When is application considered valid to trigger section 3C ?

[azorpheunt]

My current situation : I shall be applying for a Tier 1 extension in December (my VISA expires on Jan 4, 2013).

The current wait time to get a decision for Postal applications is around 5-6 months (see this). I cannot apply before getting November's salary.

If I apply for an extension via post around December 10th, and it takes around 6 months for the decision to be made, what will be by immigration status in the meanwhile ? Will I be allowed to stay in the country and work ?

I have searched this forum for similar questions, and my research has revealed the following :

1. From here

1. INTRODUCTION
It is often not possible to decide an application for an extension of leave until after the period of leave has expired. To prevent applicants from becoming overstayers through no fault of their own, section 118 of the Nationality, Immigration and Asylum Act 2002 introduced an amended section 3C into the Immigration Act 1971. Section 3C automatically extends the leave of a person who has made an application for further leave to remain during a period of extant leave. Technically, the leave is "treated as continuing". To benefit, a person must have existing leave to enter or remain at the time when their valid application is made. Section 3C then prevents such an applicant becoming an overstayer during the period in which their application for a variation of leave remains undecided and, thereafter, while an appeal against any refusal could be brought or is pending. To prevent people becoming overstayers while exercising a right of appeal against a decision to curtail or to revoke leave to enter or remain, section 11 of the Immigration, Asylum and Nationality Act 2006 added a section 3D to the Immigration Act 1971. When leave to enter or remain is curtailed or revoked, section 3D extends it while an appeal could be brought or is pending.

2. From here

Frequently Asked Questions
What is my immigration status while my application is being decided?
If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay. You can continue to work until your case is decided if the conditions of your existing leave allows you to do so.

3. And finally http://www.immigrationboards.com/viewto ... 0fe377c08e


My Questions
1. Based on the above can I safely assume that I WILL be allowed to stay and work even if it takes me six months to hear back about my decision ?

2. The FAQ (#2 above) says that 'If you make an application'.
What is the date of my application from UKBA perspective for the section 3C ?
Is it the date that I post the application (as indicated here) ?

3. Even if I have posted my application in time, when and how do I know whether my application is valid ?
Please refer to this : http://www.immigrationboards.com/viewto ... 716#522716

It's complicated by the UKBA's distinction between valid and invalid applications. Section 3C is undermined if the UKBA declared an application as "invalid" (34C) after leave has expired. They seem to treat an "invalid" application to be as if there had been no application made. Therefore, Section 3C was never triggered. Hence, there's also no right of appeal.

4. My VISA expires on January 4th and I cannot send a postal application before 10th December. Is this enough time for the application to be considered 'made' and 'valid' ?


Thanks !!

[madhumesh]

My current situation : I shall be applying for a Tier 1 extension in December (my VISA expires on Jan 4, 2013).

The current wait time to get a decision for Postal applications is around 5-6 months (see this). I cannot apply before getting November's salary.

If I apply for an extension via post around December 10th, and it takes around 6 months for the decision to be made, what will be by immigration status in the meanwhile ? Will I be allowed to stay in the country and work ?

I have searched this forum for similar questions, and my research has revealed the following :

1. From here

1. INTRODUCTION
It is often not possible to decide an application for an extension of leave until after the period of leave has expired. To prevent applicants from becoming overstayers through no fault of their own, section 118 of the Nationality, Immigration and Asylum Act 2002 introduced an amended section 3C into the Immigration Act 1971. Section 3C automatically extends the leave of a person who has made an application for further leave to remain during a period of extant leave. Technically, the leave is "treated as continuing". To benefit, a person must have existing leave to enter or remain at the time when their valid application is made. Section 3C then prevents such an applicant becoming an overstayer during the period in which their application for a variation of leave remains undecided and, thereafter, while an appeal against any refusal could be brought or is pending. To prevent people becoming overstayers while exercising a right of appeal against a decision to curtail or to revoke leave to enter or remain, section 11 of the Immigration, Asylum and Nationality Act 2006 added a section 3D to the Immigration Act 1971. When leave to enter or remain is curtailed or revoked, section 3D extends it while an appeal could be brought or is pending.

2. From here

Frequently Asked Questions
What is my immigration status while my application is being decided?
If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay. You can continue to work until your case is decided if the conditions of your existing leave allows you to do so.

3. And finally http://www.immigrationboards.com/viewto ... 0fe377c08e


My Questions
1. Based on the above can I safely assume that I WILL be allowed to stay and work even if it takes me six months to hear back about my decision ?

Yes

2. The FAQ (#2 above) says that 'If you make an application'.
What is the date of my application from UKBA perspective for the section 3C ?
Is it the date that I post the application (as indicated here) ?

Yes

3. Even if I have posted my application in time, when and how do I know whether my application is valid ?
Please refer to this : http://www.immigrationboards.com/viewto ... 716#522716

It's complicated by the UKBA's distinction between valid and invalid applications. Section 3C is undermined if the UKBA declared an application as "invalid" (34C) after leave has expired. They seem to treat an "invalid" application to be as if there had been no application made. Therefore, Section 3C was never triggered. Hence, there's also no right of appeal.

It's not very consistent on part of UKBA but It is noticed here on forum, if it's Invalid they probably return application within 3-4 weeks. Most of time if acknowledgement is received, it is assumed application is valid

4. My VISA expires on January 4th and I cannot send a postal application before 10th December. Is this enough time for the application to be considered 'made' and 'valid' ?

See answer to question 3. If you thoroughly checked your application with right fee and photograph, it should be ok.


Thanks !!