The Home Office have issued a new updated version of its policy on section 3(c) and 3(d). Section 3(c) and 3(d) leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that where a person makes a valid application to extend her leave to enter or remain in the UK and the application is refused that person’s immigration status will be extended during any waiting time for the application to be decided or for the appeal to be decided. Except that this is not quite the case any longer.
Section 3(c) was amended by the Immigration Act 2014 and no longer protects those who make an application or appeal, if the decision was made by the Home Office before the person’s leave expired. So where the decision is made after the person’s leave has expired section 3(c) continues to work as before. This is particularly relevant for some of our cases. One of our clients was granted two periods of discretionary leave to remain and is now making an application for settlement after six years. If she makes her application in good time, 28 days before her leave is due to expire, and the application is refused a week later, because an immigration officer made a mistake then she can appeal. When her leave expires whilst the appeal is pending the fact that she is pursuing the appeal doesn’t help her as she becomes an over stayer and over staying is a criminal offence. When she wins her appeal this cannot alter the fact that she has become an over stayer. So the fact that her leave expired whilst she was waiting for an appeal did not protect her. Had she waited to make her extension application until the day before her leave was due to expire any refusal would have come after the expiry of her leave and therefore her appeal in section 3(c) would protect her.
The moral of the story is don’t make the applications well in advance but wait to the very last minute.