What is Section 3C Leave?
A guide for UK employers on Section 3C of the Immigration Act 1971
If you are a UK employer there is an ongoing need to ensure that you are complying with the latest employment and immigration rules to protect your business.
Immigration and employment law is a minefield, especially when your HR team or key personnel are coming across immigration terms that they are not familiar with and when they are unsure if continuing to employ a worker places the business at risk of a civil penalty because the employee may no longer have the right to work in the UK. Alternatively, they may be concerned that if they inappropriately terminate the worker’s employment contract the employee may have a claim.
In this article, our Immigration Solicitors provide a guide to the meaning of Section 3C leave for UK employers.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.
When do you come across Section 3C leave?
Your HR staff may come across Section 3C leave in a wide variety of circumstances. For example:
- A job applicant on Section 3C leave
- An existing employee on a Skilled Worker Visa holder or Health and Care Worker Visa holder on Section 3C leave as they are applying to extend their Work Visa
- A Graduate Visa holder who is in the process of switching to a Skilled Worker Visa
- A Spouse Visa holder who is applying to extend their Family Visa
These are just a few of the times when key personnel, HR staff or recruiters may come across the phrase Section 3C leave.
What does Section 3C leave mean?
Section 3C leave comes from Section 3C of the Immigration Act 1971. At its simplest, Section 3C stops someone who would overwise be an overstayer from being an overstayer.
If a job applicant or an employee is an overstayer they no longer have the right to work in the UK. Therefore, an employer risks civil penalties if they continue to employ an overstayer even if the person has been a loyal employee for several years.
If the overstayer is not a sponsored employee (for example, they came into the UK on a Spouse Visa and were employed without sponsorship but their Family Visa has now expired) the business still risks losing its sponsor licence if it employs someone who no longer has the right to work in the UK. If a worker is fired because there is a fear that the sponsor licence could be revoked or the company could end up paying a massive civil penalty fine, and the concern is unfounded, the employee could have a grievance or a potential employment tribunal claim.
It is therefore critical to have HR records showing:
- Right-to-work checks have been completed on all staff – whatever their nationality or immigration status
- Right-to-work checks have been renewed on any employee with limited leave to remain
HR staff and key personnel then need to know how to treat employees who are not overstayers but who equally don’t yet have a new Work Visa or Family Visa or other visa giving them a right to work in the UK.
Section 3C of the Immigration Act 1971
Section 3C of the Immigration Act 1971 gives continuation of leave pending variation decision. You will come across Section 3C leave where a visa holder has applied to switch visas or extend their visa before their current entry clearance expires but the Home Office has not decided the new application before the expiry of the employee’s visa.
Section 3C places the worker in authorised ‘legal limbo’ and means they should not be treated by their employer or landlord as an overstayer until the Home Office decides their application. If the visa is granted Section 3C leave ends as the worker has immigration status. If the application is refused (and there is no administrative review or appeal) Section 3C leave ends and the worker becomes an overstayer in the eyes of the Home Office. Section 3C leave will also end if the visa holder withdraws their visa application.
Section 3C leave continues where an employee has had an in-time visa application refused but has:
- Applied for an administrative review of the Home Office's decision to refuse a visa application
- Appealed against the refusal of a visa application
Section 3C leave gives the worker protection from being classed by the Home Office as an overstayer until their administrative review or appeal is completed.
Employees working with Section 3C leave
If an employee has obtained Section 3C status because they have made an in-time visa application or appeal they can normally continue to work if their original visa allowed them to do so.
If the worker’s visa imposed employment conditions (such as part-time hours on a Student Visa or sponsored employment on a Skilled Worker Visa or Health and Care Worker Visa) then they will be subject to the same work-related conditions. In rare cases work conditions are made with the Section 3C leave so it is worth double checking that the employee still has the right to work that fits in with your employment of them.
It is also worth remembering that the continued right to work only lasts for as long as the Section 3C leave. Another right-to-work check should then be completed once their new visa has been granted. Importantly, another right-to-work check needs to be put in the diary for when the next visa is due to expire.
Immigration Law Training
If you do not use Sponsorship Licence Lawyers to provide your business with a Sponsor Licence Management Service it can be helpful to ensure that your key personnel receives regular Immigration Law Training so they can keep up to date with changes in immigration rules and reduce the risk of sponsor licence non-compliance inadvertently leading to an audit by Home Office officials.
Our Business Immigration Solicitors understand the need for flexible Legal Training delivered at a time and in a format that suits your business and its specific needs. We can provide Immigration Law Training at your premises or online, through Zoom or webinar. The training can be adapted to meet your requirements, such as looking at how you conduct right-to-work checks or how to get acceptable evidence of Section 3C leave.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For sponsor licence and immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.
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