At OTB Legal, we understand that the period between submitting an application and receiving a decision can be a source of uncertainty. The fear of losing your right to work, rent, or study is a very real concern for many. This is where the often misunderstood but critically important provision of Section 3C leave comes into play. As an expert immigration team at OTB Legal, we frequently counsel Applicants on the protections it offers and, just as importantly, its limitations.
What is Section 3C Leave?
In simple terms, Section 3C of the Immigration Act 1971 is a statutory provision that automatically extends your existing immigration leave in certain circumstances. It is not a new visa/leave to remain application; rather, it is a legal mechanism that prevents you from becoming an overstayer while your application is being decided by the Home Office.
Section 3C leave is engaged when all three of the following conditions are met:
- You have existing leave to enter or remain in the UK.
- You submit a valid, in-time application to vary (change) that leave. For instance, an application to extend your current visa or switch to a different category.
- Your existing leave expires before a decision has been made on that new application.
The moment these conditions align, your previous immigration status is automatically extended by law.
Maintaining Your Current Rights
A point that cannot be stressed enough is that Section 3C leave preserves the conditions of your previous visa/leave to remain. This is a vital piece of reassurance for Applicants.
If your existing visa/leave to remain grants you the right to work, and you make an in-time application to extend it, your right to work continues uninterrupted under Section 3C leave while you await the decision. The same principle applies to the right to study or access public funds, provided these were permitted on your previous grant of leave.
It is essential to note: if your current visa/leave to remain does not include the right to work (for example, you are on a Visitor visa), submitting an application will not grant you that right. Section 3C simply extends what you already have; it does not confer new entitlements.
The Impact of Travel
This is perhaps the most common and serious pitfall that most applicants encounter. If you travel outside the Common Travel Area (which includes the UK, Ireland, the Isle of Man, and the Channel Islands) while your application is pending, your Section 3C leave will automatically terminate.
The consequences of this are severe:
- Your application will be treated as withdrawn by the Home Office.
- You will lose your right to be in the UK and your associated rights to work or study immediately.
- You will likely be unable to re-enter the UK to wait for your decision and may need to apply for a new visa from your home country, starting the process anew.
Therefore, you must avoid all international travel until you have received a decision on your application. If there is an urgent need to travel, then the Home Office may agree to speed up their decision making.
Can you put in a new application whilst you are on Section 3C leave?
If a person is on Section 3C leave and has not received a decision on their application from the Home Office, it is possible for them to vary their application to a different type of application. Submitting a variation application is done in the same way as submitting a new application (i.e. the online application form is completed and submitted).
When an application has been varied in this way, the person will need to pay the Home Office fees for the variation application. However, they should receive back the fees that were paid for the initial application (although these refund can take a while to be received).
When a variation application is made, the Home Office in most circumstances will only then be considering the new application. Apart from a few exceptions, the immigration rules make it so that a person can only have one application outstanding at a time.
There may be a number of different reasons why you want to vary your application. For example, at the point that your leave was expiring you may have applied for an extension of leave to remain, however, whilst waiting for a decision on that application you may have accumulated 10 years lawful residence and now qualify for indefinite leave to remain. In that situation, you could go ahead and submit the indefinite leave to remain application. This has the advantage of ensuring that a person is granted their indefinite leave to remain at the earliest opportunity but also means that the person would receive the Home Office fees back for their original extension application.
Whilst you can vary an application whilst on Section 3C leave before the Home Office have reached a decision on that application, the situation changes once the Home Office have reached that decision. After that point, even if your leave is being automatically extended, you cannot put in a variation application. Instead you would need to withdraw any appeal / administrative review before you made your new application (and this would mean the person was now an overstayer whilst waiting for a decision on that new application).
Can an appeal trigger Section 3C leave?
If a person receives a decision refusing their application and they have a right to appeal or submit an administrative review, then the Section 3C leave will automatically continue during the period that they are able to submit the appeal or administrative review. As long as the appeal / administrative review is then submitted before the deadline, that person’s Section 3C leave will then continue whilst they are waiting for a decision on their appeal or administrative review.
Consequences of breaking Section 3C leave
Section 3C leave can be broken in a number of different scenarios. One example would be as follows:
- A person submits an application to extend their leave to remain before their previous leave expires. Once their previous period of leave expires, Section 3C leave is triggered and that person’s leave is automatically extended;
- The person receives a decision refusing their application with no right of appeal or administrative review (after there previous period of leave expired). This brings their Section 3C leave to an end;
- That person submits a new application for leave to remain. However, as that person’s previous Section 3C leave had already come to an end, they had no status at the point of submitting their new application. As a result that person no longer can rely upon Section 3C leave whilst waiting for a decision on their new application and they are now an overstayer.
It is a common misunderstanding in the above situation that if a person submits a new application within 14 days of their Section 3C leave coming to an end, that they still benefit from Section 3C leave. However, if a person did not have status at the point of submitting their new application, this cannot restart Section 3C leave and that person will not be considered to have status whilst their new application is being considered.
This could have long term consequences for a person – for example they may have broken their continuity of residence which could impact the point at which someone is able to qualify for indefinite leave to remain.
Does a Fee Waiver application trigger Section 3C
If a person submits a fee waiver application before their current period of leave expires, this will also trigger Section 3C leave. If that fee waiver application is rejected, the person has 10 working days to make a paid for application and as long as the paid for application is submitted within 10 working days, then Section 3C leave will continue whilst that new application is being decided.
However, a note of caution – it is very important that fee waiver applications are only used for genuine purposes where a person is intending to submit an application in one of the routes that qualifies for a fee waiver and where the person is unable to afford to pay the Home Office fees. Misuse of the fee waiver route for applications could be considered deception and jeopardise a person’s future immigration applications (or even potentially result in the pursuit of criminal proceedings).
How OTB Legal Can Help with your Section 3C Leave:
The UK immigration system is complex, and the rules surrounding Section 3C are strict. Ensuring your application is “valid” and made “in-time” is the critical first step to securing this protection. A simple error in the submission process can mean the difference between being lawfully present or becoming an overstayer.
Our team of dedicated immigration lawyers at OTB Legal is here to provide clarity and support. We can:
- Ensure your application is prepared and submitted correctly and on time to secure Section 3C leave.
- Advise you on your exact rights to work, study, and access services during the waiting period.
- Provide robust guidance on what you can and cannot do to avoid jeopardising your status.
For more tailored advice, please contact our expert immigration team.
Contact Us
Not quite ready to book an appointment yet or unsure if it’s the right step for you? No worries! We understand that making decisions regarding legal matters can be daunting.
Reach out to our Client Care Manager, Rikki, who will be more than happy to assist you and guide you in the right direction.
Your peace of mind matters to us, and we’re here to support you every step of the way. Contact Rikki today for personalised guidance and assistance.
