Shabana Kousar and Ors v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Lindblom,Lord Justice Baker |
| Judgment Date | 07 November 2018 |
| Neutral Citation | [2018] EWCA Civ 2462 |
| Docket Number | Case No: C7/2017/0146 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2018 |
[2018] EWCA Civ 2462
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Judge Hanbury
IA/50937/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Irwin
and
Lord Justice Baker
Case No: C7/2017/0146
S Chelvan and Alex Cisneros (instructed by Sky Solicitors Ltd.) for the Appellants
Zane Malik (instructed by The Government Legal Department) for the Respondent
Hearing date: 3 October 2018
Judgment Approved
Introduction
The Appellant challenges a decision of the Upper Tribunal (Immigration and Asylum Chamber) [“UT”], promulgated on 2 June 2016. In that decision, Deputy Judge Hanbury concluded that the First-tier Tribunal [“FtT”] had erred in law in the decision of 21 October 2015 (Judge Lewis) in that the F-tT had no jurisdiction to entertain the purported appeal from the Secretary of State's decision of 21 October 2014. That decision was that the Appellant's application to extend her leave to remain was an invalid application. As such, it was not an “immigration decision” within the meaning of s.82(1) of the Nationality, Immigration and Asylum Act 2002 [“the 2002 Act”]. Hence, there was no right of appeal to the F-tT, under the legislation as it then stood.
The Appellant's application was said to be invalid because she had failed to tick the relevant box on the form, which was the authority to the Respondent to collect the fee. Although she submitted a second or revised application in which she did give authority to collect the fee, that was done after her leave to remain had expired. That was a valid application, but was refused on its merits. That application too, it was said, failed to give a right of appeal because, although that was an “immigration decision” the application was made at a time when the Appellant had no leave to remain, and thus by reason of the terms of s.82(2)(d), no right of appeal arose: see SA (s.82(2)(d): interpretation and effect) Pakistan [2007] UKAIT 00083 and R (Khan) v SSHD [2017] 4 WLR 156 [2017] EWCA Civ 424.
The Appellant in written submissions sought to say that the second application was a revised version of the first, and that the decision in Basnet (validity of application – respondent) [2012] UKUT 00113 (IAC) and the policy of evidential flexibility mean that the decision was wrong in law. The Appellant sought permission to appeal (not drafted by either Mr Chelvan or Mr Cisneros, who additionally did not appear for the Appellants below) on grounds described by Longmore LJ as “excessive”. Longmore LJ ordered the grounds to be reformulated. He considered it arguable that the case came within the Basnet principle and that the “evidential flexibility” principle might arguably apply. The former point was an important point of principle or practice, justifying a second appeal.
The reformulated grounds of appeal remain discursive, but advance three issues as follows:
i) Issue One: Whether the rejection of the original application for further leave to remain of the applicant as a Tier 1 (Entrepreneur) was reasonable, fair, rational and/or proportionate, in light of the evidence and the consequential effects on the rights of the Appellant?; and
ii) Issue Two: Whether the appellant/applicant should have benefited from the Basnet principle (unfairness of treatment and the postal application) in line with the Respondent's evidential flexibility policy pursuant to paragraph 245AA of the Immigration Rules?; and/or
iii) Issue Three: Whether in the instant case, as distinguished from other cases relied on by the Respondent, the facts and context show the Appellant has been treated unfairly?
The Respondent replies that the decision of the UT was correct. The first application was invalid and not an immigration decision. The second was out of time and gave no right of appeal. The Basnet principle applies only to valid applications and cannot found jurisdiction where none exists. The policy of evidential flexibility does not arise for similar reasons, and has in any event been shown to be limited in extent and effect, as at the relevant period, so that it cannot avail the Appellant, see: Mudiyanselage v SSHD [2018] EWCA Civ 65. Hence there was no jurisdiction for an appeal, and the UT was correct. The merits of the applications do not arise. If the refusal on the merits (of the second application) did arise for scrutiny the appeal would be bound to fail.
The Facts
The First Appellant was born in 1980, and her husband the Second Appellant in 1984. Their children were born in 2010 and 2011. The cases of the Second, Third and Fourth Appellants are agreed to be dependent on that of the First Appellant, and it is thus the facts of her case which are central.
The First Appellant arrived in the United Kingdom on 21 December 2010 with entry clearance as a Tier 4 (General) Student, her leave being valid until 31 May 2012. Her leave was subsequently extended until 13 August 2014.
On 12 August 2014, that is to say the day before her leave expired, she made an application under the Points-Based System (“PBS”) for further leave to remain as a Tier 1 (Entrepreneur) Migrant. I will refer to this as the “First Application”. Three applications were made on the same day on behalf of the three “dependant Appellants”.
The PBS is deliberately designed as a detailed, objective, bureaucratic system by which applications will be considered. The process of acquiring or demonstrating the acquisition of the relevant points is painstaking. Part of the process is to provide payment of the relevant fee, which usually is performed by giving authority for electronic payment from the relevant bank account. As we shall see, an application not accompanied by the necessary authority for payment is invalid and will not be considered on its merits.
It seems to be agreed that the First Appellant completed the form properly, save in one key respect. Although it has subsequently been confirmed that she had available sufficient funds to pay her fee (and indeed the fees of the other Appellants) she did not tick the box on the form giving authority for the fee to be transferred. So that the matter is as clear as possible, I here reproduce the critical part of the form:
“ Section 1 – Payment Details Tier 1 (Entrepreneur) Migrant
Please complete this section in block capitals and black ink.
A. Application Details
Applicants should refer to the Payment Guidance Notes which accompany this application form.
A1. Tick the applicable boxes and fee. If no fee is ticked we cannot take a payment and your application will be rejected as invalid:
The applicant is making a Tier 1 (Entrepreneur) application □£1093 Standard
Applicant is a national of: Turkey □ FYR Macedonia □
And is making a standard Tier 1 (Entrepreneur) application □ £1038”
In the notes which form the first part of the form, there is guidance for the applicant. The applicant is told to read them before completing the form. On the second page of the form the following appears:
“ Completing the payment details page
To ensure that your payment is processed without any delay, please follow this guidance when completing Section 1 of this form (Payment Details).
A1 Tick the fee appropriate to your application. If you do not select a fee we cannot take a payment and your application will be rejected as invalid – see above guidance.”
The rather simple, straightforward point at the heart of this case is that the First Appellant (or those acting for her) failed to tick the box in the form giving authority for the fee to be paid. The Secretary of State, therefore, says the application was properly treated as invalid. She had ticked the relevant boxes in the forms for the other Appellants.
The evidence was clarified as the matter proceeded before us. We were taken to the Guidance available to officials acting for the Respondent and in force at the time. The relevant passages would appear to be the following:
“This page tells you what you must do if the applicant has not completed mandatory sections of the applications form.
An applicant must fully complete all mandatory sections of the application form. They must answer every question and provide all the information specified in the section. You must reject the application if these requirements are not met.
…
You can use discretion and accept the application as valid if a mandatory section of the form is not completed but the applicant provides the required information elsewhere in the application. For example:
• an applicant does not enter a required passport number on the form but provides a passport
• a UK born dependent does not answer each question in the ‘immigration history’ section of a form.”
The Respondent's officials make notes in relation to each such application, and these are kept centrally as the “GCID-Case Record”. In this case these notes were disclosed very late, on 11 September 2018. They clearly should have been disclosed much earlier. The relevant notes here read:
“APPLICATION INVALID – Rejected – Main app. Has not paid fees … 15 Aug 2014”
…
“bank rejection case … 18 Aug 2014”
Minute/Case Notes:
…
This is the reason for the missing fee for the main applicant as received from Peter Mycock. I have a copy of the payments page mentioned.
…..
I can confirm that all payment pages are retained by our commercial partner (NS&I) for a period of 18 months from date of payment being processed (or attempted to be processed)
Looking at the MI the payment against the main applicant shows as “M” which stands for missing. I have therefore contacted our commercial partner who have confirmed that no “fee” box was ticked on the payment page and therefore no attempt to...
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