Sections 3C and 3D of the Immigration Act, 1971.
Deciding on an extension of leave application often can’t be completed before the current leave period expires. To ensure applicants don’t unintentionally become overstayers, Section 118 of the Nationality, Immigration, and Asylum Act 2002 introduced an amendment to the Immigration Act 1971. This amendment, Section 3C (leave to remain), automatically extends the leave of individuals who apply for further leave to remain while their existing leave is still valid.
Technically, the leave is “treated as continuing”.
To benefit, a person must have existing leave to enter or remain at the time when their valid application is made. Section 3C (leave to remain) then prevents such an applicant from becoming an overstayer during the period in which their application for a variation of leave remains undecided and, thereafter, while an Immigration appeal against any refusal could be brought or is pending.
To prevent people from becoming overstayers while exercising a right of appeal against a decision to curtail or to revoke leave to enter or remain, section 11 of the Immigration, Asylum and Nationality Act 2006 added Section 3D to the Immigration Act 1971. When leave to enter or remain is curtailed or revoked, section 3D extends it while an
What is my Status when my Immigration application is pending?
The appeal could be brought or is pending.
Key points:
- a) Section 3C (leave to remain) only applies where an application for extension of stay is made before the expiry of the person’s leave and the leave expires before the application for variation has been decided;
b) Its effect is to extend the leave and any conditions attached to it while the application is neither decided nor withdrawn, while an in-country appeal could be brought, or, while an Immigration appeal is pending;
c) Section 3C (leave to remain) does not apply if an application is refused before the substantive leave expires;
d) Section 3C (leave to remain) does not apply where a person’s limited leave has already expired at the time of the application.
Applications lodged during the currency of limited leave
If two or more applications are made during the currency of substantive leave to enter or remain and are undecided, they should be decided at the same time so that if 3C (leave to remain) is triggered, it will expire at the same time for both applications. If section 3C (leave to remain) is triggered after multiple applications have been made, and if exceptionally the applications are not decided together, leave will be treated as continuing until the end of the time limit for appealing against the last decision made.
Applications lodged during a leave under sections 3C and 3D
While either section 3C or 3D leave is in force, the applicant is not entitled to make any more applications for variation of leave to enter or remain. So even someone who marries after making an application to remain as a student cannot, while they have left under section 3C, make a fresh application on the basis of the marriage.
On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds.
Varying an Application Before a Decision
When an applicant decides to vary their application before a decision is made, they must complete the necessary prescribed form to submit the variation. This ensures that all the grounds for remaining in the UK are considered within the same application, leading to a single decision and a unified appeal if needed. This approach supports the “one-stop” principle, which aims to streamline the immigration process: one application, one decision, one appeal.
Varying an Application Post-Decision
If an applicant seeks to vary their application after a decision has been made, they can present additional grounds during the Immigration appeal process. Although the process may resemble submitting a fresh application, the key difference lies in ensuring that all reasons for remaining in the UK are addressed within a single legal proceeding. This method helps maintain the integrity and efficiency of the appeal process, a principle established by the 1999 Act and reinforced by subsequent legislation.
The Role of Section 3C in the Appeal Process
Section 3C of the Immigration Act 1971 clearly differentiates between the decision on an application and the Immigration appeal against that decision. Once a decision is made, the original application is no longer active, meaning it cannot be varied under section 3C(5). Any new information or grounds presented by the applicant must be addressed during the Immigration appeal, rather than as a variation of the original application. This ensures clarity and consistency in how immigration decisions and appeals are managed.
When section 3D applies, leave has been curtailed or revoked. Thus, there is no application for the variation of leave and the question of whether an application can be varied or not does not arise.
For detailed information about 3C and 3D contact our team of Expert Immigration Solicitors.
So for professional and sympathetic advice, kindly feel free to contact our Immigration Solicitors in London and find out how you will be protected by 3C and 3D
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