Check on visa refusal and section 3C protection

I refer to my previous post a few years ago. As it was locked already I am creating this new post for a follow up question.

uk-tier-1-entrepreneur-visas/t1e-visa-e ... l#p1666456

In that post I asked, in case of visa renewal refusal, the applicant's situation to stay (based on the original visa has expired or not).

There was advice about section 3C protection - if a refusal is followed by AR, the applicant is still protected and not regarded as overstayer (even if the original visa has expired).

But there was also advice "section 3C protection will NOT be engaged if the application is refused BEFORE visa expiry. If you get refused before your visa expiry, you will get no valid stay beyond your visa expiry".

I am a bit confused and would like to clarify this point.

Case 1.

Original visa expiry: 10May2021
Refusal: 15May2021

My understanding - if AR is filed within 14 days of above refusal date, applicant is protected by section 3C.

Case 2

Original visa expiry: 10May2021
Refusal: 5May2021

The refusal is before visa expiry. Would the application still be protected by section 3C with AR filed within 14 days of refusal date?


Thanks for your advice.

No. AR on its own can NOT lead to Section 3C leave. If your visa application is refused when you still hold a valid visa, section 3C does NOT come into force at all. Applying for AR simply can extend an existing section 3C leave. If you never had leave under section 3C to begin with, an AR will not lead to anything. So your lawful residence ends on your visa expiry date without any section 3C going forward, even if you file for AR

The section 3C guide is clear on this:

If a person does not already have section 3C leave, the fact that they are entitled to seek administrative review of a refusal decision does not give them section 3C leave, even if that administrative review is sought in-time.

https://assets.publishing.service.gov.u ... 0.0ext.pdf

Zimba, thanks for your reply.

Now I am on T1E visa to be expired in Jul2021.

I have applied for ILR. I hope it will go ok. At the same time I am looking at what I should do, if unfortunately the ILR application got any problem.

I am eligible to apply for another visa to stay in the UK (in my case it is the Hong Kong BNO visa).

In case the ILR application was rejected, could I make new application of another visa (say within 14 days), and keep the previous staying period still counted?

I am also concerned, if the ILR application refusal came close to or after the current visa expiry date, would the applicant be treated as overstayer (and have undesirable impact to the applicant's immigration record)?

Thanks.

You can apply for BNO as usual. If you apply before the visa expiry, it will be in-time. If you apply after visa expiry or under Section 3C, you can do it within 14 days. I suggest not make assumptions until you get a response from UKVI regarding your ILR

Zimba thanks for your update.

Yes I should wait for response on the ILR application.

If the ILR was refused and it was after the visa expiry date already, it could still apply for another BNO visa within 14 days. The new visa, if approved, would allow settlement on 5-year stay.

I would like to double check, in this case the previous staying (with the T1E visa) could still be counted to make the continuous 5-year period, making it eligible for the settlement right?

The guideline on BNO visa says time spent on T1E visa can also be counted towards the 5 years. But I am not sure in the above situation the staying period of T1E and BNO visa could be counted as continue (as the T1E visa was expired already). Hence I would like to check on the situation and have better preparation accordingly.

Thanks.

Yes it is perfectly fine to apply to BNO after a potential refusal within 14 days. The fact that ILR is refused is irrelevant. Paragraph 39E applies and the period of overstaying between the two leaves will be disregarded

Dear Zimba,

Thanks for the reply. So I take that if the application was made within 14 days following the refusal, the staying period can be treated as continue.

May I check in such case, would the following still be eligible for the applicant and dependents:

• free NHS
  right of work
  state school education

As (strictly speaking) the condition would become overstay (but treated as exception under 39E), the above entitlement could be affected?

No You will NOT be eligible (without a valid visa or section 3C) as you will be an overstayer in that period until granted a new visa. Paragraph 39E does NOT grant you lawful residence, it simply allows an overstaying period between the lawful periods to be disregarded for grant of ILR