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Home Office Failure to Provide Digital Proof of Section 3C Leave Ruled Unlawful

high court rules lack of section 3c leave digital status

IN THIS SECTION

In R (Refugee and Migrant Forum of Essex and London (RAMFEL) & Anor) v Secretary of State for the Home Department, the High Court determined that the Home Office has been acting unlawfully by failing to provide proof of status to thousands of migrants.

 

The legal challenge was brought by the charity RAMFEL (Refugee and Migrant Forum Essex and London), and marks a landmark victory regarding the policy of Section 3C leave and the problems facing those with Section 3C leave.

 

What is Section 3C leave?

 

Section 3c leave is an automatic immigration status that applies to individuals who have submitted an in-time application to extend their visa or for a fee waiver. With this status, the individual’s rights and entitlements continue under the same conditions as their previous grant of leave. Section 3c leave is not formally granted but is triggered by making an in-time application. It is named after its inclusion in the 1971 Immigration Act.

 

Issues facing those with Section 3C leave

 

Individuals with Section 3C leave often struggle to demonstrate their right to work, rent, or access other services, potentially placing them at risk of being suspended from work or denied employment.

The issue arises because individuals with Section 3C leave cannot use a Home Office-generated share code to prove their right to work and must rely on the Employer Checking Service, which is prone to errors and generally under-used by employers and those carrying out status checks, such as right to rent checks, NHS charging, driving licences, and bank accounts.

In reality, the lack of documentation for those with 3C leave commonly leads to hardship since the immigration system necessitates proper documentation for individuals to access their rights and entitlements.

 

Background to the Case

 

The case was brought by RAMFEL and Ms. Adjei, who was a former client of the charity. Ms. Adjei worked at Whittington Hospital as a healthcare support worker. She held limited leave to remain on the 10-year route to settlement, based on being the parent of a British child. She was on Section 3C leave for nearly a year, during which her employer informed her that her right to work had expired, leading to her wages being stopped, and forcing her family to rely on food banks and borrowed money. RAMFEL were able to intervene, recommending that Ms Adjei’s employer conduct a check using the Home Office Employer Checking Service.

 

High Court Decision

 

The High Court ruled that the Home Office’s failure to provide digital proof of status to individuals on Section 3C leave was unlawful, irrational and unreasonable, and mandated that the Home Secretary must provide such digital proof to those holding status under Section 3C.

The Court acknowledged that a significant number of individuals had faced severe hardships due to the inability to provide immediate documentary proof of their immigration status. It emphasised that the purpose of Section 3C is to ensure that individuals lawfully present in the UK can continue to work and rent, among other entitlements, while awaiting a decision from the Home Office. Without documentary evidence of their status, individuals on section 3C leave, along with any dependants, including children, would experience significant hardship. On this point, the Court also found that the Home Secretary had breached the duty under Section 55 of the Borders, Citizenship, and Immigration Act 2009 by not considering the impact on children.

 

Impact of the Decision

 

In light of the ruling, the Home Office must update its policy on Section 3C leave, ensuring that all those affected have a means of proving their status. As such, the case represents a significant step in addressing the challenges faced by migrants under Section 3C leave and ensuring their rights are upheld.

The Court has asked the parties involved to agree on what reasonable measures can be implemented and within what timeframe, and to determine whether a mandatory order should be issued to ensure the Secretary of State complies with this agreement.

It is expected that the solution will be the provision of a digital status, similar to the Certificate of Application issued under the EU Settlement Scheme. However, as the Home Office is currently undergoing the transition to eVisas, incorporating individuals on Section 3C leave in this move to a digital system could pose a significant challenge for the Home Office, not least since the roll out of the eVisa system in itself is proving problematic, due to issues such as technical errors, poor public awareness, lack of provision for vulnerable migrants – all exacerbated by the absence of a transitional phase after 31 December 2024.

Finally, for visa holders, the introduction of documentation for 3C leave should not encourage complacency about visa expiry dates. It is important to remember that if an application is refused while an individual is on Section 3C leave, the extension of their previous visa conditions under Section 3C becomes invalid, and they may become an overstayer. Therefore, it is still preferable to submit applications as early as possible, aiming for a decision before the visa expiry date.

 

Need Assistance?

 

If you are concerned about the implications of the decision on your organisation’s right to work procedures and policies, of on your personal immigration status in the UK, speak to our immigration compliance experts.

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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