The writer is a senior Solicitor of England and Wales and heads Immigration and Asylum Department at Wright Justice Solicitors.
The Immigration Practitioners and Litigants often use the term Section 3C leave. There is confusion about the applicability of S.3C leave, when it comes into play and how far it can remain in play. It is therefore, very important to first know what the term S.3C leave is under the Immigration Act 1971. The Immigration Act contains this important section in it which deals with continuation of leave pending a variation decision. The Home Office has issued a guidance when leave is extended by section 3C (and leave extended by section 3D in transitional cases). The said guidance was updated and published on 15 January 2019.
As mentioned, this important section deals with continuation of leave pending variation decision which means that when an applicant applies for variation of leave to the Secretary of State and this application is submitted before the expiry of his/her existing leave to remain, Section 3C will come into play and the applicant can take the advantage of this important Rule. However this must be kept in mind that this Rule of automatic extension will come into play only if the application is made before expiry. Any application made even one day after the expiry will not attract the benefit of Section 3C leave. The question arises, what follows with the automatic extension? The benefit of automatic extension is that all the conditions attached to the applicant’s previous leave to remain will continue until the decision on his application or in case such an application is withdrawn. This is a huge benefit as the applicant can continue to take advantage of his entitlement to take up employment or become self-employed etc.
Section 3C and EEA Applications
It is very important to understand, when S.3C leave would be applicable as there is a misunderstanding that whenever an application is submitted to the Home Office, the leave will be extended under S.3C. However this point of view is not correct and such an automatic extension does not apply in any application under EEA Regulations as family members of the EEA Nationals. To clarify this, if someone is on a student Tier 4 (General) and after getting married to EEA National, applies for a residence Card under EEA Regulations, then leave will not be extended S.3C
Section 3C after refusal of application
It is very important to know what happens if an application for leave to remain is refused. This depends on whether there is a right of appeal or an administrative review given to the applicant. If there is an in-country right of appeal, then the applicant has 14 days to lodge the notice of appeal and once the notice of appeal is lodged, then S.3C will come into play and leave will be extended. However, if the notice of appeal is not lodged, then leave will end on the last day of 14 days. And most importantly, S.3C will be extended until all appeal rights are exhausted. Also, if the appeal is withdrawn or the applicant leaves the United Kingdom, then S.3C leave will come to an end.
It is important to note that if there is a right of an administrative review against the refusal of leave to remain and it is submitted within the time prescribed in the Rules, the leave will also be extended under 3C. One needs to know and understand the difference between Administrative Review and Judicial Review.
It is therefore advisable to be very careful in considering an application for ILR where it is presumed that you have completed ten years lawful residence in the United Kingdom and you are not sure about your situation which involves application of 3C leave.
How we can help
For expert advice and assistance regarding an application for indefinite leave to remain on grounds of long residence, or advice on overstaying and 10 years long residence ILR, contact the Author of this blog on 0121 772 4512.
Immigration Act 1971,
Home Office guidance on ILR and S.3C
Mr Abdullah is an English Solicitor, Arbitration Law expert and Human Rights Advocate. Mr Abdullah heads UK’s Midlands based Law Firm – Wright Justice Solicitors.
The Prime Minister Boris Johnson has quoted that “the UK should look at the "economic advantages and disadvantages" of an amnesty for undocumented migrants. It is absolutely true that I have raised it several times since I was in Government. I must say it didn't receive an overwhelming endorsement from the previous prime minister when I put it to her when I raised it once in Cabinet. But I have to say I do think that our arrangements are theoretically being committed to the expulsion of perhaps half-a-million people who don't have the correct papers and who may have been living and working here for many, many years without being involved in any criminal activity at all ... I think that the legal position is anomalous and we saw the difficulties that kind of problem occasioned in the Windrush fiasco."
Amnesty in general is a term used for an official pardon by the government for people who have been convicted of any particular kind of offense. With regards to immigration and Amnesty simply means the process of granting legal immigration status to persons who are in the United Kingdom illegally.
Many developed countries have announced Immigration Amnesties in the past. Spain was reported to announce an Amnesty in 2005. Applicants had to meet 4 major requirements to meet the criteria; a. Prove they entered Spain before last August (2004), b. have a job contract, c. no criminal record and d. have three months to sign up as taxpayers. This amnesty led to tens of thousands of people across the country queuing outside embassies and local council offices in Spain to prepare their documents.
In September 2018, the Republic of Ireland announced plans for a new “regularization scheme” to allow certain undocumented migrants to remain in the country legally. The announcement said, ‘the amnesty will be open to anyone who came to Ireland as an international student between January 2005 and December 2010 and is now undocumented’. This step followed a Supreme Court judgment that former holders of student status were entitled to have their family and privacy rights under the European Convention on Human Rights taken into account in their application for leave to remain. Court challenges were taken after the introduction of a new study policy in 2011 which meant that non-EEA students could only live in Ireland for a maximum of seven years. This amnesty had quit similarity to a former scheme which operated in 2011 for students who were already in the country prior to 2005.
Although the United Kingdom does not use the term ‘amnesty’, we can witness that there has been ‘implied amnesty’ schemes in the past. One of the most recent examples is the ‘Legacy caseload’ in the years between 2006 and 2011, whereby a large number of failed asylum seekers were granted Indefinite Leave to Remain (ILR).
The PM’s current announcement is a great proposal which would result in acknowledging approximately half a million illegal migrants gaining the right to remain in the UK. According to a recent survey conducted by the LSE team, illegal migrants oscillate between 417,000 and 863,000, including a population of UK-born children ranging between 44,000 and 144,000.
What could be the requirements for the proposed Amnesty Scheme?
What could be the key features of the scheme? This is the Million dollar question for everyone! The SSHD (Secretary of State for the Home Department) will need to consider some factors in order to set a criterion under the proposed Amnesty Scheme.
The most important factor which the SSHD would have to consider is the length of time an immigrant has spent in the UK. Currently, an illegal immigrant can make an application for leave to remain in the UK if s/he can prove that s/he has been in the UK for at least 20 years. S/he can make such an application under paragraph 276ADE (1) (vi) of part 7 of the Immigration Rules. We will have to consider amending 20 years requirements of paragraph 276ADE (1) (vi). This category is also known as private life in the UK.
There may be a condition requiring the applicants to have a clean record in order for them to become amongst the Amnesty beneficiaries. Being good for the public is already a requirement for most of the Immigration routes. Therefore, it would not be something new and of course, it will help overcome any potential abuse of the new Amnesty scheme.
Under S-LTR 1.1 to S-LTR 3.1 and Under S-ILR 1.1 to S-ILR 3.1 of Appendix FM of Immigration Rules, an application for Leave to enter / Remain OR Indefinite Leave to Remain may be refused if the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence. Under V 3.4 and V 3.4A of Appendix V of the Immigration Rules, the application for leave to enter as visitors will be refused if the SSHD believes that the applicant's presence is not conductive to the public good if the applicant has been convicted of a criminal offence.
The policy may introduce more lenient measures regarding the best interest of the children born and /or brought up in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. So, having a child could be a strength for an illegal applicant under Amnesty. Most importantly, the criteria will consider the child’s age, health conditions, upbringing issues and time he / she has spent in the UK,
The policy may consider insurmountable obstacles to the applicant (s) to move and stay outside the UK. Paragraph EX 1(b) of Appendix FM of Immigration Rules defines insurmountable obstacle means as ‘the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner’.
In order to avoid the new entrants who may come merely to benefit from the amnesty, the SSHD may include a requirement of legal entry in the UK until a stipulated time.
Claimed disadvantages of the Amnesty:
There are a number of individuals and organisations that are in disagreement with the PM’s Amnesty potential proposals. There are some common arguments against the idea;
The most common argument against the idea is that this way we will be seen to appreciate the illegal immigrants’ entry to the UK, remaining here and benefitting from the Amnesty Scheme.
It would reward illegal activity and be grossly unfair to migrants who take the time and care to go through the proper channels to secure legal status in the UK. Such a scheme would also likely be extremely expensive for the UK taxpayer.
Overstaying a visa, entering the country illegally or failing to depart, no longer having a legal right to be in the UK, are all criminal offences and punishable by fines and/or imprisonment, according to the Immigration Act 1971. It is an affront to the rule of law and to migrants to follow the correct channels, that a government should reward attempts to circumvent legal requirements.
Amnesties encourage further illegal immigration as those granted amnesty are simply replaced by subsequent waves of illegal immigrants into the black economy who also hope ultimately to remain undetected for long enough to be regularized.
Amnesties are costly in terms of extra benefits and public services they become entitled to.
An amnesty would also likely be costly for taxpayers. A person granted ILR is granted full access to the welfare state – ie, to social security benefits, education, healthcare and social housing.
Potential Benefits for the Amnesty:
The government officials do not have the information on an illegal migrant is and their activity while in the UK. This means that the government may not have any record of them being convicted of a crime or there are reasonable grounds to suspect, meaning it is more likely than not, they have been involved in crime. With the Amnesty Scheme, we will be able to obtain a record of every individual who has considered applying for LTR under the Amnesty Scheme. Therefore, it will be a great step in making Great Britain a safer country.
The Illegal migrants do not contribute towards the country’s economy in terms of Tax payment, National Insurance Contribution, in case of business, Corporation and business taxes. With the Amnesty Scheme these individuals can be geared into a Tax circle – a great contribution to the country's economy.
Those illegal migrants, who are eager to receive and enjoy the benefits of the Scheme, will of course, have to make a formal application for leave to remain under the anticipated amnesty criteria. There would be a fee payable for the applicants. Currently a standard fee for a Leave to Remain application is £1033.00. It would be another support to the country’s economy.
For almost every application for Leave to Remain (except for the EEA nationals, their family members, and asylum seekers), the applicant’s have to pay Immigration Health Surcharges, also known as IHS. Currently, for standard applications, the IHS is £400.00 per year and for students it is £300.00 per year. So for a standard application for leave to remain for 2 years and 6 months it would be £1000.00. This would be another great support to the economy in general and to the NHS in particular.
Is it really going to happen?
Let’s be honest, the PM’s remarks are unlikely to have an apparent impact upon the UK’s current Immigration policy. There are reasons for this assertion. Firstly, because he will have numerous issues for his immediate attention which he would need to address as a priority. Secondly, he would undoubtedly face strong opposition from his own party, given the party’s historical stance on immigration. Thirdly, the lack of any real detail on Amnesty raises questions about how serious the PM is on this issue.
The writer is a senior Solicitor of England and Wales and heads Immigration and Asylum Department at Wright Justice Solicitors.
The term “insurmountable Obstacles” is used when an applicant submits the application for leave to remain in the United Kingdom as the Partner of a British Citizen or settled person and he or she does not meet all of the requirements of the Immigration Rules. It is important to note that in the Appendix FM there is EX.1 which is very important as the applicant may still obtain leave to remain under Article 8 of the ECHR. The EX.1 deals with two exceptions.
deals with the situation if the applicant has a genuine and subsisting parental relationship with a child who is under the age of 18, living in the UK and is British Citizen or has lived in the UK for at least 7 years and it would not be reasonable to expect the child to leave the United Kingdom.
is relevant to this article and that deals with insurmountable obstacles and states that “the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or has leave with refugee status or humanitarian protection and there are insurmountable obstacles in the family life continuing outside the UK” .
As is evident from the wording itself, insurmountable obstacles is not ordinary in nature. The applicant therefore has to go through a strict assessment and needs to prove that the family life outside the UK would not be possible.
Insurmountable Obstacles and assessment
The point arises what are the “Insurmountable Obstacles”?. Immediately after Ex.1(b), there is EX.2 which defines the term and provides the starting point explaining what are the insurmountable obstacles. In my practice experience, people think of being a British Citizen and having extended family members and secured employment could be termed as insurmountable Obstacles which is not a correct approach. The term could be and as defined in EX.2 is “very significant difficulties which would be faced by the applicant and his or her partner which would not be overcome or would entail very serious hardship for the applicant and partner. Although this has been explained in the Home Office guidance, however, one needs to keep in mind that it is a very tough test and needs to be proved through assessment by the Tribunal that it is not possible for the couple to continue their family life outside the UK. This may include difficulty in obtaining entry to the country where they would have to return, or there are very serious hardships which the couple would not be able to overcome. Now, this has not been defined what those hardships are? It is for this reason that in my view, every case has its own merits and demerits and the legal representative dealing with the case, should be fully informed about the circumstances on return. This could be long term illness or disability, religious or social issues, inter-religion marriages and even the same sex Partner where the country of relocation does not recognise this.
In a situation, where it is not possible for the British Citizen or settled Partner to obtain entry to the country of relocation, because of the above-stated circumstances, it would be classed as insurmountable obstacles. In any appeal, where the couple has no children, the starting point for the Tribunal is whether the appellant meets the requirements of the Rules or not and whether there are insurmountable obstacles or not in family life continuing outside the UK. It is therefore very important to be very careful in drafting the representation and then statement in support of the appeal.
The Supreme Court's decision in R (Agyarko)  UKSC 11 made it clear that the scheme established by the overhauled Immigration Rules and associated instructions was lawful and compatible with article 8 of the ECHR. Overall, Agyarko not only entitles the Home Office to lawfully apply a test of insurmountable obstacles to the relocation of the family within the rules, it also permits the application of a test of exceptional circumstances outside the rules. It follows from the same that even if the test of insurmountable obstacles is not met, the Home Office should also consider the exceptional circumstances and if those exist, grant leave to remain outside the Immigration Rules.
R (Agyarko)  UKSC 11
Appendix FM of Immigration Rules
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