To the uninitiated, immigration law can be deeply complex, due to its many rules, paragraphs, sub-sections, and constant updates. A judge described it as a ’labyrinth’. It is little wonder then that few would understand the meaning of section 3C and section 3D leave.
Section 3C of the Immigration Act 1971 allows a person who has submitted an in-time application to extend their stay in the UK. They will not become an overstayer while their application remains outstanding and the conditions which applied during their previous grant of leave continue. Section 3c of the Immigration Act 1971 is the “continuation of leave pending variation decision” and is often referred to as 3c leave.
In the current version (8.0) of the SSHD’s policy, titled “Leave extended by section 3C (and leave extended by section 3D in transitional cases)”, published on 6 March 2017, the Secretary of State for the Home Department mentions on four occasions that “section 3C leave can exist only where it is a seamless continuation of leave, either extant leave or section 3C leave.”
This is mentioned in the context of out of time appeals or applications for administrative review when the Tribunal or the Secretary of State, respectively, accept the application for permission to appeal or for administrative review notwithstanding it was made out of time. It is also mentioned in the context of a decision by the Secretary of State on an application extending leave under s.3C, when that decision is subsequently withdrawn after s.3C leave has come to an end. In all circumstances, the Secretary of State’s interpretation of the meaning of the statutory provision is that “when section 3C leave has come to an end, it cannot be resurrected.”
Most people will be familiar with the fact that when a person’s visa expires whilst they have an outstanding application or appeal, they have what is referred to as “3C leave”.
Essentially, 3c leave is a protection for Applicants who have immigration applications and appeals pending with the Home Office to prevent them from becoming overstayers and have no valid leave. For example, if an Applicant applies to extend their visa and the Home Office takes 15 weeks to decide and the previous visa has therefore expired, that Applicant will be protected by 3c leave and their rights will continue (i.e., working, renting and living in the UK). 3c leave is automatic and will end once a decision has been made on an application or appeal rights have become exhausted. All immigration applications and appeals must be submitted in-time, in order for 3c leave to apply.
Without the operation of 3c leave, a person becomes an overstayer. However, things are a bit more complicated than that. A proper reading of the full text of the provision reveals a more complex framework:
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)
(ca) an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending.
The SSHD’s own guidance or this section does not assist in other common scenarios that we deal with, as practitioners.
For example, what happens when someone receives a decision refusing their visa application, they fail to appeal against this in time, but the immigration tribunal allows the appeal to be accepted late.
It has always been the SSHD’s position that 3c cannot be resurrected.
However, almost as if taking a leaf from the series ‘The walking dead’, the Court of Appeal in Akinola & Anor v Upper Tribunal & Anor  EWCA Civ 1308 decided that 3c leave can be revived from the dead.
This is an interesting decision by the Court of appeal which has significant implication for those making an application for leave to remain in the UK under the 10 years long residence rules.
The issue the Court of Appeal had to grapple with related in particular to the position under section 3C where an application has been made for variation of existing leave, the application has been refused by a decision of the Secretary of State, and subsequently (i) there is an out-of-time appeal for which an extension of time is granted, or (ii) the Secretary of State withdraws and/or reconsiders the decision.
Previously, the SSHD’s position was that once it came to an end, that was that. This meant that 3C leave could not be revived by a late appeal being lodged.
The issues arise in the context of applications under paragraph 276B of the Immigration Rules for indefinite leave to remain on the ground of long residence. In each case, the question of whether leave was extended by the operation of section 3C is relevant to whether the applicant had accumulated the required ’10 years continuous lawful residence in the United Kingdom’.”
The HO argued that 3C leave ‘resuscitated’ from the date the Tribunal allowed the appeal to be accepted as lodged as late [ this has happened with some of my clients]
However, the problem with this is that it leaves a gap [ break in continuity of leave] in an otherwise lawful status of the applicant.
The appellants’ lawyers argued that 3c leave [ upon proper interpretation of the text] meant that it had retroactive effect.
This was not accepted by the Court although Sir Stephen Richards described this as a powerful argument.
Ultimately, the Court found in favour of the appellants:
…where an extension of time is granted, it seems to me that it will be granted up to the date when the notice of appeal was filed; and in considering whether to grant such an extension, the tribunal will focus on the reasons for delay up to that date. Any further lapse of time between the date when the notice of appeal was filed and the date when the application for an extension of time is decided will depend upon the tribunal’s own workload, resources and priorities and will generally be irrelevant to the decision. In the circumstances I take the view that when an extension of time is granted, it renders the notice of appeal effective from the date when it was filed, so that the appeal proceedings are instituted at that date rather than at the date when the decision to extend time is made or written notice of it is provided to the parties. Paragraph 61
This is a noteworthy decision as it means that anyone who has lodged a late immigration appeal can still benefit from the protection of 3c leave.
If you have any concerns regarding section 3C or 3D leave, it is always advisable to speak to us.
If, for example, you have been accused of deception due to minor differences between your HMRC tax records and the income stated on a visa extension application, you may have your section 3C leave cancelled, and hence be treated as an overstayer if your current leave has expired. If you have need advice or have a 3 c leave issue or you are unsure whether you have 3 c leave, I can assist you as a public access barrister.
I will be able to rapidly assess your case and recommend the best course of action to secure your immigration status, and then handle the matter for you.
Over the years, immigration and net migration has arisen. Therefore, the need for an immigration lawyer has also increased in recent years.
However, not everyone will need an immigration lawyer. Whether one requires an immigration lawyer will depend on the individual’s circumstances. Despite this, a friend or relative should not be a replacement if one is seeking assistance, unless they are a qualified immigration lawyer. If you do not understand something or do not know if your case is easy to pursue, it is best to seek advice from an immigration lawyer to get information and guidance.
Some immigration applications are more complex than others. For example, the Tier 1 Entrepreneur visa scheme is very complicated indeed. It must be done right otherwise there is a risk that the application may be rejected. If your extension or settlement is refused then there is also the risk of you becoming an overstayer, thus obtaining a bad immigration history which could likely affect future immigration applications you make.
Therefore, in most cases, it is always best to look for an immigration lawyer to resolve your immigration matter. Not only will it save you time and money but will also avoid you having to respond to a request for further evidence, or worse, receiving a rejection of your application. Immigration lawyers are experts in this field. Within a few minutes of consultation, they would be able to know exactly the type of visas and/or reliefs available and can help you through the process swiftly.
How to find an immigration lawyer that’s right for you?
Finding the right immigration lawyer can always be a challenge. However, there are some steps you can take to ensure you pick the right lawyer for you:
Choosing whether to go for free or paid legal advice is a fundamental question for most people. However, legal advice is generally not free unless you get legal aid. A good consultation with a lawyer will enable you to explain your immigration history; get advice and reasonable prospect success; costs; and next steps.
Your lawyer should be transparent to you about the legal costs. Your lawyer should provide you with a client care letter upon instructing them. The client care letter should cover the legal costs; type of work, services provided, terms and conditions and the complaints process.
You must find out who regulates your lawyer. All immigration advisers are registered either with the OISC or an approved professional body such as, The General Council of the Bar or the Solicitors Regulation Authority. If your lawyer is not regulated then he or she is not entitled to give you immigration advice.
It is not always beneficial to find a lawyer of your own race or culture. Many individuals will often look for a lawyer that can speak their language to make communication easier. However, that is not always the right approach. You should consider other factors, for example, the lawyer’s experience and reputation in the area of expertise you wish to instruct them in.
We are a group of dedicated direct access immigration barristers / lawyers passionately committed to delivering the highest standards of service to our clients. We also recognise that the legal profession has got progressively more difficult and more expensive to break into. There have been numerous discussions on Twitter and other social media sites about the continued cuts to legal aid.
Imperium Chambers (“IC”) therefore has not just the goal of striving to do the best we can for our clients but also to whatever we can in respect of assisting individuals. IC has not been set up to be a mere facsimile of convention sets, hence our focus on direct access clients and also the additional support staff. We have grown steadily since we were first set up and our proud to be able to offer immigration law jobs to many talented individuals. Since our inception with two practising barristers and three support staff, we now count seven barristers and seven support staff. We hope that this means that we cover a wide range of practice areas and can ensure that all clients get the attention they deserve.
IC has recruited several new tenants and support staff recently, and has recently recruited two pupils to start in June 2022. This is really exciting as IC is in a position to be able to offer differing levels of membership with different charges. One aim is to provide the resources, space and support for barristers who have their own practice but require minimal administrative assistance. We see no reason why barristers cannot and should not simply just bill their own work having completed it and are in the process of implementing such a system. The benefit of this will be clear. Those members of the bar who have good relationships with their solicitors / private clients will simply be supported in being able to do the work and bill it themselves without the need for expensive overheads. This is obviously not going to suit everyone but our research speaks of a significant number who would be. It is also a model for the individual who wishes to practice perhaps part time and is easing themselves back into or indeed out of practice.
We are also looking to providing a higher level of service for those who have an established direct access practice but who are struggling to keep up with their success. One of the reasons for creating IC was to provide the space to really grow public access work and to support other barristers in doing the same. Anyone with some public access experience will know that the time spent at the photocopier for example is not the most cost effective / productive use of time, yet conventional chambers are not geared up to help. That is why we have a large support team who are able to assist our barristers in being as efficient as possible.
For the past few years, IC has recruited pupil barristers having become registered as a a pupil training organisation (“PTO”). We have successfully trained five barristers, all of whom are now tenants, and look forward to continuing to expand in this way. We at IC believe that there is a moral responsibility to take the time and commit the finances in order to build / assist in the next generation of the bar and that anyone who joins IC will share this belief. It is only by existing members of the bar supporting those coming through that the bar will survive.
We also regularly take on work experience students and mini pupils. We know that immigration law jobs are hard to come by and we are committed to providing experience to those seeking to work in immigration law firm jobs / immigration chambers jobs. We have a strong track record in providing full-time employment for those who have undertaken work experience and mini pupillages with us. Our work experience/mini pupillages are a fairly unique internship as the successful candidate will spend their time split shadowing Counsel in Court and being in chambers itself. If this interests you please feel free to get in touch.
In addition to seeking to recruit pupils in the conventional manner, IC will be has several paralegals who assist with existing work and the continued expansion of chambers. Please keep an eye out on our website for job roles.
We have thought it helpful to set out in the above post what our plans our, obviously as we are aware plans can be subject to change.
Immigration Immigration Law Jobs Immigration Law Firm Jobs Immigration Chambers Jobs
The truth about immigrants; we need immigration to keep our economy going. Fear of immigrants and immigration is misguided.
It has been well-known for years that a fear of immigration is only serving to hold the UK economy back. Recruiters and the authors of the FTSE 250 have explained that the UK has a massive gap between the skills that companies need and their ability to be able to find them in the open labour market.
The immigration visa system used in the UK has seems to get stricter by the day, but the government claims that it is still possible for companies to be able to recruit professional and skilled employees from other countries to work in the UK. There are several visa categories that may be used for this, but most require that the individual has a firm job offer when entering the country.
There are many that argue that the size of the UK labour market, being small when compared to most other countries, means that businesses simply struggle to find the most highly skilled members for their team. With a tightening of immigration law, this means that businesses are being forced to adopt other methods, or simply make do.
Politicians, especially those within the ruling Conservative Party, have come to fear speaking in support of relaxing immigration rules for fear of political ramifications. However, the upshot is that UK economy is not performing as well, or as strongly, as it could. We’ve seen evidence of this for years, but still the current government seems hell-bent on making it as difficult as possible for foreign nationals to enter the UK and contribute to our economy.
The UK has a talent mismatch, but makes it incredibly difficult for people to join our workforce. Other countries who are better at welcoming foreign nationals are seeing the benefits of having a multicultural society and a diverse workforce. It seems that a fear of immigration, or perhaps a fear of immigrants, that has been perpetuated by our government has caused our economy to stall. Especially as we look to recover from lockdown, it is vital that the truth about immigrants is shared a widely and loudly as possible. Immigration is good for our economy, and we need immigrants to boost our economy.
Labour’s Shadow Home Secretary Yvette Cooper has said that her party would scrap the heavily criticised net migration scheme that current Home Secretary Theresa May and Prime Minister David Cameron introduced in 2010. She said that the actual net migration figure is effectively the same now as it was four years ago, and said that a single net figure would not work.
A Labour government would replace a net figure with separate targets, and she singled out students as being one group that should be removed. Cooper also said that it was important that migrant workers and those seeking asylum were treated separately, because the latter group were looking for protection. The Shadow Home Secretary said that any scheme should take into account the complexities of immigration and emigration; have strict controls; and should not treat every group of immigrants and asylum seekers as being the same.
In 2010, the Prime Minister David Cameron and his Home Secretary Theresa May introduced the new net migration measurement, and said that they would reduce the figures to tens of thousands of rather than hundreds of thousands. However, Ms Cooper said that the figure remains largely the same even after four years; the figure is just short of a quarter of a million. The Conservatives themselves have said that it will be difficult to meet that target by next May’s general election.
Ms Cooper said that the biggest problem with the system is that it does not differentiate between different groups so that immigrant students, families, and even asylum seekers are all included within the same net immigration figure. She went on to say that because of the complexities of immigration, the many different groups that exist, and the specific nature and requirements of each group, that this did not work and that individual and complex targets would prove a more effective measure.
With the party conference season well under way, and all political parties concentrating on immigration as one of their main points of focus, there are almost certain to be a number of related announcements in the coming weeks
What is Net Migration?
The net migration definition is the difference between the number of immigrants and the number of emigrants throughout the year. This includes citizens and noncitizens, for the five-year period. When the number of immigrants is larger than the number of emigrants, a positive net migration rate occurs. When more emigrate from a country, the result is a negative net migration rate, meaning that more people are leaving than entering the area.
Net migration definition
Figures released by the Chartered Institute of Personnel and Development have indicated that those companies that employ immigrant workers are more likely to have shown growth over the past two years, mirroring the sentiment of Hays executive Alistair Cox whose organisation released figures showing a massive disparity between UK company skill requirements and the skills available in the current labour market. Cox himself said that a fear of immigration is leading to poor performance and slower growth being experienced by the UK economy, and that a more open discussion and more reasonable immigration would lead to greater growth and an improved economy.
Immigration is a politically hot topic. The major parties were surprised by the strong support that was shown for anti-EU and anti-immigration party UKIP, especially during European elections, and this has inevitably led to all of the three major parties putting immigration at the very fore of their manifestos. The Conservatives have promised to strengthen immigration, although the latest figures show that their own net immigration scheme has failed to reduce the numbers in four years. Labour have said that they would scrap this scheme, and the Liberal Democrats have rounded on plans to leave the EU.
The CIPD, which is a group made up primarily of HR professionals, managers, and experts questioned more than 1,000 of its members and asked whether they employed EU migrant workers and whether their business had enjoyed growth over the past two years. 51% of those companies that employed migrant workers said that they had experienced growth while only 39% of the companies that did not employ any EU workers said that they had witnessed growth for their company in the past two years.
Peter Cheese, the CIPD chief executive, has said that it is a highly contentious and charged issue, but that their figures show that the negative assumptions that are typically associated with migrant workers and immigration in general, are simply not true. He also said that there is very little evidence to suggest that the only reason companies are employing overseas workers is because they are cheaper, but suggested that the most likely reasons are that they are more experienced, and that there is simply a lack of experience within the UK labour market.