Court of Appeal confirms that 3C leave can be revived

When a person’s visa expires whilst they have an outstanding application or appeal, they have what is referred to as “3C leave”. This is named after section 3C of the Immigration Act 1971, which essentially provides that the person’s visa continues until the application is decided.

An important and seemingly simple provision. Without it a person becomes an overstayer, subject to the hostile environment. However, the full text of the provision reveals a more complex framework:

 (1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)

(ca) an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or

(d) an administrative review of the decision on the application for variation—

(i) could be sought, or

(ii) is pending.

The section does not explain what happens when someone receives a decision refusing their visa application, they fail to appeal against this in time, but the Tribunal allows the appeal to be accepted late. Subsection (2)(b) brings their section 3C leave to an end. However, the section also tells us, in subsection (2)(c), that a person has 3C leave whilst their appeal is pending. Once accepted late, an appeal is pending. So does the person have 3C leave or don’t they, and when does this 3C leave start and end?

This is the issue the Court of Appeal grappled with in Akinola & Anor v Upper Tribunal & Anor [2021] EWCA Civ 1308.

3C leave – revived from the dead

Formerly it was widely understood that 3C leave could not be revived. The extension had to be seamless. Once it came to an end, that was that. This meant that 3C leave could not be revived by a late appeal being lodged.

However, that understanding was changed by the decision of the Upper Tribunal in R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019).

In Ramshini Upper Tribunal Judge Lane held that 3C leave could revive when an out of time appeal is lodged:

“…the use of the word ‘extended’ would appear, in its ordinary sense, to indicate that leave must be in existence in order that it may be extended or continued… The entire weight of construction which the respondent gives the section rests on the word ‘extended’. It is not, in my opinion, distorting the meaning of ‘extended’ to suggest that leave may be ‘extended’ following a hiatus during which it may have lapsed. Certainly, the section does not exclude that construction. Moreover, the parties agree that the applicant’s circumstances fall within (2)(c). It is clear from the structure of the section that the sub-paragraphs of section 3C(2) are disjunctive. Irrespective of the provisions of the other sub-paragraphs, the applicant’s leave, therefore, would, by a simple reading of the words of sub-section (2)(c), be extended during any period when an appeal under Section 82(1) of the 2002 Act, brought while he was in the United Kingdom, was pending within the meaning of section 104 of that Act.” (paragraphs 9 to 10 of Ramshini quoted at paragraph 46 of Akinola & Anor)

After this case, the Home Office duly changed their policy guidance. The parties were all agreed in the Court of Appeal that this is the correct interpretation of section 3C.

Once revived, is 3C leave rendered retroactively seamless?

This question was not the subject of agreement between the parties. The Home Office argued that 3C leave revived from the date the Tribunal allowed the appeal to be accepted late. This means there would be a gap in lawful status.

The appellants argued that the Tribunal allowing a late appeal has retroactive effect i.e. the person has had 3C leave all along. Their lawful immigration status is rendered seamless, with no gap.

The Home Office argued that it would be “bizarre” for the section to provide that on the same day a person is both in the UK unlawfully (due to the appeal deadline having expired – subsection 2(b)) and lawfully (due to a late appeal being accepted – subsection 2(c)). The statute would automatically produce two contradictory states of affairs.

This was described by Sir Stephen Richards, writing the leading judgement for the court, as a “powerful argument” (paragraph 55).

However, he also saw merit in the appellant’s argument:

“Where time is extended by the tribunal so as to permit an applicant to bring an appeal out of time, the applicant is exercising appeal rights in the same way as a person who brings an appeal in time; and for the protection conferred by section 3C to be fully effective, the section should operate to extend leave continuously in each case… In a case where the tribunal decides that an extension of time for appealing is justified, there is no obvious reason why the applicant should be in a worse position as regards the continuation of leave under section 3C than a person who brought an appeal in time. The case of Mr Alam, whose appeal was brought many months out of time because of delayed receipt of the Secretary of State’s decision, highlights the potential unfairness of holding that leave under section 3C revives only with future effect from the date when the appeal is instituted.” (paragraph 52).

Ultimately, he found in the Home Office’s favour:

“Purposive considerations favour the applicants’ approach to the section but in my judgment they are not strong enough to carry the day. I feel driven reluctantly to the conclusion that the approach taken by the Secretary of State is the correct one, even though it results in a gap in the protection afforded by section 3C to applicants who appeal out of time, however good their reasons may be for the delay.” (paragraph 56).

The Home Office is able to exercise its discretion to bridge this gap, and the court expresses a hope that they will do so. Fortunately the Long Residence guidance tells caseworkers that they “should normally use discretion to disregard the break in continuous lawful residence immediately prior to the Tribunal granting permission to proceed” where the appeal is allowed or where a visa is granted following a further application made within 14 days of the appeal being dismissed. So the court’s hope has been fulfilled.

When does 3C leave revive?

Again, this was a matter of contention between the parties. The Home Office argued that it revived on the day the Tribunal accepted the appeal late. The appellants argued that it revived on the day the appeal was lodged.

On this issue, Sir Stephen Richards found in favour of the appellants:

“…where an extension of time is granted, it seems to me that it will be granted up to the date when the notice of appeal was filed; and in considering whether to grant such an extension, the tribunal will focus on the reasons for delay up to that date. Any further lapse of time between the date when the notice of appeal was filed and the date when the application for an extension of time is decided will depend upon the tribunal’s own workload, resources and priorities and will generally be irrelevant to the decision. In the circumstances I take the view that when an extension of time is granted, it renders the notice of appeal effective from the date when it was filed, so that the appeal proceedings are instituted at that date rather than at the date when the decision to extend time is made or written notice of it is provided to the parties.” (paragraph 61)

This overruled the conclusions of the Upper Tribunal on the same point in Ramshini. It was accepted that this:

“…involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed. In this case, however, it seems to me to be the clear result of the relevant legislative provisions.” (paragraph 64).

The similar issue of what happens when the Home Office withdraws a decision was also considered. The same approach was adopted: 3C leave is brought to an end when the first decision is issued and then revived for the future from the date of withdrawal.

This will be an important decision for anyone who has lodged a late appeal, as it means they can work whilst the appeal is pending.