The Home Office have updated their guidance to provide clarification as to who is able to be protected by Section 3C, as the authorities have experienced large numbers of applicants who had mistakenly thought they were covered by Section 3C.
Section 3C is in place to protect an applicant who has made an in-time application to extend their grant of leave in the UK or an application Administrative Review or Appeal. Section 3C provides those applying under the Immigration Rules remain on valid leave in the UK, whilst their application is under consideration, which prevents the applicant from becoming an “over stayer”.
The purpose of the recent Home Office guidance was to highlight two circumstances where Section 3C cannot be used. Both restrictions were already in place, but had not been clearly stated in the guidance.
There is often a misconception that Section 3C is available for those applying under the EEA Regulations, which is not the case. Any individual who submits an application submitted under the EEA Regulations, such as EEA Residence Card or Permanent Residence applications cannot be protected by Section 3C. This point has now been clarified in the updated guidance in attempt to prevent the any further misinterpretation from those applying under this category.
The Home Office have also provided clarification as to the fact that Section 3C leave does not apply where the Tribunal allows an out of time appeal. Section 3C leave will be cancelled if the applicant does not lodge an appeal within the allocated time frame, despite the fact that he/she is entitled apply or the fact that the Tribunal accepts the appeal or the application for permission to make an out of time appeal.
This also applies when the Home Office withdraws a decision where Section 3C leave is not in place at the time that the decision was withdrawn. Now the guidance clearly states that Section 3C leave does not arise if it was not in active at the time that the decision was withdrawn. If a decision is withdrawn and the person does already have section 3C leave because of a pending appeal or administrative review, their leave will continue.
The Home Office guidance refers to two clarifications that have been made as opposed to the implementation of updates in regulations. If you have any queries as to whether you are/will be protected by Section 3C after the submission of your application please do contact us.