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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13326
Experience:  Solicitor
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I am a British subject and my husband is Egyptian

Resolved Question:

I am a British subject and my husband who is Egyptian has been living with me here in the uk since September 2009. I have just recently submitted his form SET (M) to the UK Border Agency (on the 8th November last) as their rules dictate not to send application 28 days before the expiry of your visa. His current Visa expired on the 7th December last. We still have not heard anything apart from a letter confirming receipt of the application and fee. Since being in the Country he has worked for the presigious Lancing College in West Sussex and after 9 months was promoted to supervisor. Now that his visa has expired they have suspended his from work and are withholding his pay pending the result of the application. They say he is an illegal immigrant. How can this be. All his and my documents are with the Agency. I have tried to contact the UK Border Agency but you cannot get through to anyone. We seem to be in limbo here. Can you offer any help as to our situation. Thank you in anticipation.
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 5 years ago.
This is quite wrong. As long as his application was submitted prior to the expiry of his existing leave then his leave is automatically extended until the application is dealt with the extension includes any appeal. This is expressly covered by s3C of the Immigration Act 1971.
the text of the section is set out below. the UKBA can undoubtedly confirm this and his employer are is in breach of contract by stopping his pay.

See below

"3C Continuation of leave pending variation decision

(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(a)the application for variation is neither decided nor withdrawn,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 [F2, while the appellant is in the United Kingdom] 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 [F3, brought while the appellant is in the United Kingdom,] 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."
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