Fee Waiver Applications and Section 3C Leave: Risks You Need to Know

Fee waiver – section 3C leave – buying time

With certain types of immigration application a “fee waiver” application is possible, ie an application to be excused from paying the visa application fees because the applicant cannot afford them. But this scheme is only applicable to family visas, human rights character visas, and a few others. It does not generally apply to working visas or study visas, ie points-based system applications. 

A fee waiver application is possible from either outside and within the UK. If the application is made in the UK the fee waiver application must be made before the substantive visa application is made, and it must be made before the applicant’s current leave expires. 

If this duly occurs then the applicant’s leave is preserved and protected and they do not become an overstayer when their visa expires and the fee waiver application is still being processed – which can take some time. The legal mechanism by which this occurs is called “section 3C leave”. This, you might like to know, is part of the Immigration Act 1971. The way that this works is that the applicant’s leave is protected for as long as necessary whilst the fee waiver application is being processed.

When eventually the fee waiver application is processed the decision will be either positive or negative. If it is negative this is unfortunate; if it is positive then the applicant should submit the substantive application within the deadline and they will not have to pay the fees – or in some cases they will only have to pay part of the fees. 

Well, so far so good; it looks fairly straightforward. But the complexity comes here. Some people came to realise (or in some cases they were thus advised) that they could prevent themselves from becoming an overstayer by submitting a fee waiver application, even if they did not want or need a fee waiver and in that way “buy time”. If you think this sounds dodgy you may be right: the Home Office says that this is an abuse of the scheme. 

Anyway, the argument goes like this: a migrant holds Visa A and they want to apply for Visa B but they are not yet able to apply for Visa B because they are waiting for something to happen or some condition to be fulfilled. But their current visa will expire soon and for obvious reasons they do not want to become an overstayer, otherwise they will not be able to apply for anything. 

So what they do is apply for a fee waiver, which will protect their leave for the time being, and hope that they will be able to apply for Visa B soon before the fee waiver application is processed. And so they will not be overstayer and they can then safely apply for Visa B.

But does this actually work? We think not. An important point about this is that when the applicant applies for a fee waiver they must state which kind of leave they are going to applying for (for which, as we saw, there is a limited list). We might call that “Visa C”. And the Home Office guidance says that applicants can only “benefit” from s3C leave if Visa C is the same type of visa as Visa A. 

This is something that might seem rather counterintuitive but what it means is this. An applicant in this sort of circumstance who thought they had acquired section 3C suddenly discovers that they did not because they did not apply for the same kind of visa. This means that they became an overstayer when their previous visa expired and so their new visa application must be refused, because they are now an overstayer.

In some cases migrants have applied for a fee waiver for an application for which they do not qualify – probably, inevitably, in many cases. But supposing a migrant is able to apply for a fee waiver for an application for which they do qualify and try to buy time that way? New rules have determined that that does not work either. 

Our strong advice is this: it is a very bad to apply for a fee waiver for a type of immigration leave you do not qualify for or do not really intend to apply for. 

This area can be very complex. If you are affected by this issue we at GSN Immigration can try and help you.

Oliver Westmoreland

Senior Immigration Lawyer