3c 3d Leave v5 0 Ext

of 32 3C and 3D leave – version 5.0 Valid from 4 February 2015

3C and 3D leave This guidance is about leave extended under section 3C or 3D of the Immigration Act 1971


3C and 3D leave About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This guidance is about leave extended under sections 3C and 3D of the Immigration Act 1971 (referred to in this guidance as ‘section 3C or 3D leave’). The purpose of section 3C and 3D leave is to prevent an individual from becoming an overstayer while they are awaiting or appealing a decision. A person becomes an overstayer if they remain in the UK beyond the period of their leave. This is a criminal offence under section 24 of the Immigration Act 1971. 3C leave Section 118 of the Nationality, Immigration and Asylum Act 2002 added section 3C to the Immigration Act 1971 to prevent an applicant from becoming an overstayer by extending their leave while they are:

• awaiting a decision on an in-time application, or • exercising a right of appeal against the refusal of such an application.

3D leave Section 11 of the Immigration, Asylum and Nationality Act 2006 added section 3D to the Immigration Act 1971 to prevent a migrant from becoming an overstayer while they are exercising a right of appeal against a decision to curtail or to revoke leave to enter or remain (where that decision leaves them with no leave). When leave to enter or remain is curtailed or revoked, section 3D extends it while an appeal against that decision can be brought or is pending. For more information on overstayers and curtailment of leave, see related links:

• Applications from overstayers (non family routes) • Curtailment of leave.

Changes to this guidance – This page tells you what has changed since the previous

In this section Changes to this guidance Contact Information owner Related links Links to staff intranet removed External links Section 118 of the Nationality, Immigration and Asylum Act 2002 Section 11 of the Nationality, Immigration and Asylum Act 2006

http://www.legislation.gov.uk/ukpga/2002/41/section/118







version of this guidance. Contact – This page tells you who to contact for help if your senior caseworker or line manager can’t answer your question. Information owner – This page tells you about this version of the guidance and who owns it. Safeguard and promote child welfare – This page explains your duty to safeguard and promote the welfare of children and tells you where to find more information.


3C and 3D leave

Changes to this guidance About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page lists changes to the ‘3C and 3D leave’ guidance, with the most recent at the top.

Date of the change Details of the change 4 February 2015 Change request:

• 3C and 3D leave while an appeal can be

made: o new content added following the

September 2014 changes to appeals policy

• Appeal time limits to determine when 3C leave ends: o new content added following the


• Applications to vary leave following a tribunal decision: o new content added following the


24 October 2014 Change request:

• When 3C and 3D leave applies: o new paragraph added.

• 3C and 3D leave while an appeal is pending: o Added wording to existing sentence.

• Applicant’s status after submitting a

Related links 3C and 3D leave while an appeal can be made Appeal time limits to determine when 3C leave ends Applications to vary leave following a tribunal decision In this section Contact Information owner


request for administrative review – new page.

13 March 2014 Completely revised by the modernised guidance team.


3C and 3D leave

When 3C and 3D leave applies About this guidance 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page explains when a migrant’s leave is extended by section 3C or 3D of the Immigration Act 1971. Section 3C leave Section 3C applies if:

• the applicant applies for an extension of stay before their leave expires (an ‘in-time application’), and

• the applicant’s leave expires before the application is decided or withdrawn. Section 3C extends the leave and any conditions attached to it:

• until the application is decided or withdrawn (s3C(2)(a)) • for the period the applicant can make an in-time, in-country appeal (s3C(2)(b)), and • for the period whilst any appeal is pending (if the applicant is in the UK) (s3C(2)(c)).

Section 3C does not apply if:

• an application is decided before the applicant’s existing leave expires, or • an applicant’s leave has already expired by the time they apply for further leave (an out

of time application). For information on an applicant’s status when they remain under 3C or 3D leave, see related link. Section 3D leave Section 3D applies if:

• a migrant’s leave is curtailed with immediate effect • a migrant’s leave is revoked.

Related links 3C and 3D leave while an appeal can be made Links to staff intranet removed External links Immigration Act 1971 Nationality & Immigration Act 2002 Immigration Nationality & Asylum Act 2006 Section 8A – Immigration Act 1971

http://www.legislation.gov.uk/ukpga/1971/77/contents





http://www.legislation.gov.uk/ukpga/1971/77/section/8A

http://www.legislation.gov.uk/ukpga/1971/77/section/8A


Section 3D extends the leave and any conditions attached to it:

• during the period the applicant can make an in-time, in-country (in the UK) appeal (s3D(2)(a)), and

• during the period whilst any appeal is pending (if the applicant is in the UK) (s3D(2)(b)). Section 3D does not apply if an applicant’s leave is curtailed and they still have some leave remaining (normally 60 days). For more information on curtailment of leave, see related link. Applicant’s status under 3C or 3D leave Applicants who have their leave extended by section 3C and 3D stay under the conditions of that original leave. For example:

• An applicant subject to a condition code allowing employment may continue to work as before. Any restrictions on the type of work allowed or the number of hours they can work will still apply: o Tier 4 students are only permitted to work where they are following a course of

study. If they stop studying before completion of their course they will no longer be entitled to work and will be in breach of their conditions of leave if found working.

• If their application is later refused or withdrawn, leave extended under 3C or 3D comes to an end and they will be an overstayer if they remain in the UK (unless they have a right of appeal and that appeal is lodged in time).

• They will no longer have permission to stay in the UK and will not be permitted to work, run a business or have recourse to public funds.

Deemed Leave Section 3C leave also applies to an applicant who has deemed leave under section 8A of the Immigration Act 1971. This means a person who ceases to be exempt and needs leave will be treated as if they have been given leave to remain in the UK and will therefore be able to benefit from section 3C leave.


See related link: Section 8A: Immigration Act 1971 Invalid in-time applications If an in-time application is rejected as invalid (rather than refused) after an applicant’s leave has expired, 3C leave continues to apply until the date the applicant has received the notice of invalidity. Under paragraphs A34 and 34C of the Immigration Rules, the notice of invalidity must be given in writing and is accepted to have been received on the date that it is given, except where it is posted, in which case it is accepted to have been received on the second day after it was posted, excluding any day which is not a business day. Rejecting an invalid in-time application does not attract a right of appeal because it is not an immigration decision. This is because the rejection does not entail a refusal or variation of leave. Because the application is invalid, it has not received a substantive consideration.


3C and 3D leave

3C and 3D leave: appeals About this guidance When 3C and 3D leave applies Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This section tells you about 3C or 3D leave during the period when an applicant can appeal and while an appeal is pending.

In this section 3C and 3D leave while an appeal can be made 3C and 3D leave while an appeal is pending 3C leave pending the implementation of a tribunal decision Fresh applications made on the day an appeal is withdrawn Appeal time limits to determine when 3C ends


3C and 3D leave

3C and 3D leave while an appeal can be made About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you about section 3C and 3D leave during the period when an applicant can appeal. Leave is extended under sections 3C(2)(b) and 3D(2)(a) for the period when an applicant can make an appeal in the UK (in-country appeal) against the immigration decision. For information about appeal rights and what constitutes an immigration decision, see related link: Section 82 of the Nationality, Immigration and Asylum Act 2002. Calculating the period in which an in time appeal can be made The way in which the timescale for appealing an immigration decision is calculated changed on 20 October 2014. When you need to decide whether an appeal was brought in time, you must apply the correct tribunal rules. Appealable decisions sent on or after 20 October 2014 For all in country cases (including detained cases that are not in the detained fast track cases) the First-tier Tribunal must receive the notice of appeal no later than 14 days after the applicant was sent the notice of the decision against which the appeal is brought. If the appeal is unsuccessful and the applicant wishes to request permission to challenge the decision at the Upper Tribunal, the Tribunal must receive the request not later than 14 days after the date on which the applicant was provided with written reasons for the decision. For more information on the timescales to appeal, see rule 19 of the related link: The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Appealable decisions sent before 20 October 2014 Before 20 October 2014, in non-detained cases, an applicant had 10 working days in which to bring an in time appeal. If the decision was sent by recorded delivery post, the decision was treated as having been received two days after it was sent, unless the applicant can provide evidence to the contrary (for example, the letter was lost by the Royal Mail).

In this section 3C and 3D leave while an appeal is pending 3C leave pending the implementation of a tribunal decision Fresh applications made on the day an appeal is withdrawn Appeal time limits to determine when 3C ends External links Section 82 of the Nationality, Immigration and Asylum Act 2002 Section 97 of the Nationality, Immigration and Asylum Act 2002 The Asylum and Immigration Tribunal (Procedure) Rules 2005 The Tribunal Procedure (First-tier Tribunal)







http://www.justice.gov.uk/downloads/tribunals/general/consolidated-ait-rules-191211.pdf



http://www.legislation.gov.uk/uksi/2014/2604/contents/made

http://www.legislation.gov.uk/uksi/2014/2604/contents/made


This previous time limit was specified in the Asylum and Immigration Tribunal (Procedure) Rules 2005, which were replaced by the 2014 Rules. The new tribunal procedural rules apply from 20 October 2014. The transitional provisions for the new rules state that a time period for appealing which has started to run before the date on which they come into force, and which has not expired, shall continue to apply. A time period for an appeal will have started to run under the old rules if the decision was posted on or before 19 October 2014. This is because under the old rules, the timescale for appealing will be determined by the deemed date on which the decision was served. For decisions sent by post, the date of deemed service is determined by the date of posting the decision notice. Therefore the date of posting is the starting point for determining when the time period for appealing has started to run under the old rules. 3C or 3D leave during the 14 day period in which an applicant can appeal Leave is extended automatically under sections 3C(2)(b) and 3D(2)(a) during the 14 day appeal period whether or not the person does in fact appeal. If an appeal is not brought, any leave extended by section 3C or 3D ends after the 14 day period unless the appeal is allowed out of time. If an appeal is brought (made) in time, leave is extended by section 3C until the appeal is finally determined, withdrawn or abandoned. Out of time appeals If an out of time appeal is permitted by the First-tier Tribunal, leave under section 3C or 3D is taken to apply from the date the court accept the appeal which will reinstate the applicant’s conditions under their previous grant of leave. In these circumstances the applicant will not have been covered by 3C leave between the date of the original refusal and the day before 3C leave is reinstated. From that date, section 3C leave will continue until the appeal is finally determined, withdrawn or abandoned. In each of these instances, the effective date is two days after the decision was posted out to the applicant. Any removal action that has been started following the original refusal must stop.

Section 97 of the Nationality, Immigration and Asylum Act 2002 An appeal may not be brought or continued if the Secretary of State certifies the decision

(Immigration and Asylum Chamber) Rules 2014


being appealed was taken on the grounds of national security or in the public interest (section 97 of the Nationality, Immigration and Asylum Act 2002).


3C and 3D leave

3C and 3D leave while an appeal is pending About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you how leave under section 3C and 3D continues while an appeal is pending. Under sections 3C(2)(c) and 3D(2)(b) leave continues while an in-country appeal is pending. Under section 104 of the Nationality, Immigration and Asylum Act 2002 (see related link) an appeal is pending from the time it is brought until:

• it is finally determined • withdrawn, or • abandoned.

Once an appeal is no longer pending, 3C or 3D leave will also stop. Finally determined appeals An appeal is not finally determined while an application for permission to appeal to the Upper Tribunal (or, if applicable, the Court of Appeal) can be made. When all appeal rights have been exhausted, the effective date on which an appeal or permission to appeal is finally determined is the date on which the appellant receives notice or (in the Court of Appeal) judgment is given. This is considered to be two working days after postage unless the applicant can prove otherwise. Withdrawn appeals For further information on withdrawn appeals, please see related link: Fresh Applications made on the same day that an appeal is withdrawn. Abandoned appeals An appeal is treated as abandoned if the appellant is granted leave to enter or remain in the UK or if they leave the UK before the appeal has been decided. (section 104(4) and (4A)).

In this section 3C and 3D leave while an appeal can be made 3C leave pending the implementation of a tribunal decision Fresh applications made on the day an appeal is withdrawn Appeal time limits to determine when 3C ends External links Nationality, Immigration and Asylum Act 2002 - section 104

http://www.legislation.gov.uk/ukpga/2002/41




3C and 3D leave

3C leave pending the implementation of a tribunal decision About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you how 3C leave continues when the First-tier Tribunal has decided the original decision to refuse further leave was ‘not in accordance with the law (including decisions not in accordance with the Immigration Rules)’. If an appeal succeeds on the basis that our decision was ‘not in accordance with the law’, section 3C leave continues under subsection (2)(a) on the basis that no lawful decision has been made. Section 3C leave remains in place until the application has been lawfully decided. If the tribunal refers the case back to the Home Office to make a lawful decision, you must re-make the decision as soon as possible. For information on applications to vary leave following a tribunal decision, see related link.

In this section 3C and 3D leave while an appeal can be made 3C and 3D leave while an appeal is pending Fresh applications made on the day an appeal is withdrawn Appeal time limits to determine when 3C ends Related links Applications to vary leave following a tribunal decision External links Section 86 Nationality, Immigration and Asylum Act





3C and 3D leave

Fresh applications made on the day an appeal is withdrawn About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page explains how 3C leave is affected if a person withdraws their appeal and makes a fresh application on the same day. A person must withdraw their appeal in order to submit a fresh application. Once their appeal is withdrawn, their 3C leave ends. Checking the withdrawal You must check any outstanding appeal has been withdrawn and note CID before you validate an application form. You must reject the application as void if an appeal has not been withdrawn. Out of time application An application made after an appeal is withdrawn is out of time, even if it is made on the same day. This is because legislation prevents a person from making a fresh application until an appeal has been withdrawn. Withdrawal of appeals in the First-tier Tribunal An applicant may withdraw an appeal:

• orally, at a hearing, or • at any time, by filing written notice with the tribunal.

The tribunal must:

• withdraw the appeal if the respondent notifies them the decision or decisions to which the appeal relate have been withdrawn

• serve a notice that the appeal has been recorded as having been withdrawn • record the effective date of withdrawal on the notice.

An appeal must be treated as withdrawn when the notice of withdrawal is received by HM

In this section 3C and 3D leave while an appeal can be made 3C and 3D leave while an appeal is pending 3C leave pending the implementation of a tribunal decision Appeal time limits to determine when 3C ends External links The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 – rule 17. Immigration and Asylum Contacts

http://www.legislation.gov.uk/uksi/2014/2604/pdfs/uksi_20142604_en.pdf





http://www.legislation.gov.uk/uksi/2008/2698/article/17/made




http://www.justice.gov.uk/contacts/hmcts/tribunals/immigration-asylum

http://www.justice.gov.uk/contacts/hmcts/tribunals/immigration-asylum


Courts and Tribunal Service (HMCTS). If you need to check the withdrawal date because it has not been recorded on CID or there is a discrepancy or dispute, you can contact HMCTS, see related link: Immigration and Asylum Contacts For more information see related link: The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 – rule 17. Effective date of withdrawal The table below tells you when the withdrawal of an appeal to the First-tier Tribunal is effective.

Scenario Date withdrawal effective Oral withdrawal at a hearing Date of the hearing Written notice of withdrawal sent to the tribunal

Date notice is received by the tribunal.

Withdrawal of appeals in the Upper Tribunal An applicant may give notice of the withdrawal of their case, or any part of it:

• at any time before a hearing, or • orally at a hearing.

Effective date of withdrawal A notice of withdrawal will not take effect unless the Upper Tribunal agrees to it except in relation to an application for permission to appeal. The Upper Tribunal must notify each party in writing of the withdrawal. The effective date of the withdrawal is contained in the notice issued by the court. For more information see related link: Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 – rule 17.


3C and 3D leave Appeal time limits to determine when 3C leave ends About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you when somebody can lodge an in-country appeal which helps you to determine when 3C leave ends. A notice of appeal must be lodged with the tribunal within the specified period below from the date of service of the appealable decision.

When the decision was sent Number of days in which to lodge an appeal

On or after 20 October 2014 • the tribunal must receive the notice of appeal no more than 14 days after the applicant was sent the notice of decision against which the appeal is brought, or

• 2 days after the day on which the notice of decision was given if they are in the detained fast track system.

Before 20 October 2014 • 10 days from date of service of the

decision against which the appeal is brought (the date of service is the date on which the applicant receives the decision notice. This is deemed to be 2 working days after the date on which the decision was posted, unless the applicant can prove that the decision was received on a later date).

• 5 days from date of service of the decision against which the appeal is brought if the appellant is detained (unless they are in the detained fast track

In this section 3C and 3D leave while an appeal can be made 3C and 3D leave while an appeal is pending 3C leave pending the implementation of a tribunal decision Fresh applications made on the day an appeal is withdrawn Related links Links to staff intranet removed External links Appeals Policy

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/appeals/


system when the limit is 2 days from date of service).

For further information about lodging an appeal, see related link: Appeals Policy. For further information about calculating the date of service, see related link: Means and date of service.


3C and 3D leave

Applications to vary leave during 3C leave About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you what to do if an applicant attempts to submit a further application when they are covered by section 3C leave. While the person’s leave is extended by section 3C or 3D, they cannot make a new application to extend leave. Section 3C does, however, allow the person to vary the grounds of their application at any time before it is decided by the Secretary of State. This is as a result of the Court of Appeal’s decision in ‘JH (Zimbabwe) [2009] EWCA Civ 78’. A variation can:

• change the: o length of time the person is applying to remain in the UK o reasons the person is applying to remain in the UK

• allow someone to reflect a relevant change of their circumstances since the original application

• be made even if this requires the application to be made on a different form to the one required for the original application.

For more information on varying an application, see related link. Decided applications An applicant cannot vary the grounds of their application after it has been decided. This is because once it has been decided it ceases to be an application, so there is no application to vary under section 3C. Where the Secretary of State makes a decision to give, refuse or vary leave, that decision must be given by notice in writing to the person affected under S4(1) of the Immigration Act 1971. For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is ‘decided’:

In this section Varying leave: example scenarios Applications to vary leave following a tribunal decision Related links Reconsiderations Links to staff intranet removed External links Section 19 - UK Borders Act 2007 Section 85A - Nationality and Immigration Act 1970 Immigration (Continuation of Leave) (Notices) Regulations 2006 – regulation 2 Immigration (Notices) Regulations 2003 – regulation 7(4)

https://www.gov.uk/government/collections/other-cross-cutting-guidance-modernised-guidance














• when notice of an appealable decision has been served in accordance with the

Immigration (Notices) Regulations 2003 or where no such notice is required, • when notice of a non-appealable decision has been served in accordance with

Immigration (Leave to Enter and Remain) Order 2000. See related link: Immigration (Continuation of Leave) (Notices) Regulations 2006 – regulation 2. Decisions served by post Where an application has been refused, a notice is required under the Immigration (Notices) Regulations 2003. Where the notice is sent by post in line with regulation 7(1) (c) of those regulations, it is presumed to have been served, unless otherwise proved:

• on the second day after it was posted if it is sent to a place within the UK • on the 28th day after it was posted if it is sent to a place outside the UK.

For more information, see related link Immigration (Notices) Regulations 2003 – regulation 7(4). Information submitted after the decision Any new information sent by the applicant after their application has been decided must be dealt with as part of the appeal, providing:

• an appeal has been lodged, and • the appellant is eligible to submit further evidence in support of that appeal.

The only exceptions to this are:

• In the limited circumstances where the Home Office agrees to reconsider the original decision and the new evidence is: o eligible to be considered, and o is relevant to the decision. For more information on reconsiderations, see related

link.

Immigration (Leave to Enter and Remain) Order 2000





• Where the Home Office agrees to withdraw and remake a decision. In this case the application is still outstanding and you may consider the new information.

• Where the application was made under the points-based system and the circumstances set out in Section 85A of the Nationality and Immigration Act.

3D leave Section 3D extends leave in circumstances where leave is curtailed or revoked. Leave is continued:

• for the period during which an appeal can be brought (made), or • (if an appeal is brought) until it is determined, withdrawn or abandoned.

While a person’s leave is extended by section 3D they may not vary it.


3C and 3D leave

Varying leave: example scenarios About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page gives you example scenarios of people varying leave during 3C leave and tells you what grounds to consider.

Scenario Can leave be varied?

• Person A has made an in time application for leave to remain as a student which has not been decided by the time their current leave expires.

• They have also married whilst in the UK and then make a marriage application for leave on that basis after their leave had expired but before the student application was decided.

Yes: • Person A’s leave is extended by section

3C while the student application is being considered so they cannot make a fresh application, but they can vary the grounds of the application.

• The marriage application can be accepted as a variation of the student application if it meets the standard requirements for an application to vary leave. For more information, see related link: Applications to vary leave during 3C or 3D leave.

• Person B makes an in-time student application which is refused after their original leave has expired.

• They subsequently lodge an appeal against that decision.

• Person B marries in the UK and submits an application under the marriage category.

No: • You must reject the marriage application

because it was made after the student application had been decided.

• If the migrant wishes to submit a marriage application, they must withdraw the appeal before they submit the application. Withdrawing their appeal will end their 3C leave so any marriage application will be made out of time.

A migrant can vary their application more than once. For example:

Yes:

In this section Applications to vary leave following a tribunal decision External links Continuation of leave pending a variation decision: Immigration Act 1971

http://www.legislation.gov.uk/ukpga/1971/77/section/3C





• Person C makes an in time student

application which has not been decided by the time their current leave expires.

• Person C subsequently makes a marriage application followed by a Tier 2 application as a further variation of the original application.

The applications can be accepted as variations of the student application if they meet the standard requirements for an application to vary leave. For more information, see related link: Continuation of leave pending variation decision - Immigration Act 1971.

Effect of variation on original grounds Unless the applicant makes it absolutely clear they want their application to be considered on the varied grounds only, you must consider both:

• the original application grounds, and • the variation of the original application.

If you have any doubt about the grounds the applicant is applying under you must ask them to clarify. Considering all grounds You must not assume an applicant wants to replace the original grounds with the variation grounds simply because they appear inconsistent. For example, if a person asks for leave to remain as a foreign spouse after an initial application to remain as a visitor, and still wants the visitor grounds to be considered, you may think the marriage application casts doubt on the applicant’s intention to leave the UK at the end of the visit. However, you still need to make a decision on the visit grounds as well as the marriage grounds. Where an application is varied, the variation grounds will be decided in line with the Immigration Rules in force at the date the variation is made and not with those in place on the date of the original application.


3C and 3D leave

Applications to vary leave following a tribunal decision About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page explains when a migrant can vary an application after an Asylum and Immigration Tribunal decision to allow an appeal. Allowed appeals: unlawful decisions Once an application has been refused it can no longer be varied. However, the migrant’s leave is extended under section 3C (2)(a) if:

• they appeal against the decision, and • it is found to be unlawful and returned to the Home Office to be remade.

In such circumstances, the application remains undecided as the original decision was unlawful and had no effect. The application remains outstanding and may be varied until the Home Office has made a fresh lawful decision. How the tribunal decision must be implemented It the tribunal decision is not being appealed it must be implemented. If the tribunal has found the decision to refuse the application was unlawful, you must remake the decision. You must take into account any findings of fact or law made by the tribunal. That will normally mean a grant of leave is appropriate unless:

• there has been a material change of circumstances, or • material deception was used in the application and the Home Office was unaware of it

at the time of application and appeal. In such circumstances you may be able to refuse the application on the new grounds when you remake the decision. Directions from the tribunal The tribunal may give a direction for the purpose of giving effect to its decision. Usually this will be a direction about the type or length of leave to be granted. For example, if the appeal was against the refusal of an application to be granted Tier 2 leave for three years, they

In this section Varying leave: example scenarios Related links Links to staff intranet removed External links Section 87 of the Nationality, Immigration and Asylum Act 2002 Nationality, Immigration & Asylum A ct 2002 - section 86








tribunal may give a direction that leave be granted for three years because this would give effect to its decision. For more information see section 87 of the Nationality, Immigration and Asylum Act 2002. Requests to vary leave following an allowed appeal A person may apply to vary their original application:

• after the tribunal decision has been made but before the decision has been implemented, and providing

• the appeal was allowed because the decision was unlawful.

You must not accept an application to vary leave where the tribunal decision directs the Home Office to grant leave for a specified period of time. This is because the Home Office risk contempt of court if it fails to implement the appeal as directed. Dismissed appeals which recommend further consideration The tribunal may dismiss an appeal but recommend that the Secretary of State reconsiders the application outside the Immigration Rules. It is rare for the tribunal to give such a recommendation and it is not binding on the Home Office. In such circumstances the appeal has been finally determined and the migrant must submit a fresh application if they wish to apply on a different basis or raise new grounds. You must reject any request to vary the previous application. An appellant may add to, or amend the grounds of the appeal up to the time it is heard by the tribunal. This is an essential part of the one stop appeal process. Exceptions to this apply. Please see section 85A of the Nationality, Immigration & Asylum Act 2002 at the related link. Section 86(2)(a) of the 2002 act requires the tribunal to consider any matter raised as a ground of appeal. For detailed advice on when further grounds are made during the passage of an appeal, see related link: One-stop system.


3C and 3D leave

Applicant’s status after submitting a request for administrative review This page tells you what happens to an applicant’s immigration status if they make a request

for administrative review. In-time administrative review applications An applicant’s leave will be extended under 3C if:

• they apply for further leave before their current leave expires, and • following refusal of the application, they are eligible to make an application for

administrative review. If an applicant does not make a request for administrative review following an eligible refusal decision, their 3C leave ends on the last day on which they could have made an in-time application. If the applicant does make an in-time administrative review application, their leave is further extended under section 3C while their administrative review is pending. An administrative review is pending until:

• it is rejected as invalid because it does not meet the requirements of paragraph 34L to 34V of the Immigration Rules

• it is withdrawn in accordance with paragraph 34X, or • the outcome is served on the applicant.

Out of time applications Where:

• the applicant makes an out of time administrative review application in respect of an original application that was in-time, and

• the Home Office accepts the administrative review as valid because it would be

In this section Related links Links to staff intranet removed External links


unjust not to consider the application. Then 3C leave will continue from the date it is decided to reconsider the application. In this case the applicant will not be covered by 3C leave during the period between their leave expiring and the date on which we accept the out of time review application as valid. If the applicant made their initial application out of time which is refused and applies for administrative review of the decision, their leave is not extended under section 3C while the review is outstanding as it has already expired. They remain an overstayer but will not be removed while the application is pending. This does not mean the person has permission to stay or any entitlement to work. For further information, see related link: Liability for removal. Second review requests If, as a result of the first administrative review, an applicant is entitled to a second administrative review and submits one, their 3C leave will continue while the review is pending as described above. Administrative review of approved applications If an individual applies for administrative review of the period or type of leave granted following an approved application, this will not change the grant of leave. The length or type of leave granted will only be changed if the review is successful and a new grant decision is issued. If the individual’s leave expires while they are awaiting the result of the review, their leave is extended while the review is pending.


3C and 3D leave

Multiple ‘in time’ applications About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you how section 3C leave applies if a person makes more than one in-time application for further leave to remain. A person may make two or more applications for further leave while they have existing leave to remain. If multiple applications remain undecided after an applicant’s leave has expired, you must if possible, decide them all at the same time. If all the applications are refused, the refusal reasons and any subsequent appeal can then be addressed as part of one decision (the ‘one-stop’ appeal principle). For more information on the one stop system, see related link If the applications are decided at the same time there is only one period of 3C leave which is triggered by the initial in-time application which runs until:

• all applications are decided, and • appeal rights are exhausted on all appeal grounds raised against the refusal decisions.

If section 3C leave has been triggered and the multiple applications are not decided on the same date, the applicant’s leave is extended under section 3C until all appeal rights are exhausted. For more information on calculating this period, see related link: 3C and 3D leave while an appeal can be made.

Related links 3C and 3D leave while an appeal can be made Links to staff intranet removed


3C and 3D leave

Applications withdrawn by the applicant during 3C leave About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Withdrawing a refusal decision

This page tells you what to do when an applicant makes a request to withdraw their application for further leave during section 3C leave. Withdrawing applications for travel purposes If an applicant has an undecided application for further leave and asks for their passport to be returned to travel outside the common travel area (CTA) that application is treated as withdrawn under paragraph 34J of the Immigration Rules on the date the passport is sent to the applicant. If the applicant made an in time application, section 3C leave ends at the point the application is withdrawn. Paragraph 34J does not apply to people applying as Tier 2 or Tier 5 migrants whose applications are supported by certificates of sponsorship from a premium sponsor. Withdrawing applications for other purposes If an applicant makes a clear written request to withdraw their application, their section 3C leave will come to an end. The date the withdrawal becomes effective is the same date it is received by the Home Office. If the applicant’s request is unclear, you must:

• ask them to confirm they wish to withdraw their application for further leave, and • accept the withdrawal once they have made a clear request in writing.

External links Common Travel Area Immigration Act 1971

http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part1/



3C and 3D leave

Withdrawing a refusal decision About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave

This page tells you how sections 3C and 3D apply where the Home Office withdraws an immigration refusal decision. A decision to refuse an application for variation of leave can only be withdrawn by letter from the Home Office. For more information, see related link: Immigration Act 1971 (section 4). If an incorrect decision has been made, it is possible for you to withdraw it and make and serve a fresh decision, either at the same time as you withdraw the earlier one or later. Where an applicant’s leave was extended under section 3C before making the decision and that decision is then withdrawn, section 3C leave continues until the fresh decision is made and served and any appeal finally determined. Withdrawing a decision to curtail or revoke: 3D leave If leave to remain has been extended by section 3D, you can withdraw the decision to curtail or revoke leave to remain. This means that the curtailment or revocation has no effect and the original leave that was granted would continue to run.

Related links Immigration Act 1971 (section 4)




3C and 3D leave

Contact About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page explains who to contact for more help with a specific case relating to 3C and 3D leave. If you have read the relevant legislation and this guidance and still need more help with this category, you must first ask your senior caseworker or line manager. If the question cannot be answered at that level, you may use the related link: Email: administrative operational policy. Changes to this guidance can only be made by the guidance, rules and forms team (GRaFT). If you think the policy content needs amending you must contact the administrative policy team, who will ask the GRaFT to update the guidance, if appropriate. The GRaFT will accept direct feedback on broken links, missing information or the format, style and navigability of this guidance. You can send these using the link: Email: guidance, rules and forms team.

In this section Changes to this guidance Information owner External links Links to staff intranet removed


3C and 3D leave

Information owner About this guidance When 3C and 3D leave applies 3C and 3D leave: appeals Application to vary leave during 3C and 3D leave Multiple ‘in time’ applications Applications withdrawn by the applicant during 3C leave Withdrawing a refusal decision

This page tells you about this version of the ‘3C and 3D leave’ guidance and who owns it.

Version 5.0 Valid from date 4 February 2015 Policy owner Administrative policy team Cleared by deputy director

Sally Weston

Deputy Director’s role Head of Legal Strategy Team Clearance date 28 January 2015 Sally Weston Head of Legal Strategy Team 28 January 2015

Changes to this guidance can only be made by the guidance, rules and forms (GRaFT). If you think the policy content needs amending you must contact the administrative operational policy team using the related link, who will ask the GRaFT to update the guidance, if appropriate. The GRaFT will accept direct feedback on broken links, missing information or the format, style and navigability of this guidance. You can send these using the link: Email: guidance, rules and forms team.

In this section Changes to this guidance Contact External links Links to staff intranet removed

3c 3d Leave v5 0 Ext

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