Section 3c leave case win! 

Legal Updates

This post was updated on 24th July 2024 to include an update from RAMFEL about what to do if you are affected by this ruling.

The charity RAMFEL (Refugee and Migrant Forum Essex and London) have recently won a landmark judicial review on the policy of Section 3c leave. In this legal challenge, the court found that the Home Office is currently acting unlawfully in its failure to provide proof of status to many thousands of migrants.

This blog explains what this case is about and why it is so important.

What is Section 3c leave? 

Section 3c leave is an automatic form of immigration status which applies to a person once they have made an in-time application to extend their visa, or submitted an in-time application for a fee waiver. 

Section 3c leave is designed to ensure that a person’s rights and entitlements will continue to apply under the same conditions as their previous grant of leave. You are not formally ‘granted’ Section 3c leave, but it can be triggered by making an in-time application. 

It is called Section 3c leave as it is found in the 1971 Immigration Act.

What is the problem with Section 3c leave? 

Because of the hostile environment – and the web of barriers that migrants face in accessing vital services in the UK, Section 3c leave creates problems for people in proving their immigration status. 

For people with Section 3c leave, proving that you have the right to work, rent or access other services can be extremely difficult. In their 2022 report on the hostile environment, RAMFEL found that around 40,000 people a year were at risk of being suspended from working or denied work because of problems proving their Section 3c leave. 

This is because if you have Section 3c leave, you cannot use the Home Office generated ‘Share Code’ to prove your right to work. You have to rely on using the Employer Checking Service. Mistakes are often made with this process, and often employers are not willing to use the Employer Checking Service.

Similar processes take place when landlords carry out right to rent checks, as well as NHS charging, driving licenses and bank accounts. 

What was this case about? 

This case was brought forward by the charity RAMFEL and Ms Adjei, a former RAMFEL client. RAMFEL and Ms Adjei were represented by Bhatt Murphy Solicitors. 

Ms Adjei had limited leave to remain on the 10 year route to settlement. During this time, she was on Section 3c leave for almost 1 year. At this time, she was told by her employer that her right to work had expired. This meant her wages were stopped and her family were forced to access food banks and borrow money. 

The Home Office did not provide Ms Adjei with any evidence of her Section 3c leave. RAMFEL argued that this was a failure of the Home Office’s legal obligations.

Ms Adjei’s case is typical of many people on the 10 year route – people on this route to settlement will be on Section 3c leave 3-4 times.

What did the court decide?

The court agreed it was clear large numbers had faced ‘real hardship through being unable to provide immediate documentary proof of their immigration status’. 

It found that the failure to prove digital proof of status to people on Section 3c leave was unlawful, and that the Home Secretary must provide digital proof to people on Section 3c leave.

The court also ruled that the Home Secretary had breached his duty under Section 55 of the Borders, Citizenship, Immigration Act 2009 by failing to consider the impact on children. 

You can read the entire judgment here, and see this helpful write up from Free Movement here

What is next? 

As a result of this case, the Home Office will have to update its policy around Section 3c leave. The court ordered that the Home Secretary must now take steps to ‘provide all those on Section 3c leave with a means of proving their status’.

This is recognition of the struggles that so many migrants experience proving their immigration status while on Section 3c leave.

As we have explained in a previous blog, the Home Office is preparing to make the shift to e-visas at the end of this year. Due to this case, the Home Office will now also have to include those on Section 3c leave in its move to a digital system. 

What does this mean for you?

If you have Section 3c leave you will be affected by this ruling.

As a result of this ruling, a person can ask for digital proof of their Section 3c leave from the Home Office.

You can do this by either:

  1. Writing a letter that is submitted to the Home Office with your fee waiver or immigration application.
  2. If you have already made your application, you can write to the team in the Home Office which is processing your application using this template letter.

For more information on what to do if you are affected by this judgement, read this update here.

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