Does Section 3C extend a Fee Waiver applicant's leave?

While the applicant’s leave is extended by Section 3C and while their initial application is still pending, under the Section 3C (5) of the Immigration Act 1971, an individual can amend their existing application at any time before it is decided by the Secretary of State. The application to amend the existing application must be a valid application.   

This opportunity to vary the application by making a further valid application for permission to remain can be helpful if the applicant’s circumstances change while their initial application is pending, as they can then vary it to meet the requirements of another visa category.  An example of this is where due to the length of time an application has been pending, the applicant now meets the requirements for an indefinite leave to remain application.

Background

In the last few years there has been an increase in Fee Waiver applications as a way to bridge the gap between visa categories when someone cannot extend their current visa. An example may be a Graduate visa holder, whose visa is near expiry, but they cannot extend it due to the visa conditions, nor can they apply for a Skilled Worker visa as they do not have a job offer from a licensed sponsor.

The individual may choose to apply for a fee waiver as a last resort, to avoid leaving the UK, hoping the extra time will allow them to become eligible for another visa. However, this strategy can cause complications and might not guarantee protection under Section 3C.

Fee Waiver application

Fee waivers mainly apply to applications based on private and family life, human rights, and specific protection-based routes, but not to work visas. If the fee waiver is granted, to maintain the 3C leave the applicant must submit the (free) application under the route selected when applying for their fee waiver. If the fee waiver application is refused, the applicant will usually have 10 working days from the date of the decision to submit the main, paid visa application to maintain section 3C protection.

Issues

The Fee Waiver application form asks applicants to select which eligible visa route they intend to pursue. The applicant is also required to read and sign off the declaration at the end of the application, to confirm that the information provided in the application form is accurate. However, submitting a fee waiver for a route the applicant does not genuinely intend to pursue may amount to the use of deception and is a breach of immigration law.

When the individual later applies for a different visa route, often as a Skilled Worker, they will need to satisfy the requirements of Part Suitability which applies to most visa routes under the Immigration Rules. The Immigration Rules are getting stricter, and any breach of the Rules may result in refusal of the current and any future applications, potential departure from the UK, and up to a 10-year re-entry ban.

Under Part Suitability, SUI 9.1., an application for entry clearance or permission must be refused where the decision maker is satisfied that the applicant used deception by:

(a) making false representations or providing false documents or false information in relation to the application (whether or not relevant to the application); or

(b) not disclosing relevant facts in relation to the application.

Under SUI 11.4. (d)  an applicant will be treated as having breached immigration laws if, aged 18 or over, they used deception in relation to a previous application (whether or not successfully).  If the Home Office considers that deception was used, then any further applications is likely to be refused, or a granted visa may be withdrawn.

Submitting a fee waiver application just to get Section 3C leave can be extremely risky. The consequences can be severe. Often, leaving the UK before the individual’s visa expires and applying for a new visa from abroad is a viable alternative.

Conclusion

Section 3C offers valuable protection for migrants who file timely, valid applications, letting them maintain their status while waiting for a decision. While it enables individuals to potentially vary their application if their circumstances evolve, careful consideration of visa options and strict adherence to the immigration rules are essential for maintaining lawful status and compliance with Immigration Rules.

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