The following guide for employers of migrant workers, whose leave to enter or remain in the UK is soon due to expire, provides a detailed look at how the ‘section 3C leave’ rules work in favour of applicants, provided they make an in-time application to extend their permission to stay. This can be vital when ensuring that employers comply with the right to work regime, and in ensuring that their migrant workforce has ongoing permission to work in the UK.
What is section 3C of the Immigration Act 1971?
Section 3C of the Immigration Act 1971 is described as ‘continuation of leave pending variation decision’. The purpose of section 3C is to prevent a migrant worker who has made an in-time application to extend their leave — while awaiting a decision on their application, and while any appeal or administrative review of any refusal decision is pending — from becoming an overstayer. The provisions of Section 3C are essentially designed to prevent a person from being in the UK unlawfully while awaiting or appealing a decision.
When does section 3C of the Immigration Act 1971 apply?
Leave under 3C of the 1971 Act can be granted either:
- pending a decision on application to the Home Office
- pending an appeal to the Immigration Tribunal or Court of Appeal (CA)
- pending an administrative review by the Home Office.
Pending a decision on application
A migrant worker will have section 3C leave if:
- they have limited leave to either enter or remain in the UK
- they have applied to extend or vary that leave
- the application is made before their existing leave expires
- their leave expires without the application having been decided
- the application is neither decided nor withdrawn.
Provided a worker has made an in-time application to extend or vary their existing leave — where they still have valid leave to enter or remain in the UK at the time of application — and a decision is not made on that application before expiry of their leave, section 3C leave will serve to extend permission to be in the UK until the application is decided or withdrawn.
Section 3C does not, however, serve to extend an individual’s leave where the application is made after their current leave has expired. Equally, section 3C leave will not apply where an application to extend or vary leave is rejected as invalid, although 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.
Where an application is accepted as valid — following correction of any omission or error — then the application should be treated by the Home Office as valid from the date it was first made, such that the applicant’s section 3C leave will be treated as starting from the date when their extant leave expired. For example, if a migrant worker’s leave expires on 31 July 2022, and an invalid application is submitted that day to extend leave, and the application is subsequently validated after any missing documents are provided by the applicant on 7 August, their leave will have been extended by section 3C from the 1 August 2022.
If a decision on an immigration application is made prior to expiry of a worker’s permission, section 3C leave will not be triggered, even if they lodge an appeal or request an administrative review by the relevant deadline. This is because section 3C only applies where a decision is not made on an application before leave runs out.
Pending an appeal
Section 3C leave will continue during any period when:
- an in-country appeal could be brought, subject to the Tribunal and CA time limits for filing an appeal, ignoring any possibility of a late appeal where permission has been granted
- the appeal is pending, meaning that it has been lodged but has not been finally determined.
In broad terms, a worker’s leave can be extended by section 3C of the Immigration Act 1971 during the period when they are able to appeal or an appeal is pending. An appeal will be classed as pending until either it is finally determined, withdrawn or abandoned.
However, section 3C leave will end if a worker does not appeal or seek permission to appeal within the relevant time limits. Where an appeal is made out of time, it does not extend leave under section 3C of the 1971 Act, although if the Tribunal grants permission for a late appeal to proceed, section 3C leave will resurrect from the date that the appeal was filed.
For example, a migrant worker with section 3C leave is sent a refusal decision on 1 August 2022 and has 14 days to appeal. An appeal is lodged out of time on 1 September and the worker remains in the UK. On 21 September, the Tribunal extends time to appeal. The worker will have had section 3C leave until 15 August 2022, at which point the time limit for appealing passed and their section 3C leave ended. However, section 3C leave will be resurrected on 1 September 2022 when the notice of appeal was lodged with the Tribunal.
In contrast, if a migrant worker does not already have leave under section 3C of the Immigration Act 1971, the fact that they are entitled to an in-country right of appeal against a Home Office decision will not give them section 3C leave. Even if an appeal is lodged out of time and the Tribunal gives permission for the late appeal to proceed, this does not change the fact that the worker never had section 3C leave. Equally, they will not have section 3C leave during an appeal, where that appeal can only be brought after they have left the UK.
Pending an administrative review
Section 3C leave will continue during any period when:
- an administrative review could be sought
- the administrative review is pending, in that it has not been determined
- no new application for leave to remain has been made.
Where a migrant worker has section 3C leave following an in-time application to extend that leave and there is a right to administrative review of the refusal of that application, section 3C leave will continue for the period during which an administrative review is pending. An administrative review will be classed as pending until either it is determined, withdrawn or a fresh application is made which brings the worker’s section 3C leave to an end.
However, if any worker entitled to seek administrative review of a refusal decision does not request a review within the relevant time limit, section 3C leave will lapse at the end of the last day on which they could have made an in-time application for administrative review. The time limit for applying is typically 14 days, or 7 days if the individual has been detained.
Where an administrative review is made out of time, it does not extend 3C leave, but if the administrative review is subsequently accepted, 3C leave will run from the decision to accept it. For example, an administrative review is lodged on the 1 September 2022, several days out of time, meaning that the applicant will remain without 3C leave. On the 21 October, the decision is taken by the Home Office to accept the administrative review out of time, meaning that the worker will be treated as having 3C leave from that date.
As with appeals, if a person does not already have section 3C leave, the fact that they are entitled to seek administrative review of a refusal decision does not give them section 3C leave, even if an application for a review is sought in-time or an out of time review is accepted.
How long does leave last under section 3C of the Immigration Act 1971?
Section 3C(2) of the Immigration Act 1971 provides that, once triggered, 3C leave will last for as long as one of the following applies: no decision is made on an application, and it has not been withdrawn, or the applicant has received a decision on their application but is still within the time limit for lodging an appeal or requesting an administrative review.
Section 3C leave will also extend to the time taken for a decision to be given on an appeal or review, where an application is made by a worker for an appeal or review, or until such appeal or review is either withdrawn or abandoned. In broad terms, this means that section 3C leave will only come to an end once an application has been decided, and any appeal or review rights have been completely exhausted. However, under section 3C(3) of the Immigration Act 1971, section 3C leave shall lapse if the migrant worker leaves the UK.
Can a person work under section 3C of the Immigration Act 1971?
Where 3C leave applies, permission to remain in the UK will usually remain subject to the same conditions attached to a person’s extant leave, although these can sometimes be varied. This means that anyone whose permission allowed them to undertake paid employment, may continue to work as before. This is commonly known as the section 3C right to work.
However, any restrictions on the type of employment allowed under any previous grant of leave, or the number of hours that a worker can undertake, will continue to apply as before.
When can leave be cancelled under section 3C of the Immigration Act 1971?
Section 3C(3A) — where the power to cancel section 3C leave was introduced by the Immigration Act 2016— provides that section 3C leave may only be cancelled if:
- the applicant has failed to comply with a condition attached to the current or any previous grant of leave to enter or remain in the UK, although the breach must be of sufficient gravity to warrant such action. This means that leave must not be cancelled where the breach is so minor that a cancellation decision would be disproportionate.
- the applicant has used deception in their current or any previous immigration application, regardless of whether or not their attempt to deceive was successful, unless it was known that deception had been used in a previous application and leave was still granted.
Where the Home Office alleges that there has been a failure to comply with a condition of leave, or that an applicant has used deception, the burden of proof is on the caseworker to demonstrate that breach or deception, where the standard of proof is on the balance of probabilities. This means, for example, that they must be able to prove that it is more likely than not that the applicant used deception in their application for permission to stay.
Additionally, even where either one of the two conditions giving rise to a power to cancel Section 3C leave arise, the power to cancel is discretionary. This means that the decision-maker must consider all the circumstances of the case before making a cancellation decision. For example, consideration must be given as to whether any incorrect information in an application was made in error or deliberately, and whether any false document submitted in support of an application was done so in good faith or in the knowledge that it was false.
Save for the two conditions set out above providing the basis of the power to cancel leave under section 3C of the Immigration Act 1971, section 3C leave cannot be cancelled for any other reason, where other general powers to curtail leave do not apply to section 3C leave. The net effect of these combined rules, is that section 3C leave is rarely cancelled.
Proving Lawful Status with Section 3C Leave
Individuals with Section 3c leave often struggle to demonstrate their right to work, rent, or access other services. The issue arises because those with Section 3c leave cannot use a Home Office-generated share code to prove their right to work and must rely on the Employer Checking Service, which is prone to errors and is generally under-used by employers and those conducting checks for right to rent, NHS charging, driving licenses and bank accounts.
The issue was central to the case of R (Refugee and Migrant Forum of Essex and London (RAMFEL) & Anor) v Secretary of State for the Home Department, where the Home Secretary’s failure to provide digital proof of status to those with section 3C leave was held to be unlawful. Read our summary of the decision here.
In its decision, the court acknowledged that a significant number of individuals had faced severe hardships due to the inability to provide immediate documentary proof of their immigration status. It ruled that the Home Office’s failure to provide digital proof of status to individuals on Section 3c leave was unlawful and mandated that the Home Secretary must provide such digital proof.
Additionally, the court found that the Home Secretary had breached the duty under Section 55 of the Borders, Citizenship, and Immigration Act 2009 by not considering the impact on children.
Following this ruling, the Home Office was ordered to update its policy on Section 3c leave, ensuring that all those affected have a means of proving their status. Also, as the Home Office transitions to eVisas, it will now need to include individuals on Section 3c leave in this move to a digital system.
As such, the court has asked the parties involved to agree on what reasonable measures can be implemented and within what timeframe, and to determine whether a mandatory order should be issued to ensure the Secretary of State complies with this agreement. The solution is expected to be the provision of a digital status, similar to the Certificate of Application issued under the EU Settlement Scheme.
Need assistance?
DavidsonMorris’ immigration lawyers can help with all aspects of immigration compliance, including guidance on effective and efficient procedures to conduct Right to Work checks and meet prevention of illegal working duties. We also offer specialist assistance relating to section 3C leave. For help and advice on a specific issue, speak to our experts.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
