Invalid applications: in recent years, this has become one of the trickiest and dense parts of our immigration law. It’s one of my favourite areas because it’s so interesting and technical (as those of you who attended the Immigration Law Masterclass Conference will know!).

You might ask what the big deal is with invalid applications anyway? Well, the main reason an invalid application is bad news is because an invalid application is treated as if it were never made and section 3C does not operate to extend the person’s leave to be in the UK while their bid to extend it is formally considered. This effectively means an applicant is treated as an overstayer from the date their leave was originally due to expire.

Invalidity seems to be an area which doesn’t get much press, which is a little strange given the effects of an invalid application can be pretty devastating. Just ask the appellant in Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462.

This was another episode in the long-running series of “Basnet” cases discussing the invalidity of visa applications because of payment-related issues. Essentially, the key principle is that if the Home Office asserts that an application is not valid, they have the onus of proof of proving that but only if the application was, on its face, a valid one.

The crux of the Kousar case was this: can an appellant who does not tick a box authorising the Home Office to take payment, benefit from the Basnet principle or the evidential flexibility policy in para 245AA of the Immigration Rules? No, said the Court of Appeal.

Failure to tick the “take payment” box

Ms Kousar is married with two young children. In what feels like a whole different era, at the time she made her application as a Tier 1 (Entrepreneur) in 2014, the law still provided that if you did not have leave to remain at the time of your application, you did not get a right of appeal if that application was subsequently refused.

Her initial application was rejected as invalid because she failed to tick a box which authorised the Home Office to contact her bank and take the fee. When that application was rejected, Ms Kousar immediately made another application, which was eventually refused on the merits and which didn’t provide her with a right of appeal.

She appealed to the First-tier Tribunal against the original rejection. The tribunal issued directions to the Home Office to explain what attempt had been made to take payment. The Home Office failed to comply with those directions (no surprise there) and at the hearing, the Presenting Officer conceded that the Basnet principles applied and the appeal was allowed. The Secretary of State then successfully appealed on the basis that the tribunal had no jurisdiction to decide the point. Enter the Court of Appeal.

No help from Basnet where payment not actually authorised

The decision in Basnet (validity of application – respondent) Nepal [2012] UKUT 113 (IAC), established that “validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account”.

The main issue was whether the Basnet principles or the evidential flexibility provisions applied to Ms Kousar’s case. It was common ground between the parties that the authorisation box had not been ticked.

Essentially, the appellant’s submissions were similar to the ones advanced (and rejected) in Mitchell (Basnet revisited) [2015] UKUT 562 (IAC):

…in Basnet the form submitted was good on its face…It does not appear to us that similar reasoning applies when the alleged defect was apparent on the face of the form itself, and so was within the knowledge of the applicant.

At the time of Ms Kousar’s application, paragraph 34 of the Immigration Rules (which governs the validity of applications) was framed in very different terms. Rule 34A(ii) and (iii) said this:

(ii) any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable,

(iii) any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified.

And paragraph 34C said this:

34C. Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.

The inflexible language of the Rules provided for no discretion in such circumstances. Thus the fact that the form authorising payment was incomplete was Ms Kousar’s downfall. As the court concluded:

…the approach of the Upper Tribunal in Mitchell (Basnet Revisited) was entirely correct. It is only when an Appellant can demonstrate that he or she has taken the necessary steps to authorise and effect payment that it falls to the Secretary of State to show, by further evidence, that the application was nevertheless invalid on the ground that the application fee was not “paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes”, as Rule 34A stipulates.

The evidential flexibility policy basically says that a caseworker has a degree of discretion to contact a migrant to allow them to correct minor errors or omissions. The arguments on this front were similarly dismissed:

It is true that the information in the remainder of the form would have indicated that the appropriate fee here was £1,093. But that was not the point. This was not a case of missing information, a missing sheet in a sequence of bank statements or something similar. This was a missing authorisation.

The harsh part about this case was that when Ms Kousar applied, there was no mechanism by which an error or omission like the one on her form, could be fixed. As I advocated to the Scottish Parliament, on behalf of the Law Society of Scotland, invalid applications mean Kafkaesque consequences and an applicant could unwittingly become stuck in the “hostile environment”.

As a result, in October 2014, amendments were made to the Immigration Rules which allowed for prima facie invalid application to be rectified at the discretion of the Home Office. Thankfully, with the withdrawal of a lot of paper application forms and the move towards making applications an online process, the issues with payments being rejected are likely to disappear altogether.