Immigration Vanish

In a battery of further measures designed to make life more difficult for immigrants in the United Kingdom the Government have announced their intention to bring into force Section 62 of the Immigration Act 2016. This section introduces a new power to cancel leave that has been extended under Section 3C of the Immigration Act 1971.

Section 3C operates in circumstances where a person makes an application for further leave before their visa expires and the Home Office has not decided that case until after their leave expires. In this scenario leave continues on the same terms and conditions until a decision is made. It also operates to extend a person’s leave on the same terms and conditions if they appeal or seek an administrative review of a decision until there has been a final determination of that issue.

This section of the 1971 Act occupies a central role in the functioning of immigration practice on a day and daily basis. It is very unusual for decisions to be made following an application prior to the expiry of an applicant’s leave and therefore Section 3C operates in the vast majority of cases.

As a result of recent changes it has not operated without difficulty.

Particular problems have arisen with the operation of Section 3C(1)(c).

Problems have arisen when an applicant (often at the Public Enquiry Office) has made an application during the currency of their visa. A refusal of the application has given rise to a right to appeal on human rights grounds.

However, an applicant, in those circumstances who exercises the right to appeal runs the risk of their visa expiring and becoming an overstayer.

The operation of this section of the Act (in those circumstances) does not have the effect of extending an applicant’s leave even though they have appealed.

This put many applicants in the position of wanting to appeal a decision but being unable to do so because their leave would expire prior to the matter being resolved.

This led to immigration lawyers advising their clients to apply late and not at the Premium Service Centre in certain circumstances.

The further proposed change embodied in Section 62 of the 2016 Act introduces a new Section 3A to the 1971 Act which indicates that leave extended by virtue of 3C may be cancelled if the applicant has:-

  • Failed to comply with a condition attached to the leave; and
  • Has used or uses deception in seeking leave to remain (whether successfully or not).

This draconian provision will have potentially serious consequences for those making immigration applications prior to their leave expiring.

This power is delegated to an immigration official.

The effect of a decision would be that an alleged transgressor would be left with no leave until the Home Office made a substantial decision in their case. This could take a number of months or up to a year while waiting for an appeal date.

In effect the applicant would be an overstayer and subject to the rigorous regime that has been introduced in respect of overstayers. They wouldn’t be able to work, rent a house, have a bank account and would have to surrender any driving licence that they had.

It is also important to note that there is no right of appeal or administrative review of a decision to cancel 3C leave in such circumstances.

In the worst case scenario you could have an immigration official trawling through not just the current application but previous applications relating to this applicant and forming a view (albeit erroneous) that the applicant had failed to comply with a condition attached to leave or used deception.

These are draconian powers indeed with very little checks and balances against the exercise of this power.

Anyone who finds themselves in such a situation or who plans to make an application will require expert advice. Drummond Miller has a team of experts in this area and is happy to provide advice on these matters.