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.
