Out of Time Appeals and the evolution of Section 3C Leave of the Immigration Act 1971(as amended)
Md Tariq Bin Aziz
5 September 2021
Where an appeal is made ‘out of time’ it does not extend section 3C leave. However, if the Tribunal grants permission for the appeal to proceed, 3C leave will run from when the notice of ‘out of time’ appeal was filed to the First-tier Tribunal (IAC). For example, an appeal was lodged on 7 August, 13 days ‘out of time’. The person remains without 3C leave. On 2 September the First-Tier Tribunal gives permission for the appeal to proceed, the person has 3C leave from 7 August.
The purpose of s.3C leave is to protect the immigration status of those with existing leave pending the determination of a variation application or appeal in respect of that decision. In so far as it protects an applicant’s immigration status and prevents the applicant becoming an overstayer, section 3C also has an important role to play in the accumulation of the 10 years continuous lawful residence in the UK for the grant of indefinite leave to remain.
The position under section 3C where an application has been made for variation of existing leave, the application has been refused by a decision of the Secretary of State, and subsequently (i) there is an out-of-time appeal for which an extension of time is granted and (ii) a withdrawal and/or reconsideration of a refusal decision were grappled by the Court of Appeal in Akinola & Anor v Upper Tribunal & Anor  EWCA Civ 1308.
The principal question in dispute was whether leave revived with future effect or retroactively, so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b). In Akinola, the Court of Appeal confirmed that when an extension of time is granted, it renders the notice of appeal effective from the date when it was filed, so that the appeal proceedings are instituted at that date rather than at the date when the decision to extend time is made or written notice of it is provided to the parties.
Sir Stephen Richards found in favour of Akinola,
- Accordingly, the UT in Ramshini was in my judgment wrong to rely on Erdogan on this issue and wrong to reach the conclusion it did on the issue. In my judgment, for the reasons given above, where an extension of time is granted for an appeal out of time, the date when the appeal is instituted and becomes a pending appeal within section 3C(2)(c) is the date when the notice of appeal was filed, not the date when the extension of time was granted. That involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed. In this case, however, it seems to me to be the clear result of the relevant legislative provisions.
Conclusion: 3C leave revive retrospectively in an ‘out of time’ appeal where permission is granted from the point of institution of notice of appeal.
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