In the constantly evolving landscape of UK immigration law, it is essential for both employers and migrant workers to understand the intricacies of the Section 3C Leave of the Immigration Act 1971. This provision, which is crucial for those whose permission to stay in the UK is about to expire, guarantees that applicants do not unintentionally exceed their authorised stay while waiting for a judgement on their extension applications.
What is Section 3C of the Immigration Act 1971?
Section 3C is designed to safeguard migrant workers who have made an in-time application to extend their leave to remain in the UK. Its primary function is to prevent these individuals from becoming overstayers, thus maintaining their lawful status during the decision-making period of their application, appeal, or administrative review.
When does section 3C apply?
Section 3C leave can be granted in three main scenarios:
- A decision is pending on an application: If a migrant worker applies to extend or vary their leave before it expires, Section 3C leave will extend their permission to stay until a decision is made or the application is withdrawn.
- Appeal is pending: This leave continues during the period when an appeal could be brought or is pending, ensuring that the individual remains lawfully in the UK until the appeal is decided, withdrawn, or abandoned.
- An administrative review is pending: Similarly, if an administrative review of a refusal decision is sought, Section 3C leave extends the individual’s stay until the review is decided or withdrawn.
What are the conditions and limitations of the Section 3C Leave?
It is essential to understand the conditions under which Section 3C leave can be applied. The leave is only if:
- The application is made while the applicant still has valid leave.
- The application is neither decided nor withdrawn before the current leave expires.
Section 3C does not apply if:
- The application is made after the current leave has expired.
- The application is rejected as invalid. However, the Home Office often provides a 10-working-day window to correct any errors in the application.
Right ot Work under Section 3C
Employers must carefully evaluate the fundamental importance of the right to work as outlined in Section 3C. Individuals with Section 3C leave retain the same employment rights as they did during their previous leave. However, any existing restrictions on the type or amount of work they can do remain in force. Ensuring this continuity is vital for maintaining a stable workforce and complying with the right to work regulations.
What are the challenges in proving the lawful status?
One of the significant challenges for individuals with Section 3C leave is proving their lawful status. The reliance on the Employer Checking Service, which is prone to is prone to errors, hinders and complicates the process of the verification process for employers and service providers. The Home Office requires a more optimised and effective code generation system for sharing purposes. The case of R (Refugee and Migrant Forum of Essex and London (RAMFEL) & Anor) v Secretary of State for the Home Department shed some light on the hardships faced by individuals due to the absence of immediate documentary proof of status. The court ruled that the Home Office’s failure to provide digital proof of status was unlawful and mandated the provision of such proof. Following this ruling, the Home Office is now required to update its policies to include individuals on Section 3C leave in the transition to digital status systems like the eVisas. This move aims to alleviate the difficulties faced by migrants in proving their lawful status and accessing essential services.
Cancellation of Section 3C Leave
Section 3C leave can only be cancelled under specific conditions:
- If the applicant has failed to comply with the conditions of their leave.
- If the applicant has used deception in their immigration application.
However, the burden of proof lies with the Home Office, and even then, the power to cancel is discretionary, requiring a balanced consideration of all circumstances. As the UK moves towards a more digital immigration system, the recent legal precedents will hopefully streamline processes and reduce the bureaucratic burdens on both migrants and employers.
Get in touch: For a comprehensive understanding of your options or queries on UK immigration matters, contact GigaLegal Solicitors at 02074067654 or click here to book a no-obligation consultation with an immigration expert.