Katie Dilger

Clients often ask whether they can continue to work while an application is outstanding. The answer is generally yes, provided that they were permitted to work before and made a valid in-time application. This is because leave is automatically extended by law while an in-time application is pending.

Leave is also extended if the application is refused and the person submits an in-time appeal or application for administrative review. The person’s leave only falls away once the appeal rights or the administrative review is no longer pending.

When leave is extended in this way it is called “section 3C leave” after the provision of the Immigration Act 1971 which sets out the mechanism for leave to continue.

Section 3C leave is incredibly important because it keeps people here lawfully. It prevents a person from losing their job or an entitlement to access NHS treatment free of charge.

Earlier this year the Court of Appeal looked at what happens to section 3C leave when a person lodges an appeal out of time. For example, a person normally has 14 days to lodge an appeal against the refusal of an in-country application for leave as the partner of a British citizen. If the person who has section 3C leave lodges the appeal in time, their section 3C leave will continue while the appeal is pending. What the court looked at is what happens if the appeal is late.

The Court of Appeal concluded that section 3C resurrects from the date the appeal papers are lodged, provided that the Tribunal later grants the person extension of time for the lodging the appeal papers. In late October 2021, the Home Office updated its guidance to reflect this. This is available at 3C and 3D leave – GOV.UK (www.gov.uk).

This development may be very useful for individuals and families who have missed an appeal deadline but were previously lawfully present with section 3C leave. Provided the Tribunal grants the extension of time, they will become lawfully present again from the date the appeal papers were lodged. This does not, however, assist those who lodge late appeals and did not have section 3C leave at the date the application was refused.

If you require immigration advice in relation to the above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

On 24 May 2021, the Home Secretary announced further plans for the digitalisation of the immigration system. This intention is that by 2025 the system will be fully digital from beginning to end. The Home Office’s vision is that not only will we continue to use online forms and upload supporting evidence, but all biometrics will be given via apps and individuals will prove their status at the border and to third parties by using a digital record rather than a physical document. As previously announced, the Home Office will also introduce an Electronic Travel Authorisation scheme akin to the United States’ ESTA programme. More detailed information is available in the policy paper published that day, New Plan for Immigration for legal migration and border control.

To date, the use of digital status has not been without controversy. Digital status is being given to EEA nationals who have been granted leave under the EU Settlement Scheme (the EUSS). Under the EUSS, EEA nationals are given a digital record rather than issued with a biometric residence card or any physical evidence of their settled or pre-settled status. Indeed, the grant letter issued to EEA nationals even expressly states that it is not proof of the person’s status. Instead, the Home Office runs a “view and prove” system which requires EEA nationals with status under the EUSS to trigger a share code when they need to prove their status, e.g. to an employer.

The 3Million, an organisation which seeks to protect the rights and interests of EU citizens living in the UK after Brexit, sought to challenge this. It argued that the digital-only policy meant that EEA nationals with status under the EUSS had to be able to access and use the internet effectively if they were to prove their status to third parties. This was likely to disadvantage some groups, including older people, people with certain disabilities and the Roma community.

On 3 May 2021 the challenge was brought to an end by the Administrative Court when it refused permission to bring a judicial review. However, this is unlikely to be the end of the matter. Permission was refused primarily because the claim was regarded as ‘premature’. This is because until the end of June 2021, EEA nationals can still rely on their EEA documents to enter the UK and prove their status. It is only from 1 July 2021 that people will need to rely on the digital system alone.

Automatic extension of leave – some good news

Digitalisation of the Immigration System