
• The application for variation is neither decided nor withdrawn
Pending appeal
Section 3C leave continues during any period when:
• An in-country appeal could be brought (ignoring any possibility of appeal out of time with permission)
• You have appealed but your appeal has not yet been finally determined
Pending Administrative Review
Section 3C leave continues during any period when:
• You have been granted the right to an administrative review
• The decision on your administrative review is pending
• You have not applied for a fresh leave to remain
Section 3C leave will end the moment you leave the UK.
Section 3C does not apply when you apply for an extension after your leave has expired. Equally, an invalid application nullifies Section 3 C. However, Home Office guidance provides that a single opportunity should be given to an applicant to correct any omission or error, with a timeframe of 10 working days to respond to its request.
Section 3 C is triggered only when a decision has yet to come on your application for extension, variation, appeal, or administrative review before your leave expires.
This means how a variation application is to be treated while leave is extended by section 3C of the Immigration Act 1971 (section 3C leave).
A variation application can seek to vary the:
• Length of time for which you have been permitted to remain in the UK
• The conditions attached to the leave. For example, if you are subject to a condition that allows you to continue to work as before. Any restrictions on the type of employment allowed or the number of hours you can work will still apply.
• Your purpose to remain in the UK
• While your leave is extended by section 3C you cannot make a new application for variation of leave, however Section 3 C (5) allows such variation if there is amended application and there is a difference is fee and the application submitted is a valid application.
Section 3C leave may be canceled where you have failed to comply with a condition attached to your leave you are found to have used deception in seeking leave to remain irrespective of whether successfully or not.
Section 3C leave cannot be canceled for any other reason. The power to cancel section 3C leave is discretionary.
Section 3 D was added to the Immigration Act 1971 Section 11 of the Immigration, Asylum and Nationality Act 2006. section 3 D also extends your leave to remain when your leave to enter or remain is curtailed or revoked, while an appeal against that decision can be brought or is pending.
However, the Immigration Act 2014 changed the appeal rights. Now decisions to curtail or revoke leave no longer give rise to a right of appeal. This means Section 3D now applies only to people whose leave was revoked or curtailed before 6 April 2015 and who have appeals pending against the decision to revoke or curtail their leave.
Section 3D does not allow you to make an application for an extension or variation of your leave. This means that anyone on section 3D leave who wants to make such an application will have to withdraw their appeal.
Should you wish to conduct a right to work check whilst your leave is under section 3 (c) your can use employer checking services - https://www.employer-request-a-check.homeoffice.gov.uk/eligibility
Should you wish to discuss variation of your application or need advice on your immigration matter, please contact Visa and Migration Ltd on 02034111261
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