Confused re. section 3c,3d of Immigration Act.Please advice

[RAJ2007]

My friend has applied for student visa extension (before his visa expired) and now her visa has expired. His application is still with HO. He has now received her result and and would like to apply for PSW. Now the question is that is he allowed to make another fresh application (PSW) now . If not what he should do?

In the PSW application form, the following is mentioned (Q. D 29)that If the leave has expired, the applicant is not able to submit a further fresh application. However, they can, if they wish, vary the grounds of the existing application.

I have checked “CHAPTER 1 SECTION 5, SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971 (AS AMENDED), not very clear to me. It says “

3.2. Applications lodged during leave under sections 3C and 3D
While either section 3C or 3D leave is in force, the applicant is not entitled to make
any more applications for variation of leave to enter or remain. So even someone
who marries after making an application to remain as a student cannot, while they
have leave under section 3C, make a fresh application on the basis of the marriage.
On the other hand, it is possible to vary the grounds of an application already made,
even by introducing something completely new. A student application can be varied
so as to include marriage grounds. If an application is varied before a decision is
made, the applicant will be required to complete the necessary prescribed form to
vary his application.
What is this necessary prescribed form. Please advice what he should do now.

[RAJ2007]

i expected one of the senior member or the moderator would be able to advice me.

Please someone could clarify my query.

[vinny]

I'm guessing that the prescribed form is the specified form relevant to the application. To vary an application would imply using the same type of form that had been submitted. To make a fresh application would imply using a different form. Does that make sense?

[RAJ2007]

Vinny,

Thanks.

That means in this case he could submit PSW (with all relevant documnets) with a covering letter asking HO to vary the application since intial application was student visa extension and has not been decided yet.

therefore it will not be considered as a fresh application

(note: it is mentioned that application to be made in the specified form, therefore he can't vary the applcation asking for psw visa with another student visa application form)

am i right?

[ben_scaro]

IDI Feb/08 CH1A SECT 1 – SPECIFIED APPLICATION FORMS AND PROCEDURES 27/02/2008 Feb/08 IMMIGRATION DIRECTORATES' INSTRUCTIONS




5. VARYING AN APPLICATION FOR LEAVE TO REMAIN

5.1 An applicant may vary an application at any time before it is decided. If it is varied to a purpose for which a different application form is specified, that form must be completed and all other relevant requirements of paragraph 34A must be complied with in order for the variation to be valid. In effect a valid variation will look like a fresh application; caseworkers should check CID to see whether an earlier application exists, in order to establish whether the specified form submitted is a variation of an existing application.

[RAJ2007]

ben_scaro,

I have seen the rule on variation of leave. However if someone is under Sec3c leave (mentioned above) then it is bit confusing,

Has anyone been in this situation please advise.

[vinny]

See also AIT on varying an application that is before the Home Office and DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043.

[RAJ2007]

Thanks Vinny.
As you can see it is still not clear whether one can vary an application under Sec 3c.

Vinny - Could you please tell me if someone on student waiting for the outcome of the examination, applies to HO for student visa extension, then would HO give him student visa extension or student visitor visa extension?

[vinny]

Update -

More importantly, the Court of Appeal in JH (Zimbabwe) [2009] EWCA Civ 78 made a very important (but how so dry!) decision on use of prescribed forms and the extension of leave by s.3C of the 1971 Act. The tribunal's highly restrictive interpretation in DA (Section 3C meaning and effect) Ghana [2007] UKAIT 00043 is disavowed and the Court concludes that:

(i) the appellant had used a 'prescribed' form, even if she had no chance of getting what she asked for, and therefore had made a valid application which therefore extended her leave under s.3C while the application was pending, and

(ii) that it is possible to vary an application for leave once it is made, even if leave is already extended by s.3C, as long as a decision has not yet been reached by the Home Office.

This case makes life considerably simpler for immigration applicants who are badly advised or use the wrong form.

See also Applications > Specified application forms and procedures > Varying an application.

Bajracharya, R (on the application of) v Secretary of State for the Home Department (para. 34 - variation - validity) [2019] UKUT 417 (IAC) (20 November 2019)

What rules does a Tier 4 student need to meet if college loses licence? > Secretary of State for the Home Department v Khan [2016] EWCA Civ 137 (08 March 2016)

(related -
Invalid applications (34C)
QI (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 614 (18 April 2011) > 12
Date of decision pre-section 19
Qureshi (Tier 4 - effect of variation - App C) Pakistan [2011] UKUT 412 (IAC) (21 November 2011)
Raju overturns Khatel.

Another secret policy
Bhgat, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 772 (Admin) (04 March 2014)

Can you make a new application while awaiting outcome of another application or appeal? > Rashid, R (on the application of) v Secretary of State for the Home Department (IJR) [2015] UKUT 190 (IAC) (2 April 2015)

[doc44]

My friend has applied for student visa extension (before his visa expired) and now her visa has expired. His application is still with HO. He has now received her result and and would like to apply for PSW. Now the question is that is he allowed to make another fresh application (PSW) now . If not what he should do?

In the PSW application form, the following is mentioned (Q. D 29)that If the leave has expired, the applicant is not able to submit a further fresh application. However, they can, if they wish, vary the grounds of the existing application.

I have checked “CHAPTER 1 SECTION 5, SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971 (AS AMENDED), not very clear to me. It says “

3.2. Applications lodged during leave under sections 3C and 3D
While either section 3C or 3D leave is in force, the applicant is not entitled to make
any more applications for variation of leave to enter or remain. So even someone
who marries after making an application to remain as a student cannot, while they
have leave under section 3C, make a fresh application on the basis of the marriage.
On the other hand, it is possible to vary the grounds of an application already made,
even by introducing something completely new. A student application can be varied
so as to include marriage grounds. If an application is varied before a decision is
made, the applicant will be required to complete the necessary prescribed form to
vary his application.
What is this necessary prescribed form. Please advice what he should do now.

Hi Raj,

I am in a similar situation, just want to check if you friends application was successful when he varied his existing application on PSW grounds?
Did he fill the PSW form with covering letter indicating that it is a request to vary the grounds of already made application?
Does he need to contact the UKBA team handling his initial application before?
Lastly at what address he sent the new form, same address on the form or any other specific address? Thanks.

Regards.

[Obie]

Vinny's second advice is very sound. DA can no longer be followed by courts and tribunal, as far as it states an application cannot be varied by means of making a totally different application.

Provided a decision has not yet been made and a person is still covered by Section 3c, a new application can be made, and it will be considered as variation of the previous.

[doc44]

Vinny's second advice is very sound. DA can no longer be followed by courts and tribunal, as far as it states an application cannot be varied by means of making a totally different application.

Provided a decision has not yet been made and a person is stilled covered by Section 3c, a new application can be made, and it will be considered as variation of the previous.

Hi Obie,

Many thanks. Another thing to make clear. S 3c says application could be varied before the decision is made on the initial application.
Date of decision is when applicant received a refusal or acceptance letter from the home office? or it is the date when visa officer decides the application even if applicant is informed 10 days after making that decision?
Which one is taken as date of decision.
My application reaced home office on monday and my company received the license on tuesday and I requested to vary the application today so I think I will be safe?

Regards,

[Greenie]

Vinny's second advice is very sound. DA can no longer be followed by courts and tribunal, as far as it states an application cannot be varied by means of making a totally different application.

Provided a decision has not yet been made and a person is stilled covered by Section 3c, a new application can be made, and it will be considered as variation of the previous.

Hi Obie,

Many thanks. Another thing to make clear. S 3c says application could be varied before the decision is made on the initial application.
Date of decision is when applicant received a refusal or acceptance letter from the home office? or it is the date when visa officer decides the application even if applicant is informed 10 days after making that decision?
Which one is taken as date of decision.
My application reaced home office on monday and my company received the license on tuesday and I requested to vary the application today so I think I will be safe?

Regards,

the date of the decision is the date the decision is made - not the date you receive it.

[Obie]

For the purpose of appeal, the date your received the application is relevant, however i agree that in the context of section 3c right, the date the actual decision was made as opposed to received will be relevant.

[doc44]

See also AIT on varying an application that is before the Home Office and DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043.

Hi Vinny,

need an urgent advice if you could help.

1) as talked before. I made an FLR (O) application on the 10th feb 2012. I requested to vary this FLR (O) application on the 16th feb 2012 on tier 2 grounds before the decision was made on FLR (O) application.

Home office has charged me £550 on the 14th feb and £550 again on the 20th feb today.

Acc to modernised guidance for case workers (cross cutting information-applications) if applicant vary the application before decision is made on his application then no fee will be charged unless varying application fee is more than the initial application fee and the difference will be only charged.

Do you know if my £550 pounds charged by home office will be refunded because it should not be charged by the rules or it is normaal that they charge the full fee when application is varied? I clearly mentioned on the covering letter and at number of other places in the application that I am varying my already made flr (o) application. Any idea what will happen now?should I call home office? Your advice will be appreciated. thanks.

[vinny]

Did you apply for Tier 2 (General)? Are you sure that you used the correct form?

Did you make it clear that the subsequent submission was a variation of the initial application? Ask for a reimbursement, perhaps after a decision.

[doc44]

Did you apply for Tier 2 (General)? Are you sure that you used the correct form?

Did you make it clear that the subsequent submission was a variation of the initial application? Ask for a reimbursement, perhaps after a decision.

Ya I made it very clear at number of occasions including covering letter with main heading. That I am varying the grounds of already made Flr o application. Used the latest updated form for tier 2 category. I hope after repeating so many time ukba still might not consider it a fresh application. That would be very unlucky.

[doc44]

Did you apply for Tier 2 (General)? Are you sure that you used the correct form?

Did you make it clear that the subsequent submission was a variation of the initial application? Ask for a reimbursement, perhaps after a decision.

One question if you don't mind.

when I submitted a request to vary the grounds of already made FLR (O) application on tier 2 grounds. At that time, I had not received acknowledgement letter for FLR (O) application. But money was debited and was appearing on my bank statement.

I called an immigration lawyer to ask if i should wait for the acknowledgement letter and then vary the grounds or not. I was told that don't wait and submit the request to vary the grounds with tier 2 form asap as HO has my passports and my other details already in their system.

So I mentioned all details including when, how much, from which account, from which card money was taken including passport details in the covering letter and in the form. But not the reference letter because I had not received one.

Just need your opinion will it be OK. or could cause a problem. Should I wait for the acknowledgement letter and reference no? just need your opinion. Many Thanks.

[fembiz]

doc44

Did the UKBA agree to vary your application from FLR(O) to tier 2? I am in a similar situation and wanted to know if you were successful or not.

[boldboy88]

My PSW expired in Feb 2013 and I applied for Tier 1 (Entrepreneur) in Nov 2012. My Tier 1 (Entrenreneur) is still in process.
Can I Vary my Application to Tier 2?
What form do I need to fill in? URGENT PLEASE HELP!!

Any suggestions will be highly appreciated, thanks a lot.

[vinny]

Yes. You may vary an undecided in-time valid application.

[boldboy88]

Vinny,
Thanks a lot. What form do I need to fill in to Vary my Tier 1 Entrepreneur to Tier 2?
I want to submit as soon as I get the sponsorship certificate.

[vinny]

The normal form.

[boldboy88]

Can I Vary to Tier 2 Priority Application from Tier 1 Entrepreneur?

Thanks a lot.

[geriatrix]

Can I Vary to Tier 2 Priority Application from Tier 1 Entrepreneur?

Thanks a lot.

What is "Tier 2 Priority" application?