The Practical Effect of Section 3C Leave And Positively Utilising Home Office Policy Guidance to Maximum Effect

An applicant may inadvertently fail to submit the correct  specified application form and thereby also provide the wrong fee payment or none at all. An applicant may also fail for one reason or the other to have their biometrics taken within the required time limit. These errors and failures may   ultimately result in invalidation of a timely submitted leave application and therefore   rejection with  the result that such an applicant becomes an overstayer.  An invalid application does not extend leave under section 3C of the  1971 Act (as per Iqbal & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 838, mentioned below).  Section 3C does not extend leave where the application is made after the applicant’s current leave has expired.

Considerations of Section 3 leave are therefore important as the practical effect of that leave ending might very well mean that a person’s appeal rights and conditions of leave will be affected negatively. A person who has section 3C leave has the benefit of remaining subject to the conditions attached to their extant leave unless the conditions of their leave are varied by the Home Office- therefore a person subject to a condition allowing employment may continue to work as before. If however a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.

The stated purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. Where an in time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires, section 3C extends the person’s existing leave until the application is decided (or withdrawn).

An appreciation of the following,  in conjunction with Section 3 C leave in relation to it’s continuance or application may be relevant:

  • Effect of Section 3C leave while a “Cart” Judicial Review is pending;
  • Any applicability of Section 3C leave to EEA applications – if not applicable, whether the Home Office can still exercise discretion in relation to the previous EEA rights of residence so as to count that residence as lawful enabling reliance upon the 10year long residence Rule;
  • Effect of Section 3C on allowed or withdrawn appeals;
  • Whether by reliance upon Home Office policy it is possible to submit a valid variation application, in effect superseding a pending one, without falling foul of the effects of the Immigration Act 1971;
  • Whether  by reliance upon Home Office policy Guidance and relevant caselaw,  it is possible to submit a full application under the 10year long residence Rules during an appeal with such an application in effect “dressed up” as a request for variation/amendment of grounds of appeal to the Tribunal for their consideration;
  • Whether it is possible to make a protection or human rights claim while an appeal is pending in relation to an appellant on Section 3C leave.

 

  • EFFECT OF SECTION 3 C LEAVE

Section 3C(2) of the Immigration Act 1971 (as amended) automatically extends a person’s leave if either:

  • they apply for further leave before their current leave expires, while their application is still outstanding, and they do not withdraw the application before a decision is made;
  • an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 for an in-time application for the variation of leave could be brought or is pending

Section 3C(4) of the 1971 Act prevents the applicant from making a new application for a variation of leave while they have 3C leave. This means if an applicant with 3C leave submits a new application, the Home Office can automatically consider this to be void.

However, Section 3C(5) of the 1971 Act allows an applicant with 3C leave to vary their application at any time before it is decided. This means they can ask for their application to be considered on different grounds to their original application.

If a person has 3C leave after the Home Office have made a decision on their application and an appeal is pending or can be brought, they can submit additional grounds of appeal up to the time the appeal is heard, if they have permission from the Tribunal.

Relevant Home Office policy Guidance in this regards  is Leave extended by section 3C (and leave extended by section 3D in transitional cases), Version 6.0, 21 March 2016.

Making a protection or human rights claim while an appeal is pending:

A person who is on section 3C leave cannot amend their application after it has been decided, pending any appeal or administrative Review. A protection or human rights claim can however be made when an appeal is pending. The protection or human rights claim should where possible be decided by the relevant home office caseworker before the pending appeal is determined. The decision should be sent to the claimant and the Immigration Asylum Chamber should be notified (and the Presenting Offices Unit dealing with the pending appeal). Where the claim is granted that may affect the pending appeal. Where the claim is refused and there is an in country right of appeal, the Immigration Asylum Chamber should be requested to link the appeals. The request to link the appeals should be made by the decision maker who has decided the claim.

Where a decision cannot be taken on the claim before the pending appeal is determined, the outstanding claim should be sent to the Presenting Officers Unit dealing with the pending appeal. The presenting officer will decide whether to consent to the outstanding claim being considered at the pending appeal in accordance with the guidance on consent in Rights of Appeal.

Judicial review of the Upper Tribunal – “Cart” JRs:

 Home Office policy Guidance states that where there is a judicial review against the Upper Tribunal’s refusal to grant permission to appeal, the person will not have section 3C leave while the claim is brought, or if it is successful, even if the outcome means that an appeal to the Upper Tribunal proceeds.

EEA applications:

Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006 . An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

Withdrawn decisions:

Where a decision is withdrawn by the Secretary of State and the person has section 3C leave because of a pending appeal or administrative review, their section 3C leave will continue but will revert to leave under section 3C (2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding.

Where the decision is withdrawn after section 3C leave has come to an end, withdrawal of the decision does not mean that the person once again has section 3C leave. This is because section 3C leave can arise and exist only where it is a seamless continuation of leave, either extant leave or section 3C leave. Where there is a break in that leave, such that section 3C leave has come to an end, section 3C leave cannot be resurrected.

Position following an allowed appeal:

Where an appeal has been allowed, the Tribunal in allowing the appeal may have found that the Secretary of State’s original decision was unlawful such that the refusal decision is set aside. This means that the Secretary of State has to remake the decision. The effect on section 3C leave is that it reverts to leave under section 3C (5) during the period between the appeal being allowed and a new decision being made. As the decision has been set aside it is possible for the outstanding application to be varied during the period before it is decided.

 When Section 3C leave ends:

Section 3C leave ends when the person does not appeal or seek permission to appeal within the relevant time limit even if the relevant Tribunal accepts the appeal or the application for permission to appeal out of time.

An appeal is finally determined when the appeal has been heard and decided and permission to onward appeal has not been sought within the prescribed time limits, or permission to appeal has been finally refused (namely there is no possibility of renewing the application for permission to appeal to a different court or tribunal).

Where there is an onward right of appeal to the Upper Tribunal or Court of Appeal, section 3C leave will automatically run until the time limits for onward appeal have expired.

An appeal to the Court of Appeal is finally determined where judgement has been given by the Court of Appeal.

An appeal to the Supreme Court does not extend section 3C leave.

Section 3C leave while an administrative review is pending:

Where a person has section 3C leave following an in-time application to vary leave and there is a right to administrative review of the refusal of that application, section 3C leave continues for the period during which an administrative review is pending.

An administrative review is pending until either:

  • it is withdrawn
  • it is determined
  • a fresh application is made which brings the section 3C leave to an end

The detailed provisions as to when an administrative review is pending are set out in Appendix AR to the Immigration Rules. The guidance on administrative review contains more details on when an administrative review is pending.

If a person entitled to seek administrative review of a decision does not request administrative review within the relevant time limit, section 3C leave ends at the end of the last day on which they could have made an in time application for administrative review.

The time limits for seeking administrative review are 14 days for persons not in detention and 7 days for persons in detention.

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 that administrative review is sought in-time.

Where the person makes an out-of time application for administrative review and the Home Office accepts the administrative review out of time the person will not have section 3C leave during the administrative review.

Where the Home Office withdraws a decision as a result of the administrative review section 3C leave reverts to leave under section 3C(5). This is because section 3C leave is no longer being extended as a consequence of an appeal being pending and reverts to leave which is being extended whilst a decision is awaited. As the decision has been withdrawn it is possible for the outstanding application to be varied during the period before it is decided.

When an administrative review is pending against refusal of an application, if a person submits a fresh application the administrative review will no longer be pending. This is because the Immigration Rules (Appendix AR 2.10) states that the administrative review will cease to be pending the day prior to the day on which the fresh valid application is submitted.

If a protection or human rights claim is made while an Administrative Review is pending the claim will have the affect of bringing the Administrative Review to an end.

Where an administrative review is no longer pending, section 3C leave comes to an end. Accordingly, where a fresh application is made after an administrative review has been refused it can be accepted because section 3C leave will have come to an end. Where the application is invalid the administrative review and the section 3C leave will not come to an end until such time as the application is accepted as being valid.

  • OTHER RELEVANT LEGISLSATION AND PROVISIONS

Section 104 of the Nationality, Immigration and Asylum Act 2002 sets out when an appeal is pending. An appeal is pending until either:

  • it is finally determined
  • it is withdrawn
  • it is abandoned

Where there is an in- country right of appeal under section 82 (1) of the Nationality, Asylum Immigration Act 2002, an appeal is pending during the period it could be brought. Rule 19 of Tribunal Procedure Rules 2014 sets out the time limit for appealing to the First-tier Tribunal and Rule 33 sets out the time limit for seeking permission from the First-tier Tribunal to appeal to the Upper Tribunal. Rule 17 of the First Tier Tribunal Procedure Rules 2014 governs the withdrawal of appeals.

By reference to the Upper Tribunal Procedure Rules, the time limit for appealing to the Upper Tribunal is set out at Rule 21.  The time limit for seeking permission to appeal to the Court of Appeal from the Upper Tribunal is set out Rule 44.  Rule 17 of the Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 governs the withdrawal of appeals in the Upper Tribunal.

The Civil Procedure Rules set out the time limit to appeal to the Court of Appeal, Rule 52.4.

An appeal is treated as abandoned if the appellant is granted leave to enter or remain in the UK (section 104(4A) of the 2002 Act) unless the appellant indicates that they want the appeal to continue on asylum or humanitarian protection grounds. However section 3C leave will end when leave is granted even if the appeal continues.

Section 92(8) of the 2002 Act states that an appeal is abandoned if a person leaves the UK before the appeal is finally determined, unless the claim to which the appeal relates has been certified under section 94(1), 94(7) or 94B of the 2002 Act. However, section 3C leave will end when a person leaves the UK in any event.

  • VALIDITY OF APPLICATIONS AND EFFECT OF SECTION 3C LEAVE

Current Home Office Guidance,  Specified Application Forms and Procedures, Version 18, 18 March 2016, is based on the Immigration Rules (paragraph A34-34K) and the Immigration (Health Charge) Order 2015.  The guidance sets out  the consequences of not complying with the current specified requirements and the procedures. The guidance also tells Home Office  caseworkers how they  can contact  an applicant, in writing, to give the applicant a single opportunity to correct any omission or error they have made which could make their application invalid.

In relation to general issues on validity of applications, reference may also be made to a previous article, Home Office Applications: The Very Things That Are Likely to Get An Application Rejected As Invalid By The Home Office, https://ukimmigrationjusticewatch.wordpress.com/2015/11/04/home-office-applications-the-very-things-that-are-likely-to-get-an-application-rejected-as-invalid-by-the-home-office/

Mandatory Requirements:

In summary, an application on a specified application form must meet the requirements specified in paragraph 34 of the Immigration Rules and the Immigration (Health Charge) Order 2015, to be valid.

An applicant must:

  • make the application or claim using the specified form;
  • pay any specified fee in line with the method specified in the application form, separate payment form and/or related guidance notes;
  • pay the immigration health surcharge fee (unless they are exempt);
  • complete any section of the form designated as mandatory ;
  • make an appointment to provide biometric information by the specified date if the application form and/or related guidance notes ask them to do so;
  • provide photographs and documents specified as mandatory in the application form and/or related guidance notes:
  • photographs must be in the same format as stated in application form and or related guidance notes
  • if the application or claim is made online, the applicant must submit the photographs and documents by the method and date specified in the acknowledgement of the online application
  • sign the application form, and if applicable, the applicant’s spouse, civil partner, same-sex partner or unmarried partner must also sign the form – for online pplications, the applicant or their representative must complete the confirmation box

If an applicant has not sent all the mandatory documents, Home Office Caseworkers must contact them or their representative, in writing, to give them a single opportunity to correct any omission or error they have made which could make their application invalid. The Home Office must give an applicant 10 business days to respond to their request.

There are transitional arrangements in place for applications made up to 21 days after the date a new form is specified. Paragraph 34I of the Immigration Rules allows applicants to make a valid application on an old version of a form if the:

  • form they used was permitted for the purpose being applied for
  • form is the one in use immediately before the introduction of the current version of the form
  • application was made up to 21 days after the introduction of the new or revised form Home Office Caseworkers are required to consider these applications in the same way as if they had been made on the newly specified form. The application must however still meet the other requirements of paragraph 34A and the Immigration (Health Charge) Order 2015. These requirements include paying the correct fee specified by the fee regulations on the day the application is made, not the fee stated on the old version of the form.

Retention of administration fee:

From 18 March 2016, new fees regulations allow the Home Office to retain an administration fee. This applies to all charged in country applications for leave to remain where a fee has been paid but where the application contains errors or is missing information and is therefore rejected as invalid.

However, an administration fee cannot be retained if an application is void, or the applicant has died.

Where the fee has been paid but the application is invalid, the Home Office caseworker must reject the application and process a refund for the application minus £25 per person included in the application. This applies to applications submitted on or after 18 March 2016.

If an application is invalid because a fee has not been paid, an administration fee cannot be retained. However, if the incorrect fee has been paid, an administration fee must be retained against the incorrect fee.

Applicants may be given an opportunity to rectify any errors or omissions within 10 business days. If they fail to provide the requested information, the application will be rejected and the administrative fee retention process will apply.

Procedure for varying an application and effect of Section 3C leave:

An applicant can vary an application at any time before a decision is made on it. They can do this if they want to be considered for a grant of leave on a different basis to their initial application.

If the applicant wishes to vary their leave for a purpose where a specified application form is required, they must complete the new form and meet all the requirements of paragraph 34A of the Immigration Rules and the Immigration (Health Charge) Order 2015, for the variation to be valid. A person who varies their application does not have to pay an additional fee unless the new ground they want to be considered under has a higher fee than their original application. In this case, they must pay the difference between the original fee and the new higher fee. This means a valid variation will look like a new application.

The application date remains the date of the original application and not the date of the variation. This is necessary for consideration when the Home Office is deciding if the applicant benefits from section 3C leave.

If a variation meets all the requirements of paragraph 34A except including photographs, the Home Office can use discretion and accept the variation as valid if the applicant and their dependants, if appropriate, have already submitted photographs with their initial application.

A person cannot vary their leave if they have an appeal either pending or which could be brought.

A variation of a dependant’s application is only valid if they were included on the original application. If they were not included on the original application, the dependant must  make a separate application and  pay the relevant fee.

If an application for leave to remain under points-based system (PBS) is varied because the applicant would be working for or studying at a different sponsor, Home Office Caseworkers must use the date on which the application was varied when making their decision. This date must be used for determining which rules and guidance the application must be considered under, and what date y the home office will use for calculating time-bound requirements such as maintenance. The application date for the purpose of determining continuity of leave and whether the applicant is covered by 3C leave must be the date on which the original application was made.

  • 10YEAR LONG RESIDENCE RULES GENERALLY AND APPLICABILITY OF SECTION 3C LEAVE

General applicability of the continuous lawful 10year Long Residence Rules:

Settlement can be granted under paragraphs 276A-276D of the Immigration Rules after a period of 10 years continuous lawful residence. The relevant Home Office Guidance is Long residence, version 13.0, 8 May 2015.

There is no provision in the long residence rules to grant indefinite leave to enter. Before 2 April 2007 it was not possible to grant limited leave to remain on the basis of long residence. On 2 April 2007, paragraph 276A1 and paragraph 276A2 were added to the Immigration Rules. This allows long residence applicants to be granted an extension of limited leave to remain.

On most occasions, a person who meets the requirements for continuous lawful residence should be granted indefinite leave to remain. This is unless a grant is against the public interest. If an applicant has the required amount of continuous lawful residence, they do not automatically qualify for settlement unless they can demonstrate they meet all the requirements of the long residence rules. Where they have 10 years continuous lawful UK residence but fail to meet 276B (iii) and/or (iv), they must be considered for a grant of limited leave under the long residence rules. Rule 276B (iii) and/or (iv) say that the applicant:

  • does not fall for refusal under the general grounds for refusal
  • has sufficient knowledge of the English language, and about life in the UK unless they are under the age of 18 or aged 65 or over at the time they make their application

Extension applications can be made on application form FLR(LR) whilst indefinite leave to remain applications can be made on form SET(LR) .

Once an applicant has built up a period of 10 years continuous lawful residence, there is no limit on the length of time afterwards when they can apply. This means they could leave the UK, re-enter on any lawful basis, and apply for settlement from within the UK based on a 10 year period of continuous lawful residence they built up in the past. There is also nothing to prevent a person relying on a 10 year period that they may have relied on in a previous application or grant.

10years long residence and overstaying: out of time applications:

Time the applicant has spent in the UK with 3C leave also counts towards lawful residence.

In relation to periods of overstaying, when refusing an application on the grounds it was made by an applicant who has overstayed by more than 28 days, Home Office caseworkers  must consider any evidence of exceptional circumstances which prevented an  applicant from applying within the first 28 days of overstaying.  The threshold for what constitutes ‘exceptional circumstances’ is high, but could include delays resulting from unexpected or unforeseeable causes. For example:

  • serious illness which meant the applicant or their representative was not able to submit the application in time – this must be supported by appropriate medical documentation
  • travel or postal delays which meant the applicant or their representative was not able to submit the application in time
  • inability to provide necessary documents – this would only apply in exceptional or unavoidable circumstances beyond the applicant’s control. For example, it is the fault of the Home Office because it lost or delayed returning travel documents or there is a delay because the applicant cannot replace their documents quickly because of theft, fire or flood. The applicant must send evidence of the date of loss and the date replacement documents were sought.

When granting leave in these circumstances, an applicant must be granted leave outside the rules for the same duration and conditions that would have applied had they been granted leave under the rules.

Time spent in UK with a right to reside under EEA regulations:

Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for third country nationals who have spent time in the UK as:

  • the spouse, civil partner or other family member of an European Union (EU)
  • an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence
  • former family members who have retained a right of residence

During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain. Home Office policy however provides that the Caseworkers must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK. Sufficient evidence must be provided to demonstrate that the applicant has been exercising treaty rights throughout any period that they are seeking to rely on for the purposes of meeting the long residence rules. This however does not affect the rights of family members of EEA nationals to permanent residence in the UK, where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006.

Temporary Admission or Release:

Temporary admission or release only qualifies as lawful residence if leave to enter or leave to remain is later granted. For example, if an applicant is granted leave following a period of temporary admission, the time on temporary admission counts as lawful residence.

Variation of Applications and Section 3C Leave- time awaiting a decision on an application or appeal:

A variation application can seek to vary the:

  • length of time for which the person is permitted to remain in the UK
  • the condition attached to the leave
  • the purpose for which the person is permitted to remain in the UK

A person cannot make a fresh application for leave while they have 3C leave pending the outcome of a decision on their outstanding application. This means that someone who reaches the 10 year threshold during this leave cannot apply for indefinite leave.

If the application that has generated the 3C leave has not yet been decided, the applicant can vary the grounds of that application to include a request for leave on the basis of long residence. If a long residence application would attract a higher fee than the initial application, the applicant must pay the balance before the varied application can be considered.

A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.

If an  applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, Home Office caseworker are  directed to  void the long residence application and refund the fee. They  must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. They must  also send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal.

  • CASELAW:  SECTION 3C LEAVE DOES NOT APPLY WHERE THE APPLICATION TO EXTEND OR VARY LEAVE IS INVALID

Iqbal & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 838:

The claim related to three interrelated appeals all concerned with the proper construction of section 3C of the Immigration Act 1971. In each case the appellant made an application before leave expired which was treated as invalid by the Secretary of State because it was not presented in accordance with the rules. In each case there was a further application made after leave had expired, which was unsuccessful. In each case, if the original invalid application had triggered the automatic extension, the application would have had to be considered differently and may well have succeeded. The appellants submitted that on a proper construction of section 3C, leave had been extended notwithstanding that the original applications were invalid under the rules.

The Facts:

The Court of Appeal initially focused on the facts in Mr Iqbal as it was conceded that the other two appeals would be resolved by the answer to that appeal(Mr Mirza’s application was rejected on the grounds that it was invalid because he had not enabled the Home Office to obtain the appropriate fee from the bank; Ms Ehsan was told by the Home Office that if biometric information was not provided the application would be treated as invalid. She did not provide the information and her application was rejected as being invalid).

Mr Iqbal, a Pakistan national was granted entry clearance in January 2007 to come to the UK as a student. Initially this was until 31 May 2008 but a fresh application was later issued giving leave to remain until 30 April 2011. On the 19 April, before leave had expired, Mr Iqbal made an application for leave to remain as a Tier 4 (General) Student. Unfortunately he did not submit the appropriate fee with his application because he had not appreciated that it had recently been increased by some £29. On 26 April the application and supporting documents were returned to him and he received them on the 2 May, after leave had expired. He was informed that the failure to pay the proper fee meant that his application was invalid. He was also told that because of its invalidity, “this attempted application cannot be considered”.  Mr Iqbal submitted a further application on 6 May, after his leave had expired, to remain in a temporary capacity as a student at the William Shakespeare College. Later he sought to amend this by naming the Equinox College as the appropriate educational institution. On 11 October the Home Office confirmed that he could change the establishment at any time before a decision on his application was taken. However, his CAS for Equinox College was automatically rendered invalid in May 2012 when that college lost its licence, and on 18 March 2013 the application was refused because he had not identified an approved college. If he had been entitled to the automatic extension of leave under section 3C, then he would have been given 60 days in which to identify another approved institution who would accept him. He was not given that opportunity because the Secretary of State considered that he had no right to remain because the relevant application had been made after his leave had expired.

He lodged a notice of appeal. By a decision dated 16 April 2013 the First Tier Tribunal determined that he had no right of appeal under the Nationality, Immigration and Asylum Act 2002. He sought judicial review of that decision and HH Judge Bird refused permission on the papers. He renewed the application and it was remitted to the Upper Tribunal. Again permission was refused following an oral hearing on 14 November 2013. An appeal was lodged out of time with the Court of Appeal. Gloster LJ granted permission and an extension of time.

The Court’s considerations were as follows:

  • In their considerations , the Court of Appeal noted that the effect of section 3C was succinctly summarised by Richards LJ in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; [2009] Imm A R 499 para. 35, in a judgment with which Wall and Laws LJJ agreed, as follows:
  • “[35] The key to the matter is an understanding of how s.3C operates. I have set the section out at para 10 above. The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2), a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.”
  • The Court of Appeal in Iqbal also stated that it was pertinent to observe that the court in JH (Zimbabwe) acted on the assumption, apparently not disputed by anyone, that the statutory extension would only apply if the application to vary was a valid one under the rules.
  • It was argued on behalf of all three appellants, that the premise on which the Upper Tribunal acted, namely that an invalid application was not an application falling within the scope of section 3C, was erroneous. It was contended that the original application did engage the automatic extension provisions in section 3C. It was also submitted that even if the notification of invalidity is capable of constituting a relevant decision, the procedure adopted by the Secretary of State in Mr Iqbal’s case was unfair and that rendered the decision invalid. Accordingly, the original application remained good and section 3C automatically extended his leave to remain.
  • The Court of Appeal in Iqbal considered that it has always been assumed that an application must be one which is validly made in accordance with the rules and the point has not, ever been in issue. When the version of section 3C now under consideration was introduced by the Nationality, Immigration and Asylum Act 2002, a power was given to the Secretary of State by section 31A of the 1971 Act to enable regulations to be made prescribing the formal requirements of certain applications and also stipulating the consequences of failure, including when an application would be invalidated. That power was at the time of the decisions challenged in these appeals found in section 50 of the Immigration, Asylum and Nationality Act 2006. Similar powers were given by section 51 with respect to the charging of fees and the consequences of non-compliance. Parliament would have known, therefore, that rules would be adopted regulating the form of applications, and identifying when breaches would render the applications invalid. It is true that Parliament would not have known how those powers would be exercised, but in the Court’ s view it was a cogent reading of the section to construe the reference to an application as one which is a proper application as defined by rules which Parliament has permitted the Secretary of State to formulate.
  • In relation to the Secretary of State’s submissions that the notification of invalidity constitutes a relevant decision within the meaning of section 3C, in the Court’s judgment this was wholly unsustainable. In order to constitute a decision, there must be a determination of the application to vary. That was not what the rejection of an application achieves. It was effectively telling the applicant that no decision had been made because no proper application had been received. Indeed, Mr Iqbal was told that his attempted application could not be considered. Furthermore, an applicant may, after the rejection, make a fresh application (which may sometimes be before leave has expired) so as to have the substantive issue determined. If the original application has already been determined, the Court could see no room in such circumstances for another determination. Moreover, if the effect was to decide the application as one refusing leave, there would be a right of appeal, which the Secretary of State submitted was not the case. On the Secretary of State’s submission that this would not be the effect of the rejection of the application, the Court stated that   if it did not have that effect,  they could not see how it could possibly be a relevant decision at all.
  • In relation to the argument   that the decision to reject the application was taken in an unfair manner which rendered it invalid and therefore left the original application in place, the Court of Appeal did not accept this submission. The Court could not see why the Secretary of State would be obliged as a matter of fairness to put in a system which will in effect prioritise those cases where the defect is the failure to accompany the application with the appropriate fees.
  • The Court stated that some of the unacceptable and arbitrary consequences arising from the application of these rules would now be ameliorated following changes to the rules in 2014 as an applicant now has 10 days in order to remedy what would otherwise be an invalid application, however it was noted that those new provisions did not operate retrospectively.
  • In the Court’s judgment, there was no unfairness in the procedure such as to render the decision of the Secretary of State invalid. It followed that no application within the meaning of section 3C was made prior to leave expiring and therefore the automatic extension of leave provided by that section did not come in to play.

*Note: It is currently understood that the case of Iqbal & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 838 was granted permission by the Supreme Court on 23 December 2015 so as  to  hear the 3 linked appeals on  the construction and effect of section 3C of Immigration Act 1971 on 19 October 2016.

CASELAW : SCETION 3C(4) PROHIBITION ON WITHDRAWAL OF APPEAL AND SIMULTANEOUS SUBMISSION OF APPLICATION FOR LEAVE

R (on the application of Patel) v Secretary of State for the Home Department (s.3C(4): simultaneous application – withdrawal) IJR [2015] UKUT 0273 (IAC):

The applicant was a national of India. By an order dated 14 November 2014, the Upper Tribunal granted her permission to challenge a letter dated 4 January 2014 from the secretary of State by which the Home Office rejected her application of 2 July 2013 for leave to remain as a Tier 4 (General) Migrant on the ground that s.3C(4) of the Immigration Act 1971 precluded her from making the application whilst her leave was extended under s.3C. The Secretary of State considered that she had made her application of 2 July 2013 whilst she had an outstanding appeal before the First-tier Tribunal(FtT).

The applicant’s case (in summary) was that she withdrew her appeal and simultaneously made her application for leave and therefore her application was not precluded by s.3C(4). The relevant chronology was as follows:

  • 27 Oct 2009 – Applicant entered the U.K. with entry clearance valid from 27 October 2006 until 25 June 2011 as a Tier 4 (General) Migrant
  •  16 Apr 2011 –  Application for leave to remain as a Tier 4 (General) Migrant
  •   2 Sept 2011  -Licence of sponsor-college revoked
  •  5 Nov 2012 -Secretary of State allowed the applicant a period of leave of 60 days to find another sponsor-college and submit a new application
  •  13 Feb 2013  -Application refused with a right of appeal
  • 28 Feb 2013  – Appeal lodged
  • 2 July 2013  – Email from applicant’s representatives to the Home Office timed at 12:40 stating that they had instructions from the applicant to withdraw her appeal which was listed for hearing on 3 July 2013 before the FtT
  • 2 July 2013 – Letter sent at 15:21 by the applicant’s representatives to the FtT, stating: “…our client would like to withdraw this appeal as they wanted to make [sic] fresh application to the UKBA to extend her status as a Tier 4 (G) student …”
  • 2 July 2013 – Application made for leave to remain as a Tier 4 (General) Migrant
  • 4 July 2013  – “Notice of Withdrawal” (form IA52) sent by the FtT to the parties in appeal number: IA/06726/2013
  •  4 Jan 2014  –  Date of invalidity decision

The Upper Tribunal’s considerations and decision:

  • The principal question in the case was whether the applicant’s application of 2 July 2013 was “made” at a time when she had s.3C leave. If so, her application was prohibited by s.3C(4) and the Secretary of State did not err in law in rejecting her application as invalid.
  • In the Upper Tribunal’s judgement, Section.3C(4) of the 1971 Act prohibits an application for leave to remain that is made on the same day as, and even if said to be contemporaneously with, the applicant’s withdrawal of his or her appeal before the FtT.
  • It was noted that the reason why the grounds contended that section.3C(4) does not prohibit an application that is made contemporaneously with the withdrawal of an appeal is that it was thought – mistakenly – that section.3C(1) and (2) will apply to the new application so the applicant’s leave continues to be extended under s.3C for as long as her application of 2 July 2013 awaits a decision or (if an adverse decision which gives rise to a right of appeal is made) for as long as an appeal may be brought or (if an appeal is brought) for as long as the appeal remains pending.
  • The Upper Tribunal however, considered that this would open section.3C to abuse. It would open the possibility of a series of applications leading to indefinite extension of the original leave. The purpose of s.3C(4), i.e. to prevent a succession of applications for leave leading to indefinite extension of the original leave, would be defeated ( JH (Zimbabwe), para 36).
  • The Upper Tribunal concluded that the applicant’s application of 2 July 2013 was “made” on 2 July 2013 and that, for the purposes of section.3C(4), this meant that the whole of 2 July 2013 counted as the date of her application. It followed that she made her application at a time when her leave was being extended under s.3C because her appeal was still pending, even on her own case, until a moment before 15:31 on 2 July 2013.

 

  • CASELAW: RESTRICTION IN SUBMITTING A FRESH  APPLICATION WHILST APPEAL OUTSTANDING IN ACCORDANCE WITH SECTION 3C

R (on the application of Rashid) v Secretary of State for the Home Department IJR [2015] UKUT 00190 (IAC):

The applicant was a national of Bangladesh who had been granted permission to apply for judicial review of a decision of the Secretayr of State of 20 September 2013 rejecting an application he made on 8 August 2013 for leave to remain as a Tier 4 (General) Student. The Secretary of State refused the application on the ground that the applicant had an outstanding appeal against an earlier decision of 14 January 2013 and he was therefore restricted from making a fresh application for leave whilst his appeal was outstanding in accordance with s.3C of the Immigration Act 1971 (the “1971 Act”).

The applicant arrived in the United Kingdom on 8 May 2010 with entry clearance as a Tier 4 (General) Student valid until 30 April 2012. On 9 March 2012, his Tier 4 leave was extended until 30 May 2013. On 23 October 2012, his sponsor college informed the Secretary of State that he had failed to enrol on his course of study. The following was the subsequent chronology:

  • 14 Nov 2012 – The applicant applied in-time for leave to remain as a Tier 2 (General) migrant.
  •  9 Jan 2013  – The applicant’s leave to remain was curtailed to expire on the same day as he was no longer studying at the approved sponsor for which the leave had been granted.
  •  14 Jan 2013  – The Secretary of State refused the applicant’s Tier 2 application with a right of appeal. The applicant appealed to the First-tier Tribunal (“FtT”).
  •  3 May 2013  – The FtT dismissed his appeal. The applicant was granted permission to appeal to the Upper Tribunal (“UT”).
  •  29 July 2013 –  The UT dismissed the applicant’s appeal. The determination of the UT was sent by post.
  •  8 Aug 2013 – The applicant made a “fresh application” for leave to remain as a Tier 4 (General) student. This is the application that was the subject of the secretary of State’s letter dated 20 September 2013. The application was sent to the secretary of State. It was not sent to the UT but it was included in the claim bundle for the judicial review proceedings.
  •  14 Aug 2013  – Last date on which the applicant could have made an in-time application to the UT for permission to appeal to the Court of Appeal. No such application was made. This was therefore the date that the applicant exhausted his appeal rights.

The Upper Tribunal Judge who granted permission considered it arguable that the Secretary of State erred in law in stating that the applicant was restricted from making a fresh application by virtue of s.3C. The Judge considered it arguable that the applicant’s section 3C leave expired on 29 July 2013 and that the application of 8 August 2013 was made within the period of 28 days provided for in para 245ZX(m) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “IRs”).

The Upper Tribunal noted that the leading authority on the proper construction of s.3C is JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 and referred to paragraphs 35 and 36:

“35. The key to the matter is an understanding of how s.3C operates. I have set the section out at para 10 above. The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2), a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.

36.Once the operation of s.3C is understood, the concern of the tribunal in DA Ghana [[2007] UKAIT 00043] about nullifying the prohibition in subs.(4) if a second application is treated as a variation of the first can be seen to lose its force. A second application can be treated as a variation of the first only up to the point when the Secretary of States makes a decision on the application. There is nothing surprising about subs.(4) having only a limited impact during that period, given that it is qualified by subs.(5) which expressly permits a variation of the first application. Thereafter, however, subs.(4) is effective to prevent any further application which might otherwise have been made right up to the time when an appeal in relation to the first was no longer pending, and to prevent a succession of such applications. Far from being nullified, it retains an important function in avoiding abuse of the system.”

The Upper Tribunal’s considerations included the following:

  • The Upper Tribunal considered that the reasoning in paragraphs 35 and 36 in JH (Zimbabwe) was plain. It required no explanation. It was also noted that at paragraphs 36-40, in JH (Zimbabwe), Richards LJ said that a later application is capable of being treated as a variation of the first application even if it is for a different purpose and on a different form. It was clear from paragraphs 43-46, that the question whether a second “application” is an application as such or a variation of an earlier application is a question of fact, notwithstanding that the second “application” is not expressly put forward as a variation of the first. What was plain beyond any doubt was that once the Secretary of State has decided the original application, it cannot be varied by a later application because there is nothing left to vary once a decision has been made.
  • The Upper Tribunal stated that a purported “application” for leave or variation of leave, made after a decision has been made on an earlier application, may operate (if it is made during the period of an appeal) as an amendment of the grounds of appeal, if that is permitted by the First Tier Tribunal or the Upper Tribunal (as the case may be).
  • The Upper Tribunal observed that JH (Zimbabwe) was followed by the Upper Tribunal in Qureshi (Tier 4 – effect of variation – App C) Pakistan [2011] UKUT 00412 (IAC). The Upper Tribunal made the point that there is no restriction on the number of occasions on which applications for variation of the original application can be made provided notice of variation is given prior to the secretary of State’s decision as thereafter there would be no application pending. The only restriction is that the application to vary the original application must be made before a decision has been made.
  • Applying s.3C(2) of the 1971 Act and S.104(1) and (2), it was considered that the applicant’s appeal was finally determined by the Upper Tribunal on 14 August 2013 because this was the last day on which he could have made an application for permission to appeal to the Court of Appeal. His section 3C leave therefore ended on 14 August 2013.
  • The applicant’s contention was that the mere act of including a copy of the application of 8 August 2013 in the applicant’s bundle in support of his claim for judicial review of a different decision (i.e. the decision of 20 September 2013) was sufficient to fix the Upper Tribunal with notice of an application for permission to appeal to the Court of Appeal against its determination in a statutory appeal which concerned an entirely different decision. The Upper Tribunal stated that the application of 8 August 2013 was an application to the Secretary of State for leave to remain. It was not even termed as an application for permission to appeal to the Court of Appeal. The application of 8 August 2013 did not even concern a decision; yet the applicant suggested that the Upper Tribunal should have regarded it as a challenge to its decision in a statutory appeal which concerned a different decision. There was simply no reasonable basis for these submissions, even leaving aside the procedural and legislative hurdles in the way, which the applicant did not engage with.
  • The submissions ignored rule 44(6) of the Upper Tribunal Rules which provided, in effect, that any application for permission to appeal to the Court of Appeal which is made late must include a request for an extension of time and give the reason why the application was not made in time. The submission also ignored rule 44(7) which provided, in effect, that an application for permission to appeal to the Court of Appeal must identity the decision of the Upper Tribunal to which it relates, the alleged error or errors of law in the decision and state the result that the applicant is seeking. The applicant’s application of 8 August 2013 did not comply with any of these procedural requirements. In particular, it was not explained (and had not been explained by the end of the hearing) precisely how the application of 8 August 2013 arguably disclosed any point of law in the Upper Tribunal’s determination that had already been promulgated and which concerned a different decision made by the Secretary of State.
  • The submission that the secretary of State’s letter dated 20 September 2013 accepted that the applicant could apply to the Upper Tribunal to amend his grounds of appeal in his appeal and that the applicant had an outstanding appeal as at 20 September 2013 failed to appreciate that the issue of whether there was an outstanding appeal before the UT did depend on anything the Secretary of State   said in her letter of 20 September 2013. Further, it failed to appreciate the fact that the Upper Tribunal is independent of the parties, including the Secretary of State.
  • The submissions failed to appreciate the fact that once the Upper Tribunal had dismissed the applicant’s appeal against the decision of 14 January 2013, it was functus officio. It had no jurisdiction to even entertain an application for variation of the grounds of appeal.
  • Applying s.3C(5) of the 1971 Act as interpreted by the Court of Appeal in JH (Zimbabwe), the applicant’s application of 8 August 2013 could not amount to a variation of his application for leave to remain dated 14 November 2012 because the application of 14 November 2012 had already been decided. Applying s.3C(2)(b) of the 1971 Act together with s.104(1) and s.104(2)(a) of the 2002 Act, the applicant’s s.3C leave ended on 14 August 2013 because this was the last date on which he could have made an in-time application for permission to appeal to the Court of Appeal. This meant that the applicant’s application for leave to remain dated 8 August 2013 was made at a time when he had section 3C leave. Accordingly, the secretary of State’s letter dated 20 September 2013 rejecting the applicant’s application of 8 August 2013 as one he was precluded from making under section.3C was not unlawful.

CONCLUSION

A person may   need to timely submit an application to the Home Office in light of imminently expiring leave yet be far off by 5 months to be eligible   for an application for indefinite   leave to remain under the 10year long residence rules.

Relevant Home Office policy Guidance instructs Home Office Caseworkers that where they are  considering an application more than 28 days before the applicant completes the required qualifying period for long residence they  must refuse the application because the applicant has not completed the required period of leave in the UK.  If the  limited leave to remain application is refused before  the applicant  is procedurally able to submit a variation application, having regard  to  the guidance set out above  and as observed in caselaw,  the clear  and welcome advantage in relation to the continuing  effect of Section 3 C leave  to  those  who complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal,   is that they can submit further grounds to be considered at appeal.

 

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