Subject to meeting a number of requirements set out in the Immigration Rules, you can make an application for Indefinite Leave to Remain (ILR), also known as settlement, on the basis of having completed a period of ten years continuous, lawful residence in the UK. Ruth Jowett explores section 3C leave in long residence applications.
In order to make a successful ILR application on the basis of ten years residence, you must:
- have had at least ten years continuous lawful residence in the UK;
- not fall for refusal under the general grounds for refusal;
- be able to demonstrate sufficient knowledge of the English language and sufficient knowledge about life in the UK;
- not be in breach of UK immigration laws; and
- be able to show that, having regard to the public interest, there are no reasons why it would be undesirable be granted ILR.
To satisfy point one above, you must have held leave to enter or remain, temporary admission, or have been exempt from immigration control, at all times throughout the ten-year period.
Periods where you have held what is known as ‘section 3C leave’ can also be counted towards your period of continuous lawful residence.
What is section 3C leave?
When triggered, section 3C of the Immigration Act 1971 works to automatically extend leave to enter or remain in the UK.
When is section 3C leave triggered?
Section 3C is triggered when a person with valid leave to enter or remain in the UK makes an in-time application to extend or switch their leave, and their current leave expires before the new application has been decided.
Alex held leave to remain as a student under Tier 4, valid until 15 February 2019. On 20 January 2019, he made a valid application for leave to remain as the spouse of a British citizen. By 16 February, the Home Office had not made a decision on his application. Therefore, section 3C is triggered and Alex’s Tier 4 leave is automatically extended until a decision on his application has been made.
Should an application to extend or vary leave be refused, section 3C leave will be extended whilst you have the right to an in-country appeal, and whilst the appeal is pending. If your appeal rights are exhausted, your leave will not be extended by section 3C.
An appeal will be considered pending until it is determined, withdrawn, abandoned or lapsed.
In the same vein, section 3C will extend your leave where your refusal decision triggers the right to an Administrative Review (AR), for as long as you have the option of seeking an AR and whilst the AR is pending. Should your AR be unsuccessful, section 3C will not extend your leave past the date of decision, even where you make an application for further leave within 14 days of that decision.
It is important to note that Judicial Review proceedings do not trigger section 3C.
When will section 3C leave lapse?
Should you withdraw your application, appeal or AR, the section 3C leave that you hold on account of your pending application will lapse.
If you were to apply for your passport to be returned to you for the purpose of travel, your application will be deemed withdrawn. In any case, if you travel outside the Common Travel Area, your pending application will be treated as withdrawn on the date you leave. In these circumstances too, the section 3C leave that you hold will lapse.
Can section 3C leave come into effect if a decision on my application is made before my leave expires?
Unfortunately not, and this can create a problem.
Turning back to the example above, if Alex’s application for leave to remain as a spouse had been decided on 14 February 2019, the day before the expiry of his leave, he would not have had the benefit of section 3C leave. This means that unless he was able to quickly file a fresh application on 15 February, he would have become an overstayer on 16 February, even if he was appealing the decision to refuse his application.
How we can help
If you are interested in making an application for ILR on the basis of your long residence in the UK and have any concerns over your continuous lawful residence, we offer a range of services including an initial review of your personal circumstances and assistance in preparing your application.
If you would like to speak with one of our specialist immigration advisers about this or any other aspect of your application, please contact us.