This is the third post in a series of blogs regarding recent developments in case law on overstaying and applying for settlement, also known as indefinite leave to remain (‘ILR’), on the basis of 10 years long residence. The first and second post, provided an in-depth exploration of the recent cases on the interpretation of 10 years of continuous lawful residence.

This blog post will explain the provisions of section 3C of the Immigration Act 1971 and paragraph 39E of the Immigration Rules, which together determine when your leave has been extended during pending appeals or applications, and in what circumstances such overstaying will be overlooked in subsequent applications.

In our subsequent blog posts, we will provide an update summarising case law and guidance relating to long residence.

What is Section 3C?

Although the Home Office and many practitioners refer to “Section 3C leave”, there is no such thing. You will never receive a letter granting you “Section 3C leave”. Rather, this is a short version of saying that a person’s leave has been extended by virtue of section 3C of the Immigration Act 1971.

Section 3C will act to extend your leave pending a variation decision. I’ll break this down a bit.

Making an In-time Application: Section 3C will apply if you currently have limited leave to enter or remain in the UK, and you make an application to the Secretary of State to vary that leave which is not decided until after your leave expires. A variation application includes, for example, making an extension application, switching to a different immigration route, or making a human rights application outside of the Immigration Rules. However, you must apply before your current leave expires, and a decision on your application must not be made until after your current leave expires. Therefore, your leave will expire without the variation application having been decided.

For example, you have Tier 1 (Entrepreneur) leave valid to 1 January 2020, and you make a Tier 1 (Entrepreneur) application on or before 1 January 2020 to extend that leave. If you make an application on 10 December 2019 and a decision is made on 20 December 2019, and if no further application is made before 1 January 2020, you might find yourself caught in the Section 3C trap. However, If you make an application on 31 December 2019, and a decision is not made until 1 March 2020, your leave will have been extended by virtue of section 3C from 2 January 2020 to 1 March 2020, whilst that application was pending.

Your leave will continue to be extended whilst the pending application has not been decided or withdrawn.

In-country Appeal: Once it is decided, your leave will also be extended while you can bring an appeal (whilst you are in the UK) under section 82(1) of the Nationality, Asylum and Immigration Act 2002, against that decision. So for those 14 days after the decision is sent to you, if the refusal is against a protection or human rights claim, your leave will be extended by section 3C.

Your leave will also be extended while an appeal against the decision is pending: this starts when it is instituted and ends when it is finally determined, withdrawn, abandoned, or lapses.

For example, if you have Tier 1 (General) leave and before your leave expires you make a human rights application outside of the Rules for you and your family members, the decisions are not certified as clearly unfounded, and you are given an in-country right of appeal, your Tier 1 (General) leave will extend by virtue of section 3C while that appeal is pending.

Administrative Review: Section 3C will also act to extend your leave when an administrative review of the decision could be sought or is pending.

Taking our Tier 1 (Entrepreneur) example above, assume that on 1 March 2020 the application was refused. For the 14 days after you receive the decision you could seek an administrative review, and your leave will be extended by section 3C. If you make an in-time administrative review application, whilst the review is pending your leave would be extended until the administrative review was decided. If successful in the administrative review, great, that should lead to a further grant of leave. If unsuccessful, you may then seek to judicially review that decision.

It is worth noting at this juncture that making a judicial review claim will not trigger section 3C and extend your leave. Therefore, whilst you might have pursued an appropriate form of legal challenge against the decision, your leave may not necessarily be extended. We have another very helpful blog here, on section 3C and whether it has come to an end during a judicial review.

Section 3C will also not act to extend your leave if your appeal rights become exhausted, or your administrative review is unsuccessful but you make an application within 14 days, although paragraph 39E below might apply.

There are circumstances where leave extended by virtue of section 3C can lapse, such as if an applicant leaves the UK. It is not possible to make an application to vary your leave, whilst you have a pending appeal or administrative review (where your leave was extended by that section). If you withdraw your appeal or review to make a further application, your leave extended by section 3C will come to an end.

Applying section 3C to your personal circumstances can require a close analysis of your immigration history. If you have a complex immigration history, it is worth seeking advice on whether your leave was extended by virtue of section 3C, as that may determine whether your period of time spent in the UK was lawful or whether you were an overstayer. Being an overstayer can have serious consequences on accruing lawful residence and can also make you subject to the hostile environment.

What is Paragraph 39E?

Paragraph 39E is an exception for overstayers, who want to make an application within the Rules. Many categories in the Immigration Rules require that you not currently be in breach of immigration laws, unless paragraph 39E applies.

It currently applies in two broad scenarios.

First, if the application was made within 14 days of your leave expiring and the Secretary of State considers that there was a good reason beyond your or your representative’s control, provided in or with the application, why the application could not be made in-time.

Second, if the application was made following the refusal of a previous in-time application, and within 14 days of:

• the refusal of the previous application, OR
• expiry of any leave extended by section 3C of the Immigration Act 1971, OR
• expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable), OR
• any administrative review or appeal being concluded, withdrawn, abandoned or lapsing.

Simply because paragraph 39E applies in your circumstances, that does not mean you are not an overstayer or that your status is regularised. You are still an overstayer – in fact, it is precisely an exception for overstayers. That paragraph 39E applies only means the fact you are currently an overstayer will be overlooked when considering certain requirements of the Rules.

Paragraph 39E is helpful, as it may be worth considering after your section 3C leave comes to an end whether you wish to make a fresh application relying on this provision (such as if you have already accrued 10 years continuous lawful residence), or whether you should seek a judicial review against the decision.

You may recall that the limit used to be 28 (rather than 14) days for making a further application. Prior to 24 November 2016, the Rules incorporated a requirement under most routes that you should not be in the UK in breach of immigration laws, with the exception that any period of overstaying for a period of 28 days or less would be disregarded.

Contact our Immigration Lawyers

For expert advice and assistance regarding an application for indefinite leave to remain on grounds of long residence, or advice on overstaying and 10 years long residence ILR, contact our immigration barristers & immigration lawyers in London on 0203 617 9173.