SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971
It is often not possible to decide an application for an extension of leave until after the period of leave has expired. To prevent applicants from becoming overstayers through no fault of their own,
section 118 of the Nationality, Immigration and Asylum Act 2002 introduced an amended section 3C (leave to remain) into the Immigration Act 1971.
Section 3C (leave to remain) automatically extends the leave of a person who has made an application for further leave to remain during a period of extant leave.
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 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 becoming overstayer 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 a section 3D to the Immigration Act 1971. When leave to enter or remain is curtailed or revoked, section 3D extends it while an
Immigration Appeal could be brought or is pending.
- 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b) Its effect is to extend the leave and any conditions attached to it while the application is neither decided or withdrawn, while an in-country appeal could be brought, or, while an Immigration appeal is pending;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 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 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 leave 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.
If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at Immigration appeal. As a result, there may be little difference in practice between a fresh application and a request to vary an existing application. The distinction is made to ensure that all a person’s grounds for wishing to remain in the UK result in one decision and thus one appeal. This ‘one-stop ‘ principle – one application, one decision, one appeal – is essential to the operation of the appeal process that was introduced in the 1999 Act and has been extended by subsequent Acts.
However section 3C (leave to remain) makes a clear distinction between the decision on the application and the Immigration appeal against that decision. Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C (5). So any new information will fall to be dealt with during the course of the Immigration appeal rather than as a variation of the original application.
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.
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