Almost 3 years ago, I wrote this article regarding the operation of section 3C of the Immigration Act 1971, in circumstances where leave extended by virtue of that section has ended by a decision that is subsequently withdrawn or quashed, as well as the Home Office's position on the matter.
According to established public law principles, an unlawful decision has no legal effect, provided that it is quashed by the reviewing courts (or, by way of analogy, withdrawn by the decision-maker). Therefore, such a decision on an application for leave to remain does not end leave extended by s.3C. Nonetheless, the Home Office maintained a different view, as I set out in my article, published on 24 April 2018:
"In the [then] current version (8.0) of her policy, titled "Leave extended by section 3C (and leave extended by section 3D in transitional cases)", published on 6 March 2017, the Secretary of State for the Home Department mentions on four occasions that "section 3C leave can exist only where it is a seamless continuation of leave, either extant leave or section 3C leave."
This is mentioned in the context of out of time appeals or applications for administrative review when the Tribunal or the Secretary of State, respectively, accept the application for permission to appeal or for administrative review notwithstanding it was made out of time. It is also mentioned in the context of a decision by the Secretary of State on an application extending leave under s.3C, when that decision is subsequently withdrawn after s.3C leave has come to an end. In all circumstances, the Secretary of State's interpretation of the meaning of the statutory provision is that "when section 3C leave has come to an end, it cannot be resurrected"."
This position was first set out in version 6.0 of the aforementioned policy guidance, published on 21 March 2016. It should be noted that the Home Office's interpretation has no authority in law. The interpretation of primary legislation is a matter for the courts. However, in practice, Home Office caseworkers consider applications on the basis of the interpretation set out in the guidance, with detrimental consequences for applicants. Challenging a refusal on that basis in court is possible in some circumstances, but not without incurring additional expense and being involved in often lengthy proceedings, something not every person is in a position to undertake; especially if treated as an overstayer and being subjected to the hostile environment.
Fortunately, it appears that the Home Office's position has now changed. It only took 5 years. Version 10.0 of the policy guidance policy, titled "Leave extended by section 3C (and leave extended by section 3D in transitional cases)", published on 18 January 2021, states as follows:
The guidance has been amended to reflect caselaw that where a decision is withdrawn section 3C resurrects from the time the decision is withdrawn. Where an out of time appeal or administrative review application is accepted section 3C resurrects from the time the decision to admit the out of time appeal or administrative review is made.
Withdrawn decisions and section 3C leave
Pages 7-8 of the guidance reflect the current position in relation to withdrawn decisions:
Where a decision is withdrawn by the Secretary of State and the person has section 3C leave because of a pending appeal or administrative review, their section 3C leave will continue but will revert to leave under section 3C (2)(a) instead of section 3C(2)(b) as a decision on the original application will be outstanding.
Where a decision has been taken which has brought 3C leave to an end, and that decision is subsequently withdrawn the 3C leave will resurrect from the point the decision is withdrawn.
Withdrawing a decision has no effect on section 3C leave if the person did not have 3C leave at the time the decision was withdrawn.
This is a change from the previous policy position and reflects a change in caselaw. There will still have been a break in 3C leave from the point the decision bringing 3C leave to an end was served until it was withdrawn. For example, if the decision that brought 3C leave to an end was served on the 10 August and was not withdrawn until the 25 August from the 10 August to the 24th August the person will have been without 3C leave. However, where a decision is withdrawn and there is an application for leave outstanding, or a new application is made after a decision has been withdrawn, the person should not be disadvantaged by the break in their leave in having that application considered. This means you should treat the person as having been lawfully in the UK for the purposes of deciding the immigration application.
Where there has been a break in section 3C leave and you are granting leave on reconsideration of a withdrawn decision you should insert the following line in the grant letter:
"The break in your leave from (insert date section 3C leave came to an end) and the resurrection of section 3C leave (insert date of the decision being withdrawn ) will be treated as if you were lawfully present in the UK in any subsequent application that you make."
Where you are considering an application where there has been a break in section 3C leave you should check the decision letter which first granted leave (which will be on CID or Atlas) to see if the wording has been inserted in the letter.
As can be noted, the guidance states that leave will only be resurrected following the withdrawal of the decision bringing it to an end. Leave extended by s.3C will be considered broken from the point of service of the decision bringing it to an end and until the withdrawal of that decision. In practice, the intervening period tends to be considerably long, as the withdrawal of a decision usually occurs following a pre-action protocol letter, judicial review proceedings, or some form of reconsideration request and it is therefore highly unlikely, if not impossible, that there will be no break. In my view, this position is not appropriate or, perhaps lawful, in cases where the reason for the withdrawal was the unlawfulness of the withdrawn decision, although lawful decisions may also be withdrawn, for other reasons.
In any event, the guidance states that the break should not disadvantage an applicant, who should be treated as having been lawfully in the UK for the purpose of considering an immigration application. However, given that the guidance urges caseworkers to check the original decision letter for the wording indicating this, individuals should ensure that the wording has been inserted into their decision letter by the Home Office.
Quashed decisions and section 3C leave
The position is simpler when the courts have quashed an unlawful decision, in which case, as the guidance states on page 9:
Where a decision is quashed by the Courts then it is as if the decision had never been made. This means that where a decision that brought section 3C to an end is quashed by the Courts, section 3C leave will not have been brought to an end.
This follows the principle in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, where the House of Lords ruled that all species of public law error render an executive act ultra vires and null ab initio, and therefore there is no break between the service of the decision and its quashing.
Out of time appeals and section 3C leave
The position has also changed with regard to out of time appeals. The guidance states on page 12:
Section 3C leave ends when the person does not appeal or seek permission to appeal within the relevant time limit. Where an appeal is made out of time it does not extend section 3C leave. However, if the Tribunal grants permission for the appeal to proceed, 3C leave will run from when the Tribunal grants permission to proceed.
Cart JR's and section 3C leave
Given that a Cart JR is a judicial review of the Upper Tribunal's refusal to grant permission to appeal, a successful Cart JR resulting in the quashing of the refusal means that leave extended by s.3C never ended (page 14):
Where there is a JR against the Upper Tribunal's refusal to grant permission to appeal (PTA) from the First-tier Tribunal to the Upper Tribunal, the person will not have section 3C leave while the JR is pending, however if the JR results in remittal of PTA decision to the Upper Tribunal then, under Civil Procedure Rule 54.7A the refusal of permission by the Upper Tribunal is quashed, which mean section 3C leave will never have been brought to an end, for further information see Quashing a decision
Out of time applications for administrative review and section 3C leave
The position with out of time applications for administrative review seems to follow the position with out of time appeals (page 16):
Out of time application for administrative review Where an administrative review is made out of time it does not extend 3C leave However, if the administrative review is accepted 3C leave will run from the decision to accept it.
Conclusion
Whilst long residence applications involving one of the above circumstances could have been successful under the previous policy, on the basis that the Home Office treated an applicant as lawfully resident notwithstanding a break, applicants are now in a better position to argue that they have been lawfully resident in the UK. In any event, careful consideration of a person's immigration history (and, perhaps, Subject Access Request records) ought to be made before advising on the merits of an application, particularly when the operation of s.3C is at issue.