For many non-British nationals residing in the UK with a valid visa, leave under Section 3C of the Immigration Act 1971 provides an important safeguard. Section 3C automatically extends a person's visa while a decision on their application to extend their leave, appeal, or administrative review of any refusal decision is pending. This prevents such a person from becoming an overstayer in the UK. Even though this sounds like a straightforward protection, in reality, there can be a legal grey area, especially with the UK's shift to a digital status and evolving Home Office policies.

Immigrants whose leave to enter or remain in the UK is soon due to expire must apply to extend their permission to stay so that 'section 3C leave' rules work in their favour.

What is Section 3C Leave to Remain?

Section 3C leave applies where a person makes an in-time application to extend or vary leave. An in-time application is one made by a person in the UK who, at the time of their application, has leave to enter or remain, therefore they must have submitted an application before expiry of their current leave. Section 3C extends the person’s existing leave in the UK until their application is decided (or withdrawn) and while any appeal or administrative review they are entitled to the same rights as on their leave, whilst the application is pending. 

Section 3C does not extend a person’s leave in the UK if they make an application to extend or vary leave after their current leave has expired.

The purpose of section 3C is also to prevent a migrant worker from becoming an overstayer. The provisions of Section 3C leave to remain are designed to prevent people from being in the UK unlawfully while awaiting or appealing a Home Office decision.

Who benefits from Section 3C leave?

Any person who successfully submits a valid application to switch or extend their visa before their current permission expires is automatically covered under Section 3C leave until a decision on their application is made, including any appeal or administrative review period. 

Importantly, if someone’s previous visa allowed them to work or study in the UK, those conditions continue while their Section 3C leave is active. However, they cannot, unless their visa is granted, take on new work or change their conditions.

When does Section 3C apply?

Section 3C leave to remain applies when a person has a pending decision on an application, pending appeal, or a pending administrative review.

(1) Pending Decision on an Application -

Section 3C leave to remain will apply to a person if: 

• They have limited leave to enter or limited leave to remain in the UK 

• They apply to the Secretary of State for the variation of that leave 

• They make the application for variation before the current leave expires 

• Their current leave expires before the application for variation has been decided 

• Their application for variation is neither decided nor withdrawn

(2) 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, meaning it has been lodged but has not been finally determined

(3) Pending Administrative Review -

Section 3C leave also continues during any period when: 

• An administrative review could be sought 

• The review is pending, meaning it has been lodged but has not been finally determined 

• The person has made no new application for leave to remain 

Please note that Section 3C leave to remain will end if the person leaves the UK.

How long does leave under Section 3C of the Immigration Act 1971 last?

Per Section 3C (2) of the Immigration Act 1971, once triggered, 3C leave will last for as long as one of the following conditions applies: 

• The person is yet to receive a decision on their application for leave to enter or remain, and it has not been withdrawn, or 

• No decision has been made on their application, but they are still within the time limit for lodging an appeal or 

• Requesting an administrative review.

Section 3C leave to remain will also extend to the time until a person’s application for appeal or administrative review is finally decided, or until such appeal or review is either withdrawn or abandoned. In simple terms, Section 3C leave will only come to an end when an application has been decided, and the applicant has fully exhausted their rights to appeal or review. 

However, section 3C leave shall lapse once a person leaves the UK.

Conditions of Immigration Leave where 3C applies 

A person with section 3C leave continues to remain subject to the conditions associated with their extant leave unless the Secretary of State decides to vary the conditions of their leave. For example, a person who is subject to a condition that allows them employment in the UK may continue to work as before. Any restrictions on the type of employment permitted or how many hours they can work will still apply.

When a person is on section 3C leave, they can have conditions attached to their leave varied, in the same way that someone who has been granted leave can get their conditions varied. 

So, for example, the conditions attached to a person’s leave may be varied, imposing a residence requirement or putting them on reporting conditions.

Cancelling Section 3C Leave

A person’s Section 3C leave may be cancelled where they have either: 

• Failed to comply with one or more conditions attached to their leave 

• Used or uses, whether successfully or not, deception in seeking leave to remain

Section 3C leave can be cancelled for no other reason. The other general powers to curtail a person’s leave set out in the cancellation of entry clearance and permission do not apply to section 3C leave. The power to cancel the section 3C leave of someone is discretionary. 

Under this provision, cancellation of section 3C leave operates to bring the leave to an end with immediate effect. This provision cannot therefore be used to vary a person’s leave to, for example, 60 days.

Dependants 

Where the main applicant’s section 3C leave is cancelled, the Home Office can make a removal decision in respect of their dependants under the Immigration and Asylum Act 1999. The removal decision will invalidate any extant leave.

What happens if an application is refused?

If the Home Office refuses a person’s visa application, Section 3C leave continues only if the person makes an in-time appeal or administrative review. Their leave ends, if no appeal is made, and they must leave the UK or risk overstaying. Also, someone’s section 3C leave ends immediately if they leave the UK and if they travel outside the UK while their application is still pending their application is considered withdrawn. 

For expert guidance on Section 3C leave, call us at +44 (0)20 3411 1261. 

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