My client had been given exeptional leave to remeain in the UK. She applied for it to be extended. At the time of the decision she was awaiting a decision on that application.

My understanding of the law (and of course I am not allowedto be an immigration specialist) was that someone is treated as having leave until a decision is taken.

DWP said no.

We went to appeal. By the time of the appeal deciison leave had in fact been granted but the Tribunal still turned me down.

The Tribunal Chair has also refused leave to appeal. Any thoughts on application for leave to Commissioners? Thanks.

If you have limited leave to remain in the UK and you apply for a variation or extension before the leave runs out, your leave is extended pending the outcome of your application to vary. So long as your client applied for an extension before her previous leave expired, then she should have been treated as having her leave extended and the tribunal are wrong.

If she only applied for the extension after her leave ran out, then she had no leave and the tribunal are right.

Relevant legislation is S3C of Immigration Act 1971 (inserted by S118 of Nationality Immigration and Asylum Act 2002):


3C (1) This section applies if-
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when-
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision is pending (within the meaning of section 104 of that Act).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
(6) In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with regulations under section 105 of that Act (notice of immigration decision)."


Also see DMG 070694, which refers to the principle, but does so by reference to obsolete legislation.

I happen to have all this to hand, because I was writing to DWP about a very similar case at the same time you were posting your query!

see also R(DLA) 1/01, that confirms that the old variation of leave order covers ELR -

'... a similar rule to the Order must apply in cases which were outside the immigration rules as the system for granting leave exceptionally appeared to be "an essential adjunct to the rules themselves and to underpin their operation". Therefore, a person who had been granted exceptional leave to remain and had applied for a variation of the leave before it expired, must be treated as still having that limited leave, subject to whatever conditions applied, until 28 days after the application was decided or withdrawn.'