Following the abandonment of the postal application system from November 2018, with a move to the on-line immigration application process, it is all too often common for applicants to:
- make on-line payment of the required fees
- submit an on-line application form
- upload the required documentation
- attend a biometrics enrolment appointment
- receive a decision
and never receive an individualised acknowledgement letter or correspondence from the Home Office properly confirming or clarifying the effect of their pending application on their immigration status.
For whatever reasons, some Employers are either reluctant or too slow to utilise the Employer Checking Service. Some are still unaware that Home Office postal applications have become redundant.
Whilst an in-time application is pending to be decided, applicants are on occasion bombarded by Employers with requests such as these:
“Please be advised that our records show your visa is due to expire on 01/012/2020. Please present a member of the HR team with the documents detailed below to ensure you remain eligible to work in the UK, before your current visa expiry date
1.Your original passport and renewed visa;
2.Or, if you have yet to receive your renewed visa please provide the original letter from the UK Border Agency confirming receipt of your application, and when your submitted your application;
3.Or, if you have applied for your visa and are awaiting confirmation of this application, please provide a full copy of your application and proof of postage of this document. In addition you must provide the confirmation of receipt letter detailed above once received as this does allow you to continue to work in the UK until a decision on your application has been made”.
A situation where a leave extension application is pending for up to 4 to 6months, combined with unveiled threats of cessation of employment from an employer, can result in considerable unnecessary difficulty and anxiety for affected applicants.
WHAT IS SECTION 3C LEAVE?
3C and 3D leave Guidance states:
“Purpose of leave extended by section 3C Immigration Act 1971
The 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.
When section 3C applies
This section explains when a person’s leave is extended by section 3C of the Immigration Act 1971.
Pending decision on application
A person will have section 3C leave if:
- they have limited leave to enter or remain in the UK
- they apply to the Secretary of State for variation of that leave
- the application for variation is made before the leave expires
- the leave expires without the application for variation having been decided
- the application for variation is neither decided nor withdrawn
Pending appeal Section
3C leave continues during any period when:
- an in-country appeal could be brought (ignoring any possibility of appeal out of time with permission)
- the appeal is pending (within the meaning of section 104 of the Nationality, Asylum and Immigration Act 2002), meaning it has been lodged and has not been finally determined
Pending Administrative Review Section 3C leave continues during any period when:
- an administrative review could be sought
- the administrative review is pending, in that it has not be determined
- no new application for leave to remain has been made
Section 3C leave will end if the person leaves the UK.
Section 3C leave extended when an in-time application is made
An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain.
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).
Section 3C does not extend leave where the application is made after the applicant’s current leave has expired”.
ABLITY TO WORK WHILST SECTION 3C LEAVE APPLIES
Guidance 3C and 3D leave, further provides:
“Conditions of immigration leave where 3C applies
This section tells you about the conditions that apply to section 3C leave.
A person who has section 3C leave remains subject to the conditions attached to their extant leave unless the conditions of their leave are varied by the Secretary of State. For example, a person subject to a condition allowing employment may continue to work as before. Any restrictions on the type of employment allowed or the number of hours they can work will still apply.
The conditions attached to a person’s leave can be varied while they are on section 3C leave, in the same way that someone who has been granted leave can have their conditions varied. So for example the conditions of a person’s leave may be varied to impose a residence requirement or to put them on to reporting conditions”.
The benefit of having Section 3C leave is to enable, amongst other things, an applicant who has timely submitted their application to continue in employment whilst awaiting a decision from the Home Office, where the conditions of their leave permit this.
It is important however to note that an invalid application does not extend leave under section 3C.
What is an invalid application? Guidance : Applications for leave to remain: validation, variation and withdrawal
An application for leave to remain in the UK is valid when the requirements of paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant.
For an application to be valid for example, the application must be made on a specified application form. There is a specified form for all types of application for leave to remain. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form – some applicants however can apply for a fee waiver or qualify for a fee exemption. Applicants are required to provide proof of identity, such as a current passport unless they meet the exceptions to the requirement to provide proof of identity.
Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. It applies to all charged in -country applications for leave to remain. Where the fee has been paid but the application is invalid because of other reasons, the Home Office will reject the application and process a refund for the application minus £25 per person included in the application form.
Section 3C leave does not apply where the application to extend or vary leave is rejected as invalid. It is important therefore, where an application is submitted that regard be had to the automatically generated Document Checklist in conjunction with the requirements of Paragraph 34 of the Rules. This is to ensure all mandatory documentation is uploaded/submitted to avoid invalidation and rejection of an application as unconsidered later on during the application process.
A person who timely submits an extension application is therefore likely upon invalidation and rejection of that application to become an overstayer. They can of course re-submit the application with the required documentation and applicable fees however will not enjoy the benefits of Section 3C leave, such as being able to work whilst their re-submitted application is pending to be decided.
VALIDATION EMAILS FROM THE HOME OFFICE?
Whilst not going as far as specifically confirming a continuing right to work in relation to pending individual extension applications, the Home Office have been sending out random emails in relation to confirmation of Section 3C leave for timely submitted applications, be it FLR(FP) or FLR(M) applications:
PLEASE QUOTE REF: 1212-0001-0000-000/00 IN ANY CORRESPONDENCE.
This is a notification email. We cannot reply to queries from this mailbox. For any further information please access our website through https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents
Due to the volume of correspondence we may be unable to locate your application without this reference and your correspondence may be returned to you.
Thank you for your application for permission to stay in the UK.
We apologise for the inconvenience, but, due to the worldwide response to COVID-19, UKVI services are limited and we are not able to meet our usual service standards.
Although we would normally decide your application within eight weeks from the date it was submitted, unfortunately this may not be possible in your case.
In line with Government advice on essential travel, social distancing and other restrictions related to COVID-19, for the safety of our customers and our staff, the UK Visa and Citizenship Application Service (UKVCAS) locations where you would ordinarily submit your biometric details and provide any documents for scanning that you have not already uploaded yourself have been closed.
Some centres are now opening with limited capacity so you may now be able to get an appointment it is important you attend if an appointment is offered.
Alternatively, you may have already attended an appointment and submitted your biometric details. If this is the case, no further action is required.
If your application was submitted prior to your current grant of leave expiring, your current status within the United Kingdom has been extended by section 3C of the Immigration Act 1971. You do not need to do anything else at this stage and do not need to be concerned about your immigration status.
If you have applied to switch your status in respect of your employment or studies then please refer to the guidance on Gov.UK as you should be permitted to commence work/study prior to your application being decided, should you meet the conditions set out in the guidance.
We apologise for the delay in dealing with your application and for the inconvenience this is causing. Please be assured we will do all we can to make a decision on your case as quickly as possible once your biometric details have been submitted.
We appreciate your patience at this time.
As well as writing to UKVI Sheffield by post, an applicant seeking to elicit confirmation of continuing Section 3C leave whilst their application is pending may email the Home Office on FLRMvalidate@homeoffice.gov.uk and consider copying firstname.lastname@example.org and FHR14@homeoffice.gov.uk, also requesting a Case ID for the current pending application, especially where an applicant has not yet been allocated a Home Office reference number.