UPDATE

Further revisions to Section 3 C Leave – December 2016

The Home Office have replaced the 28 day grace period with a 14 day grace period as set out in paragraph 39E of the Immigration Rules.
This sets out instances where an application may be accepted:

• within 14 days of leave expiring where there was a good reason beyond the control of the applicant or their representative why the application could not be made in-time;

• within 14 days of the date of a decision to refuse an application which was either made in-time or within 14 days;

• within 14 days of 3C leave expiring;

• within 14 days of the deadline for lodging an administrative review application or appeal against a refusal decision, following an application made in time or within 14 days; or

• within 14 days of any administrative review or appeal being concluded, withdrawn or abandoned or lapsing, following an application made in time or within 14 days.

The Supreme Court in the case of R (Mirza & Ors) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016).
This case concerns whether leave is extended under section 3C of the Immigration Act 1971 if it later turns out that the application for further leave to enter or remain making was invalid even though the application had been made in time. The Supreme Court was forced to conclude that, because of the way in which the law is drafted, leave is not extended. This means that a person whose application to extend their leave turns out to be invalid after their leave has expired does not benefit from 3C leave, including during the period before the mistake was discovered. In one of the cases considered, and dismissed, by the Supreme Court, the application was invalid as the applicant had not paid the correct application fee which had increased shortly before he made his application. As the application had been made close to the expiry of his leave, there was no time to correct the mistake and make a valid application before his leave expired. The Supreme Court criticised the Home Office for failing to address the difficulties caused by the lack of flexibility in the provisions.

The Home Office new updated version of its policy on section 3C and 3D leave: Leave extended by section 3C (and leave extended by section 3D in transitional cases).
Section 3C and 3D leave is an automatic type of leave so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided.
However Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. (Where the decision is made after the person’s leave expired, section 3C continue to work )
The first subsections of section 3C now read:
3C Continuation of leave pending variation decision
(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,] 4 is pending (within the meaning of section 104 of that Act), or
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending…