Fleet House, 8-12 New Bridge Street, London EC4V 6AL

Tel: 0207 118 1666

UKVI able to remove immigrants even when judicial review is pending

The great disappointment for many of those involved in immigration law with regard to the Immigration Act 2014 was its devastating cutting of appeal rights, with the Government proudly declaring a reduction in appeal rights from 17 to three.

The headline news is that from now on, there will only be a right of appeal against a Home Office decision to refuse a protection or human rights claim, or to revoke a protection status – all other Home Office immigration decisions no longer attracting a right of appeal.

Although there is still the remedy in the latter situation of an administrative review and/or judicial review, even here, protections are not what they were. There is much focus here on sections 3C and 3D of the Immigration Act, with 3C and 3D leave serving the purpose of preventing an individual from becoming an overstayer in the UK through no fault of their own while awaiting or appealing an immigration decision.

If a person remains in the UK beyond the period of their leave, they become an overstayer, which is a criminal offence under section 24 of the Immigration Act 1971 – hence, the presence in the current Immigration Act of 3C and 3D leave. Section 3C was added to the Immigration Act 1971 by Section 118 of the Nationality, Immigration and Asylum Act 2002 to extend the leave of an applicant while they awaited a decision on an in-time application or exercised a right of appeal against the refusal of such an application.

Section 3D, meanwhile, was added to the Immigration Act 1971 by the Immigration, Asylum and Nationality Act 2006. This was to ensure that a migrant did not become an overstayer while they exercised a right of appeal against a decision to curtail or to revoke leave to enter or remain, where that decision would leave them with no leave.

Unfortunately, many of those dependent on 3C leave who we advise do not realise that it is still possible for UK Visas and Immigration (UKVI) to remove them from the country while a judicial review is pending, for the simple reason that this pending period is not covered by section 3C. With regard to variation decisions, section 3C can only keep recipients of such decisions lawfully in the UK while they seek, or could seek, an administrative review.

Talk to Farani Taylor today for appropriate advice relating to your own ongoing or prospective immigration appeal, so that you can take every opportunity to maximise your chances of a positive outcome in your dealings with UKVI.

Sign up to our Newsletter