Section 3C Leave and Right to Work: The Immigration Act 1971
Section 3C of the Immigration Act 1971 comes into effect if a person’s leave to remain expires whilst their immigration application is still pending. It is designed to prolong their leave whilst they await the decision on their application, granting them ‘section 3C leave’.
The UK Home Office’s creation of the Legacy Cleansing Team within the Asylum Legacy Casework unit has prompted concerns regarding the limitations placed on the right to work for asylum seekers. By issuing a Notice to Report and imposing restrictions on employment, including those who claimed asylum while holding a valid visa in the UK, the Home Office’s actions have raised questions about fairness and the impact on the well-being of vulnerable individuals awaiting their substantive interview.
The Home Office’s decision to restrict the right to work for individuals on immigration bail can profoundly affect their lives and well-being.
Asylum seekers who have claimed asylum after entering the UK with a valid visa often face uncertainty regarding their right to work. In such cases, Section 3C of the Immigration Act 1971 becomes particularly relevant. In this article, the Immigration Team at Richard Nelson LLP, with contributions from Rita Kotecha, will explore the implications of Section 3C and shed light on the right to work for asylum seekers who claim asylum after entering the UK with a valid visa.
If you’re interested in one particular section, use the links below to navigate straight to it:
- What is Section 3C?
- When does Section 3C apply?
- What is Section 3C leave?
- How long does Section 3C leave last?
- Are asylum seekers allowed to work? Section 3C guidance
- Section 3C challenges and considerations
- What happens after a decision on an asylum application under Section 3C?
- How can I ensure that I secure Section 3C leave?
- How we can help
Ready to understand more about Section 3C and your right to work in the UK? Contact our team today.
What is Section 3C?
Section 3C of the Immigration Act 1971 is designed to prevent individuals from becoming overstayers while their immigration applications or appeals are pending. It automatically extends their existing immigration status if their leave to remain expires while they have an outstanding application for further leave to remain, including asylum claims. This is often referred to as ‘section 3C leave’.
When does Section 3C apply?
Section 3C is triggered when an application to extend leave is made before the current leave expires. This period of leave continues until:
- The individual leaves the UK
- The application is withdrawn
- The Home Office makes a decision
- No appeal or permission to appeal is sought within the required time limit
- An appeal is withdrawn, abandoned, or determined
- No administrative review is requested within the relevant time limit
- An administrative review is withdrawn or determined
What is Section 3C leave?
An individual will have Section 3C leave when all of the following statements apply:
- They submitted an application to the Home Office to extend their leave before their previous leave expired,
- their leave to remain has expired,
- and, they are waiting for an initial decision.
How long does Section 3C leave last?
Section 3C leave continues until a decision is made on the pending application or appeal. If the application is granted, Section 3C leave ends when the new leave begins. If the application is refused, Section 3C leave ends when the individual no longer has the right to appeal, or if they do appeal, when the appeal process is concluded.
Are asylum seekers allowed to work? Section 3C guidance
Most people who have claimed asylum in the UK are initially not allowed to work. It’s also important to note that Section 3C does not grant an automatic right to work for asylum seekers. Asylum seekers’ right to work is determined by other provisions within the immigration law, such as the Immigration Rules and the Immigration (Restrictions on Employment) Order 2007.
When an asylum seeker lodges a claim after entering the UK with a valid visa, their right to work is usually governed by the conditions attached to their original visa. If they had the right to work under their previous visa, that right generally continues under Section 3C leave. However, individual circumstances and the type of application made may introduce exceptions and specific conditions. Therefore, seeking legal advice is highly recommended to navigate the complexities of Section 3C leave right to work.
Are there any restrictions on the type of work you can do under Section 3C leave?
The type of work you can do under Section 3C leave depends on the conditions of your previous visa. If your previous visa allowed you to work, the same conditions typically apply. However, some restrictions may remain, and it’s essential to verify your specific work rights.
How can you check your right to work under Section 3C leave?
You can check your right to work by reviewing the conditions of your previous visa, consulting your Biometrics Residence Permit (BRP) and the eVisa using the Home Office online services. It’s important to note that BRPs will expire by 31 December 2024, so ensure you’re aware of your options moving forward.
How do you prove your Section 3C leave status to employers or authorities?
To prove your Section 3C leave status, you can provide your previous visa documentation and a letter from the Home Office confirming receipt of your pending application. Using the Home Office’s online service to view and prove your immigration status can also help.
Section 3C challenges and considerations
While Section 3C allows asylum seekers to maintain their lawful immigration status, they might face challenges when it comes to exercising their right to work. Employers may be unfamiliar with the intricacies of Section 3C and may have concerns about hiring individuals in this situation. This lack of understanding can create hurdles for asylum seekers seeking employment.
What to do if an employer refuses to hire you because they don’t understand your right to work under Section 3C
It’s crucial for asylum seekers to educate themselves about their rights and provide clear and accurate information to potential employers. If an employer is hesitant to hire you due to confusion about your right to work, provide them with official documentation and direct them to Home Office resources. Consulting with legal professionals specialising in immigration can be invaluable in navigating these complexities and ensuring their rights are protected.
Does Section 3C leave apply if an application is submitted after a visa has expired?
No, Section 3C leave only applies if the application for further leave to remain is submitted before the previous leave expires. Applications made after the visa expiry do not benefit from Section 3C, and the individual may become an overstayer, which will go on their immigration record and will affect them getting another visa.
Can you travel outside the UK while on Section 3C leave?
Travelling outside the UK while on Section 3C leave is not recommended, as Section 3C leave will lapse if you leave the UK or the Common Travel Area while your application is pending. This includes travel to Ireland, the Isle of Man, or the Channel Islands. Upon departure, the individual’s leave is considered to have ended, and they may face difficulties re-entering the UK.
It is advisable to consult an immigration expert, who can provide guidance and assist with any queries or complexities related to your situation.
What happens after a decision on an asylum application under Section 3C?
Once a decision is made on an asylum application, the individual’s immigration status and right to work will be determined accordingly. If the application is successful, the individual may be granted refugee status or some other form of leave to remain, which could provide them with enhanced work rights. If the application is unsuccessful, they may need to explore other legal avenues or consider returning to their country of origin.
Can 3C leave be cancelled?
Yes, in some circumstances, 3C leave may be cancelled where a person has either:
- Failed to comply with a condition attached to their leave
- Used or uses deception in seeking leave to remain (whether successfully or not)
If you have concerns about the potential cancellation of your Section 3C leave or need assistance understanding your rights, don’t hesitate to reach out to us for expert guidance.
How can I ensure that I secure Section 3C leave?
We’re frequently asked how to ensure you can secure Section 3C leave. However, Section 3C leave isn’t a separate application but a legal provision that automatically protects your status while the Home Office processes your visa extension application. We recommend seeking expert legal advice regarding your specific case and circumstances to ensure you’re fully informed and prepared.
To ensure you benefit from Section 3C leave and maintain your legal status in the UK:
- Submit your application before your visa expires: By submitting a valid application to extend your leave before your current visa expires, you automatically activate Section 3C leave. This provision prevents you from becoming an overstayer and ensures that your legal status in the UK is maintained during the processing of your application.
- Complete the relevant application forms: Ensure that all required application forms are completed accurately and provide supporting documentation (including biometric information, such as fingerprints or a photograph) as specified by the Home Office.
- Pay the application fee (if applicable): Some applications may require a fee. You can find out more information about this on the GOV.UK website.
- Await a decision: Once your application has been submitted and processed, you must now await a decision from the Home Office. Section 3C leave automatically extends your existing immigration status until a decision is made on your application.
- Seek legal advice (if needed): If you encounter difficulties or have any specific questions about your Section 3C leave application, consider seeking advice from qualified immigration solicitors to help you.
How we can help
Section 3C of the Immigration Act 1971 plays a crucial role in allowing asylum seekers who claim asylum after entering the UK with a valid visa to maintain their lawful immigration status.
While Section 3C does not automatically grant the right to work, it ensures individuals do not become overstayers while awaiting a decision on their asylum applications. Asylum seekers should proactively seek legal advice and rely on support organisations to navigate the complexities of their immigration status and exercise their right to work in the UK.
If you require legal support or Section 3C guidance regarding your right to work or settle in the UK, don’t hesitate to contact us. Alternatively, visit our immigration lawyers page to learn more about the support we can provide.