If you are an employer of migrant workers, it is your responsibility to ensure that your workforce has permission to work in the UK; this is to comply with the right-to-work regime. It is therefore vital to be aware that, if any of your employees’ leave to enter or remain in the UK is due to expire soon, rules under Section 3C of the Immigration Act 1971, can be very favourable providing applications to extend their permission to stay are done in-time.
What is Section 3C of the Immigration Act 1971?
Often referred to as 3C Leave, it is the continuation of leave pending variation decision. This prevents applicants who make an in-time application, from becoming unlawful overstayers while awaiting a decision on their application or where any appeal / administrative review is underway.
What is an in-time application?
A person who is in the UK at the time of the application and has permission to enter or remain is said to have submitted an in-time application. When a person applies for an extension or variation of leave in advance but the application is not approved before their current leave expires, Section 3C extends their current leave until the application is approved (or withdrawn). When a request is made after the applicant’s existing leave has expired, Section 3C does not extend the leave.
When can 3C Leave be relied upon?
The first instance in which it can be granted is pending a decision of an application to the Home Office providing that the application was done in time, and that your employee still had valid leave to enter or remain in the UK at the time of application and one of the following is fulfilled:
- if you have limited leave to either enter or remain in the UK
- if you have applied to extend or vary your leave
- if your application is made before your existing leave expires
- if your leave expires without the application having been decided
- if your application is neither decided nor withdrawn
3C Leave does not apply if your employee’s application is rejected due to being invalid. However, if there has been an omission or error on the application, applicants are provided with one opportunity to make any corrections (within 10 working days). Following a correction, 3C Leave will be treated as starting from where their extant leave expired.
3C will not come into force if an immigration application decision is provided before the expiry of a worker’s permission to enter or remain in the UK; this is the case even with any appeals or administrative reviews lodged.
The second instance in which Section 3C Leave can be used is when an appeal is pending or during the period when an appeal can be made. 3C Leave will end if an appeal is not submitted within the specified time limits. Applicants whose appeals can only be brought after they have left the UK, cannot rely upon Section 3C of the Act.
3C Leave will continue until an appeal decision has been made or the appeal is withdrawn or abandoned. In cases of appeal lodged outside the time period, Section 3C of the Act will not extend leave unless the Tribunal permits a late appeal to proceed.
Finally, Section 3C of the Immigration Act 1971 can be used where an administrative review is pending. A review is classed as pending until either it is decided upon, withdrawn or a new application is made. If any of these three come into play, your worker’s 3C Leave will be ended.
Please note, that administrative reviews need to be requested within the relevant time period (usually 14 days unless the individual has been detained which normally reduces this to 7 days). If they are not, Section 3C will stop at the end of the last day when an in-time application for review could have been made. If an administrative review is applied for out of the required time period, 3C leave cannot be extended. However, if the review is then accepted, 3C leave will run from the date the review was accepted.
How long does Section 3C Leave last?
3C leave will last while no decision is made on your employee’s application as long as it has not been withdrawn. It will also continue once a decision has been received but is within the period in which an appeal can be lodged, or an administrative review can be requested.
If an appeal has been lodged or an administrative review requested, Section 3C Leave will be extended for the time taken for a decision to be made unless the appeal or review is withdrawn or abandoned.
What work rights are there under Section 3C of the Immigration Act 1971?
Permission to remain in the UK under Section 3C will usually be subject to the same conditions attached to your employee’s extant leave. Therefore, if your employee has the right to undertake paid employment, they can continue to do so under Section 3C Right to Work. However, any previous restriction on that work will still stand.
Can leave extended under Section 3C be cancelled?
The Immigration Act 2016 introduced a new Section 3A which gave the power for Section 3C to be cancelled should the applicant:
- fail to comply with a condition applied to the leave; or
- has used/uses deception in seeking leave to remain (whether successful or not)
The decision to cancel is delegated to an immigration official and, it is for the official to demonstrate either breach of conditions or deception. It is important to note, that any cancellation is discretionary and all circumstances surrounding a breach or deception must be considered.
Cancellation of 3C Leave due to the above would have profound consequences. As a result, an alleged transgressor would have no leaves, making them an illegal overstayer until a decision is made by the Home Office. This could take up to a year.
Conclusion
If any of your workers’ leave to enter or remain in the UK is due to end soon, it is paramount that an application to extend their stay under Section 3C is made within the time restraints to ensure that your employee has the best chance of being granted an extension. This will allow them to continue under their current conditions relating to work, renting a house, and having a bank account and a driving licence while awaiting a variation decision. Without this, once their leave to enter or remain in the UK has lapsed, they would become an illegal overstayers with all the associated consequences.
A Y & J Solicitors is a specialist immigration law firm, with extensive experience in Section 3C of the Immigration Act 1971. We have an in-depth understanding of immigration law and are professional and results-focused. For assistance with assessing whether you or your employee has or had valid Section 3C Leave, or any other UK immigration law concerns, please contact us at +44 20 7404 7933 or [email protected] today. We’re here to help!
