Many people living in the UK apply to extend their visa or obtain Indefinite Leave to Remain (ILR) before their current permission expires. However, Home Office processing times can be lengthy, meaning their existing visas may expire before a decision is made.
We have noticed that this raises important questions, particularly for Turkish nationals living in the UK under the ECAA (Ankara Agreement) route.
Can someone legally remain in the UK while waiting for a decision after their visa has expired? Do their rights to live and work in the UK end immediately if their ILR or extension application is refused? Does requesting an Administrative Review protect their existing rights? More importantly, what happens to their immigration status if they submit a new ILR application while waiting for the outcome of an Administrative Review?
Section 3C automatically extends a person’s existing immigration permission when certain conditions are met. It allows them to remain legally in the UK while waiting for a Home Office decision.
Section 3C Leave is not a new type of visa. It is the continuation of an existing immigration permission under the law.
For Section 3C to apply, all three conditions must be met:
ECAA applications may be refused for various reasons, including concerns about business activities, income and expenditure records, whether the business is genuine, the applicant’s economic activities, or continuous residence requirements.
Following a refusal, one of the most important questions is whether the applicant can continue to stay legally in the UK.
If the applicant has the right to request an Administrative Review, Section 3C protection may continue during the period allowed for requesting a review and until a valid Administrative Review submitted on time has been completed.
Therefore, the refusal of an ECAA ILR application does not necessarily mean that the person immediately becomes an overstayer (someone staying in the UK without valid immigration permission).
The legal position is different in this situation. If an extension or ILR application is decided while the applicant’s existing visa is still valid, Section 3C protection will not have started.
Unless something else affects their permission, the applicant can remain legally in the UK until their existing ECAA visa expires.
For applications made inside the UK, the usual deadline for requesting an Administrative Review is 14 calendar days from the date the refusal decision is received.
If the applicant already has Section 3C protection and submits a valid Administrative Review within this period, their existing permission may continue until the review is completed.
However, there are two important points to understand.
First, an Administrative Review does not create a new immigration permission. Someone who did not already have Section 3C protection cannot automatically obtain it simply by requesting an Administrative Review.
Second, submitting another immigration application while an Administrative Review is pending can directly affect both the review process and the applicant’s Section 3C Leave.
This is particularly important for ECAA applicants whose extension applications have been refused and who are considering applying for ILR after completing five years of residence while their Administrative Review is still pending.
This issue requires careful consideration, especially for ECAA applicants who are close to completing five years of residence in the UK.
Someone whose ECAA Extension application has been refused may have requested an Administrative Review. While waiting for the outcome, they may complete five years of residence and meet the other requirements for ILR.
However, there is an important legal risk.
Submitting a new ILR application while an Administrative Review is pending may bring the applicant’s existing Section 3C Leave to an end.
It is important to distinguish between two situations.
If the original application has not yet been decided: The applicant may vary their existing application under Section 3C. An outstanding Extension application may be changed into an ILR application, provided the relevant procedural and validity requirements are met. In this situation, the original application date may be preserved for Section 3C purposes.
If the original application has been refused and an Administrative Review has started: There is no longer an outstanding application waiting for a decision. Therefore, a new ILR application cannot be treated as a variation in the same way. The effect of the new application on the Administrative Review and Section 3C Leave must be considered separately.
For this reason, anyone waiting for an Administrative Review following an ECAA Extension refusal should carefully assess their immigration status before submitting an ILR application.
Section 3C Leave may end in the following circumstances:
The Home Office may accept that the Immigration Rules were applied incorrectly or that the evidence was wrongly assessed when it refused an ECAA ILR or Extension application.
In this situation, the refusal decision may be withdrawn and the application reconsidered.
If the applicant still has Section 3C Leave, that permission will continue because the original application is once again awaiting a decision, rather than because the Administrative Review is still pending. The applicant can therefore keep their existing permission until a new decision is made.
If the Home Office maintains its original refusal following an Administrative Review, other legal options may be available depending on the applicant’s circumstances.
These may include challenging the Home Office through the Pre-Action Protocol (PAP) process or applying for Judicial Review.
However, there is a very important distinction.
Sending a PAP letter or applying for Judicial Review does not, by itself, extend Section 3C Leave.
If Section 3C protection has already ended following the final outcome of an Administrative Review, a later PAP or Judicial Review application does not automatically restore that permission.
Therefore, anyone considering PAP or Judicial Review following the refusal of an ECAA ILR application should also have their current immigration status carefully assessed.
My ILR application has been refused. Will I lose my legal status in the UK?
Not necessarily. If you already have Section 3C Leave and your Administrative Review is continuing in accordance with the rules, your immigration permission may remain valid.
Can I continue working while my Administrative Review is pending?
If your Section 3C Leave continues, the work conditions attached to your previous visa will generally continue as well.
Can I apply for ILR while waiting for an Administrative Review following an Extension refusal?
Although you may be able to submit a new application, doing so could bring your Administrative Review and existing Section 3C Leave to an end.
Can I travel outside the UK while my Administrative Review is pending?
Leaving the UK will end your Section 3C Leave. It may also result in your Administrative Review being treated as withdrawn.
Will a PAP application protect my immigration status if my Administrative Review is refused?
No. A PAP or Judicial Review application does not automatically extend Section 3C Leave.
Section 3C is an important legal provision that protects the immigration status of people who submit valid applications on time while they are in the UK.
However, for those whose ILR or Extension applications under the ECAA route have been refused, it is particularly important to understand when this protection begins and when it ends.
Submitting a new application during an Administrative Review, missing the review deadline, or leaving the UK can directly affect existing immigration and work rights.
For this reason, the next steps following an ECAA refusal should be considered not only in terms of the chances of success of a new application, but also in terms of their impact on the person’s current immigration status.
Legal disclaimer: This article is for general information only. Whether Section 3C applies depends on the person’s existing immigration permission, the validity of their applications, the dates on which decisions were served, and any available review rights. Each case should be assessed individually before any action is taken.
IAA Immigration Advisor
Meridien House
42 Upper Berkeley Street
W1H 5PW
London, England
+44 7739 699 968 (Mobile)
+44 20 3988 0575 (Landline)
contact@lexlegal.com
Lex Legal Limited is an international legal consultancy firm that located in the heart of London. Our areas of expertise and services include legal advice globally as well as immigration consultancy.
Our partner of legal professionals offer considered and comprehensive advice to make an informed decision. We resolve all complex immigration issues and Golden visa programs and work with clients from the initial stages throughout the process which could take up to three months.
Meridien House
42 Upper Berkeley Street
W1H 5PW
London, England
+44 7739 699 968 (Mobile)
+44 20 3988 0575 (Landline)
contact@lexlegal.com