The zombie law: 3C leave and long residence: Mark Smith

The “labyrinthine structure and idiosyncratic drafting” of the Immigration Rules (the Court of Appeal’s words, not mine), sometimes makes it difficult to divine the meaning and purpose of UK immigration laws. This is perhaps never more true than in the case of 3C leave. In the recent decisions of Akinola and Hoque, the Court of Appeal has been attempting to makes sense of the situation and what it means for 10-year long residence applications.

3C leave

As immigration practitioners will know, section 3C of the Immigration Act 1971 allows existing leave to continue whilst an application to vary that leave is either pending, subject to administrative review or appeal or, most recently, subject to an appeal under the EU Settlement Scheme. Effectively, it permits legitimate residents to stay in the UK whilst their application is determined. This reasonable concession can lead to significant periods of “3C leave” whilst the Home Office and the tribunals come to a final decision on the application.

Akinola & the Zombie Law

Prior to 2019, if a person’s application to vary their leave was refused and they failed to appeal within the appeal period, their section 3C leave came to end. However, in R (Ramshini) v SSHD, the Upper Tribunal interpreted section 3C as allowing leave to “revive” after an appeal allowed out of time. This zombie-like resurrection has since been adopted in the Home Office guidance.

The recent Court of Appeal case of Akinola v SSHD considered the details of this new interpretation of section 3C. The court concluded that the 3C leave finishes at the end of the appeal period but only revives from the date the appeal is lodged. This means that there is still a period of overstay in Akinola-type cases where an appeal is lodged out of time.

The court referred to 3C revival as having ‘future effect’ as opposed to ‘retroactive effect’. But somewhat confusingly, as a person will only find out that their 3C leave has revived when they are granted permission to appeal out of time, the revival does in fact take effect retroactively for the (hopefully short) period between the lodging and grant of permission to appeal. This period is initially considered overstay but is subsequently ‘rendered lawful’ when permission to appeal is granted. As overstayers, appellants will therefore initially be exposed to criminal liability and detention pending removal, and prevented from working, only to later find they were not overstayers after all!

The decision in Akinola represents something of half-way house: 3C revives back to the appeal being lodged but not all the way back to end of the appeal period. This does seem a bizarre outcome as it leaves Akinola-type appellants with a potentially problematic period of overstay and yet also fails to dodge the worst conceptual difficulties of retroactive effect that the court had seemed anxious to avoid.

Hoque & Long Residence

The potential issues with the decision in Akinola may become even more evident in the context of 10-year long residence applications. The law on long residence was recently considered in Hoque v SSHD, where the Court of Appeal overturned the previous decision in Masum Ahmed and concluded that ‘book-ended’ periods of overstay (i.e. where there is a period of leave before and after) can be disregarded when considering long residence applications.

The precise extent to which such periods can be ignored was not fully explored, partly as none of the appellants in Hoque actually had book-ended periods of leave on the facts. The early signs suggest the decision will be interpreted widely as, following Hoque, the Upper Tribunal disregarded a period of 507 days in the case of Asif v SSHD.

But what about an Akinola-type overstay where an appeal is lodged out of time? The interaction between the ‘zombie law’ and ‘book-ended’ overstay has yet to be fully considered. The result is difficult to predict but will no doubt give the court further cause to comment on the challenges of interpreting legislation that is “far from clear” (Akinola) and rules that have resulted in much “confusion and uncertainty” (Hoque).

Mark Smith is a barrister specialising in extradition, international family and immigration matters. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions.  He is a key member of the 5SAH immigration team with experience encompassing Tier 1 and business visa applications, derivative rights applications under Appendix FM, the EU Settlement Scheme, and asylum proceedings. Mark is currently instructed in immigration proceedings following an Indian extradition request, and in an extradition matter with parallel family proceedings.