Basnet (Validity of Application - Respondent)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Macleman,Blake J,Macleman UTJ |
| Judgment Date | 29 February 2012 |
| Neutral Citation | [2012] UKUT 113 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 February 2012 |
[2012] UKUT 113 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, President
Upper Tribunal Judge Macleman
For the Appellant: Mr D Stevenson of McGill & Co, Solicitors
For the Respondent: Ms A M Lochrie, Senior Home Office Presenting Officer
Basnet (validity of application —respondent)
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1. If the respondent asserts that an application was not accompanied by a fee, and so was not valid, the respondent has the onus of proof.
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2. The respondent's system of processing payments with postal applications risks falling into procedural unfairness, unless other measures are adopted.
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3. When notices of appeal raise issues about payment of the fee and, consequently, the validity of the application and the appeal, Duty Judges of the First-tier Tribunal should issue directions to the respondent to provide information to determine whether an application was accompanied by the fee.
The appellant is a citizen of Nepal, as is his wife, Mrs Sumati Karki Basnet. He had leave to remain in the United Kingdom as a Tier 4 (General) Student under the Points Based System (PBS), valid until 28 May 201On 13 May 2011 he applied, with his wife as a dependant, for extension of his leave under Tier 4.
On 17 May 2011 the respondent wrote to the appellant:
Thank you for your application … it will now be passed to a Case Work Unit.
If there is any problem with your application, such as missing documentation, a case worker will write to you as soon as possible to advise what action you need to take to rectify the problem. If there is an issue with the fee you have paid then your application will be deemed to be invalid and returned to you as soon as possible by post. You will be advised on what action you need to take to make a valid application.
On 16 June 2011 the respondent wrote again to the appellant:
Thank you for your attempted application for leave to remain …
… Your application is invalid … The Immigration & Nationality (Cost Recovery Fees) Regulations 2011 and the Immigration & Nationality (Fees) Regulations 2011 specify the fee … to be paid … if an applicant does not pay the specified fee, his or her application is invalid.
The specified fee has not been paid …
The passage next to the box ticked below provides more detail about the failure to pay the specified fee and the steps you should take to ensure that you make the correct payment when returning your application.
[Box checked]: Although credit/debit card details have been provided, the issuing bank rejected the payment. There may have been insufficient funds in the account or the details provided did not match the information held by the bank. For security reasons the cardholder's name, address, expiry date and issue number supplied on the payment form must correspond to the information held by the issuing bank. If the details fail to match the bank will reject the payment. Your fresh application should be returned to the address given on the application form.
The words in bold above are also in bold on the original; but the letter remains silent as to the specific reason for non-payment.
The first letter from the respondent was within the appellant's period of existing leave, but the second letter came after his leave expired.
The appellant received the second letter on 21 June 2011, and re-applied on 22 June 2011.
The respondent refused that application by letter dated 3 August 2011. The letter states that because the application was made when the appellant no longer had valid leave to remain in the United Kingdom, he did not have “an established presence studying in the United Kingdom”, and so did not qualify for the reduced level of maintenance funds to be shown. The bank statements submitted to support the application did not meet the maintenance requirements.
It is common ground that throughout the period of both applications the appellant had funds in his bank account such that if he had made an “in time” application based on an “established presence”, the application would have succeeded.
The respondent's letter also advised the appellant:
There is no right of appeal against this decision.
If the appellant had not made a valid application within his period of leave, that would be a correct statement of the law.
The appellant filed a notice of appeal on 16 August 2011 with the First-tier Tribunal. His grounds argue that his leave continued beyond 28 May 2011 by the operation of section 3C of the Immigration Act 1971; that the respondent's rejection of the application made on 13 May 2011 was invalid; that his leave continued until the “first substantive rejection” of 3 August 2011; and that he had a right of appeal under section 82(2)(g) of the Nationality, Immigration & Asylum Act 2002. The appellant maintained that with his application of 13 May 2011 he provided correct bank details, and he showed that funds were in his account at the time. He referred to BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089, a case based on the 2007 Regulations, but “equally of assistance” to the 2011 Regulations. The appellant had accompanied his application by such information and authorisation as was necessary for the respondent to be paid, so the notice “invalidating” his application was “itself invalid”. If so, the appellant would qualify for the reduced maintenance level, and was bound to succeed. The grounds conclude:
The First-tier Tribunal is respectfully requested to list for hearing. If the respondent wishes to dispute the matter of payment and the competence of the appeal, then it is most appropriate for this to occur by virtue of evidence led and submissions made … as a preliminary matter.
The case was listed for oral hearing before Judge of the First-tier Tribunal Professor Rebecca M M Wallace at Glasgow on 21 September 2011. The appellant was represented by Mr Stevenson, and the respondent by Mr Young. The Presenting Officer maintained that there was no valid appeal before the Judge, and she considered that as a preliminary issue. As required by Practice Direction 3.4, the Judge issued her findings in the form of a determination, dated 26 September 2011, rather than by means of a notice under First-tier Rule 9. At paragraph 32, she said:
The appellant's application fee has not been paid and whatever the reason, even if that fault lies with the respondent, in that someone may possibly have entered a wrong digit, causing payment to be refused, the fact remains that there is no valid case before me.
The Judge held that the case must fail “for want of jurisdiction”, and ended her determination thus:
Decision: I find there is no valid appeal before the Tribunal.
Still undeterred, the appellant on 5 October 2011 sought permission to appeal to the Upper Tribunal. The grounds argue that despite the First-tier Tribunal concluding that no right of appeal existed, it was competent for the Upper Tribunal to consider the matter, on the authority of Abiyat (Rights of Appeal) Iran [2011] UKUT 314 (IAC), now reported at [2011] Imm AR 6. It is pointed out that the grounds of appeal to the First-tier Tribunal called for evidence from the respondent that the application was not accompanied by the fee. The respondent:
… failed to do so, simply relying on a bare assertion without evidence. In contrast the appellant had his witness statement which was not challenged and which spoke to his belief that he had completed the form correctly. In addition there was evidence that he held the relevant funds for the fees …
The appellant “accompanied” his application with the fee. Whether the fee was taken or not is largely irrelevant (contrary to the IJ's findings at paragraph 32) …
The grounds also contend that the respondent's:
… current regime [in respect of fee payments] falls into simple administrative unfairness.
The first matter for us to consider was whether the appellant had a right of appeal to the Upper Tribunal against the First-tier Tribunal's decision declining jurisdiction. The Presenting Officer, no doubt advisedly, did not dispute that the appellant has such a right of appeal. The case is on all fours with Abiyat. The First-tier Tribunal reached its decision to decline jurisdiction not by way of a Rule 9 notice, but following full consideration of the matter at a hearing, and expressed its conclusion in the form of a determination. The appeal was therefore validly before the Upper Tribunal.
The next question was whether the First-tier Tribunal was right to decide that it had no jurisdiction. The jurisdiction of the First-tier Tribunal turned on whether a...
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