Section 3C and AR

[jafersadeq]

Dear Gurus,

I have an enquirey about section 3C:
If the applicant applied for application A as a fresh applicaion and he has a valid leave B, if the Home Office refused his (A) application, he has 14 days for administration review, if he applied for AR he will be under section 3C and within that period he applied for a second application type A, section 3C will be continued, if the HO refused the second application, does he have another 14 days for AR ? or not.

Senario 2, he applies for application B within the first AR section 3C and they refused his application, does he have 14 days AR?

Please answer

[secret.simon]

My reading of Section 3C and the Home Office's guidance on Section 3C leave both suggest that the scenario that you propose is not likely to extend Section 3C leave.

Section 3C leave only kicks in specifically when an in-time application is made. Once the in-time application is made, Section 3C kicks in for the duration the application is being considered and any administrative appeal of a refusal of that application.

But if a fresh application is made during the AR, the guidance states that the Section 3C leave ceases. And that seems to stem from subsection 4 of Section 3C.

A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

It also depends on how the phrase "limited leave to remain" in subsection (1)(a) is interpreted. It appears, prima facie, to exclude Section 3C leave itself. Section 33 (Interpretation) of that Act states;

“limited leave” and “indefinite leave” mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration;

Section 3C leave is not limited by duration. It is limited by the actions of the Home Office, but not by duration. It can therefore be argued that an immigration application made during AR of another application is not an in-time application and not covered by Section 3C at all and therefore can't extend Section 3C leave.

Even assuming that Section 3C leave could be tied back to back, as you suggest, the person making the applications would need deep pockets, as each refusal and AR would have attendant non-refundable costs. And the person must not leave the UK, as leaving the UK will automatically cease the Section 3C leave (subsection 3).

[jafersadeq]

But if a fresh application is made during the AR, the guidance states that the Section 3C leave ceases.

Dear secret.simon,
Many thanks for your answer.
1- I wonder if the applicant applied for a fresh application (spouse visa) during the AR, is he legal immigrant or overstayer?
can he work/study in the UK?

2- If the applicant applied an in-time application and he wants to study in a UK University, he is an international student, the university accepted him for his qualifications, and the Unit wants to apply for CAS /UCAS number, does CAS application affect his intime application?

If he gets a decision from the HO for his spouse visa that will be fine, if they refuse his intime applicatication and he made AR and within AR he applies for student visa application after he gets CAS, is that possible?

Please advise
Regards

[secret.simon]

1- I wonder if the applicant applied for a fresh application (spouse visa) during the AR, is he legal immigrant or overstayer?
can he work/study in the UK?

My understanding, based on the guidance and the text linked above, is that if the applicant filed an immigration application during AR, that would end the AR and the Section 3C leave. He would become an overstayer.

2- If the applicant applied an in-time application and he wants to study in a UK University, he is an international student, the university accepted him for his qualifications, and the Unit wants to apply for CAS /UCAS number, does CAS application affect his intime application?

I don't think the CAS application is an immigration application from the viewpoint of the Immigration Rules and hence it will not impact any immigration status, either positively or negatively. But wait for others to advise. I am not sure of this.

If he gets a decision from the HO for his spouse visa that will be fine, if they refuse his intime applicatication and he made AR and within AR he applies for student visa application after he gets CAS, is that possible?

As he would have become an overstayer (see above), his continuity of residence for the purpose of ILR (LR) would be broken and would start from zero.

[jafersadeq]

I don't think the CAS application is an immigration application from the viewpoint of the Immigration Rules and hence it will not impact any immigration status, either positively or negatively. But wait for others to advise. I am not sure of this.

As he would have become an overstayer (see above), his continuity of residence for the purpose of ILR (LR) would be broken and would start from zero.

Is there any discretion for the overstaying if the applicant applied a fresh application within AR?

[secret.simon]

Is there any discretion for the overstaying if the applicant applied a fresh application within AR?

Discretion in what sense?
Section 3C leave is broken automatically by operation of the law. There is no caseworker involvement and hence no scope for discretion.

As to discretion on the ILR LR route, keep in mind that the person will have to meet the requirements at the time of that application. The rules and strictness may change partway during the immigration journey. For instance, there used to be a 14 year illegal residence pathway to ILR. That got changed to a 20 year pathway to FLR(FP).

Who knows what the rules would be in 5 years, 10 years, perhaps even 15 years time?

[jafersadeq]

paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal or rejection of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal or rejection of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or
(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or
(3) the period of overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021.


Below from a law firm:

What is the 14-day with ‘good reason’ rule?
Under the current rules for late applications, the Home Office will disregard a period of overstaying provided a new application is made within 14 days of the previous leave expiring and the applicant can evidence ‘good reason’ for having overstayed.
This rule is contained in Paragraph 39E of the Immigration Rules. The Home Office will disregard a period of overstaying provided that:
“the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time.”
What if I made an application which was refused?
It is also possible to rely on this exception where you have applied in-time, meaning before your visa expired, but that application is refused. The Home Office will disregard the period of overstaying following a refusal of an in-time application where it was made:
within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Applicants whose applications have been refused are able to make another application within 14 days of their refusal. The ‘good reason’ requirement does not apply in these circumstances.
What counts as a ‘good reason’?
The caseworker guidance gives examples of reasons that might be accepted as beyond an applicant’s control, including:
• Being admitted to hospital for emergency treatment
• A close family bereavement
• An educational institution was late in issuing a Certificate of Studies (only relevant to Student applicants)
This is not a comprehensive list, but it gives an idea of what the Home Office may accept (with evidence).
The Home Office says that caseworkers will decide on a case-by-case basis and will give thought to:
• The plausibility of the reasons
• The credibility of the evidence
• Whether the reason was genuinely outside the applicant’s control, or whether the difficulties could be reasonably overcome
Does submitting a new application mean I am no longer an overstayer?
It is important to note that relying on this exception does not mean that an applicant is no longer an overstayer, only that overstaying will be ‘disregarded’ where the Secretary of State accepts these circumstances apply.
This means that if you submit a late application and seek to rely on Paragraph 39E, you will be an overstayer while the application is being processed and therefore will not have the right to work until you receive a decision and you are granted leave.


That means they disregard the overstaying period for the fresh application if made within the 14 days.