'Section 3C leave' - a problem of proof - Boodle Hatfield

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20 Feb 2023

‘Section 3C leave’ – a problem of proof

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Zoe Jacob View profile
2 min read

A very interesting article from the Independent on the impact of 'section 3C leave' on migrants, in the context of the hostile environment.

Section 3C leave is the means by which a migrant's lawful right to remain in the UK is extended whilst they wait for a decision on an 'in-time' application for further leave to remain in the UK. An 'in-time' application is one which is made before the migrant's current leave to remain in the UK expires.

Technically, all the rights which a migrant had before their last visa expired are extended whilst they are on section 3C leave. For example, if a migrant had permission to work on their previous visa, then that permission is extended whilst a decision is made on their pending in-time application. As long as they do not leave the UK during this period, these rights will be extended until the migrant receives a decision on their new visa application. Some migrants with complex visa applications, ineligible for premium processing, can remain on section 3C leave for several months, hence this is of utmost importance. 

The practical problem for many migrants, is that their Biometric Residence Permit ('BRP') or online status is valid only for the period of their initial leave, and no equivalent document is issued to prove their status during period they are on section 3C leave. A judicial review has been brought by the Refugee and Migrant Forum, a charity, on this basis. They argue that the lack of documentary evidence of section 3C leave is leading employers and other agencies to wrongly conclude that such migrants do not have certain rights (for example the right to work or rent) in the UK. In a hostile environment, where migrants have to prove their lawful status in the UK to access housing and employment, the charity argue that the government should provide documentary evidence of section 3C leave for precisely this reason. 

In a context where the Home Office is looking to digitalise the border (i.e. phase out physical immigration documents and extend the use of digital immigration statuses), it will be be fascinating to see if  this judicial review will drive them to find a pragmatic solution to the problem. 

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