Fee Waivers, Section 3C Leave and the October 2026 Immigration Rules: A Procedural Trap for Applicants?

If you cannot afford a Home Office fee, you can ask for it to be waived. It is a sensible and sometimes essential route. From 8 October 2026, though, a change in the Immigration Rules turns the order of your steps into something that can decide whether you remain lawful in the UK.

Section 3C of the Immigration Act 1971 automatically extends a person's existing leave when they make a valid application to extend or vary it before that leave expires, and it has not been decided by the time it runs out. During that period, the same conditions as the previous leave normally continue, including the right to work.

It depends on a valid, in-time application. That is why the date of application matters so much.

Under paragraph 34G of the Immigration Rules, where an online application includes a fee waiver request, the date of application is the date the fee waiver request was submitted. This only works if the full application is then submitted within 10 working days of receiving the fee waiver decision.

The tribunal's decision in Hussain [2026] UKUT 82 shows how unforgiving this can be. A fee waiver request is not itself the immigration application. In that case, the applicant could not rely on section 3C because the completed application had not been put in within the 10 working days.

Statement of Changes HC 584 added a same-route requirement. Under the new paragraph 34G(5), if the application that follows a fee waiver request is made under a different route from the one named in the request, the application date is the date it is actually submitted. The earlier fee waiver date no longer carries across.

The Explanatory Memorandum explains the aim. Some applicants had been using a fee waiver request linked to a human rights application to preserve section 3C leave, and then varying the application to a route that does not use the same fee waiver process. In some cases applicants did not enrol biometrics and varied the application repeatedly. The rule change closes that practice.

Consider an applicant whose permission expires on 30 November. They submit a fee waiver request on time, naming one route. The decision arrives, and they then apply under a different route because their circumstances have changed or because they received different advice. Under the new rules, the application date is the date of the actual submission. If that is after 30 November, section 3C leave may not have arisen. They may be an overstayer from the day their permission ended.

Consequences can include:

• no right to work, and employers having to stop employment
• difficulty with right to rent checks
• complications for future applications because of the overstaying

Applications made before 8 October 2026 are decided under the rules in force on 7 October. But a fee waiver request is not an application. What happens if the fee waiver request was made before that date and the main application comes afterwards is unclear. Practitioners have flagged this as an open question, and it may be tested.

Whether an applicant who pays the fee and applies before the fee waiver decision arrives keeps section 3C protection, and how, also depends on the exact sequence and should be checked case by case.

• Decide the route first. The route named in the fee waiver request needs to be the route you intend to apply under.
• Diarise the 10 working days from the day you receive the decision, not from the day it was sent.
• Enrol biometrics promptly once asked.
• If your circumstances may change before you apply, take advice before you request the fee waiver, not after.

Where a sponsored or non-sponsored employee says they have section 3C leave, you still need to evidence the statutory excuse through the correct right to work check and keep a record. A fee waiver request on its own does not give anyone leave to work.

Our solicitor Zahra Mohamed has written about the human side of immigration work in her Legal Women article.

This article is for general information only and is not legal advice. Because this area is new and some points are untested, please take individual advice before relying on it.