Part 3: Enforcement Section 62: Power to cancel leave extended under section 3C of the Immigration Act 1971
A person who currently has leave and applies to extend their leave to enter or remain may find that their leave expires while their application remains undecided, or while an appeal or administrative review against a refusal decision remains pending. To prevent people being left without leave, section 3C of the 1971 Act provides for continuing leave to enter or remain subject to the same conditions (unless varied) pending the decision on an application, and for the duration of any appeal or administrative review in relation to such decision.
	It is not currently possible to cancel continuing leave that exists by the operation of section 3C. Continuing leave only ends when the application is decided or withdrawn and any appeal or administrative review that may be brought is no longer pending. This creates a problem when non-compliant cases come to light as explained in the example below:
Example (1):
Mr X is a student with valid leave to remain that expires soon. He applies for further leave to remain as a student before that leave expires and while the application remains undecided his leave expires so it is extended by operation of section 3C of the 1971 Act. He remains able to work and study subject to the conditions of the leave he was granted as a student. During this period an immigration officer encounters Mr X and establishes that he is in breach of his conditions because of the employment he has entered into. The immigration officer also establishes that the original leave to remain was obtained by deception because of a fraudulently obtained English language certificate. Mr X continues to benefit from leave extended under section 3C of the 1971 Act until the application is decided and any opportunity to bring an administrative review application is concluded. (There is no right of appeal in this scenario).
Example (2):
Mr Y is a student with valid leave to remain that expires in 2 years time. An immigration officer encounters Mr Y and establishes that he is in breach of his conditions because of the employment he has entered into. The immigration officer also establishes that leave to remain was obtained by deception because of a fraudulently obtained English language certificate. The immigration officer may immediately curtail Mr Y's leave to remain, detain him and give notice that he will be removed.
	The peculiarity of the different outcomes in the above examples is a consequence of changes to section 10 of the 1999 Act made by the 2014 Act. Until the 2014 Act came into force, section 10 set out circumstances in which a decision could be made to remove a person from the UK and provided (in section 10(8)) that the making of such a decision had the effect of invalidating any leave to enter or remain, including leave granted under section 3 of the 1971 Act, and continuing leave under section 3C of the 1971 Act.
	Subsection (1) provides a mechanism to cancel leave to enter or remain extended by the operation of section 3C. New subsection (3A) of section 3C provides a power to cancel leave which is or would otherwise be extended by section 3C, in circumstances in which either deception has been used by the applicant in seeking leave to enter or remain; or a condition attached to the person’s leave has not been observed.
	Subsection (2) provides that notification of cancellation of leave extended by section 3C will be given in accordance with section 4(1) of the 1971 Act, namely by notice in writing to the person affected.