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Family of four face removal for failing to tick box on visa application form


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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.

Tips for making sure an application isn’t rejected as invalid

1. Make it a ritual to go through paragraph 34 of the Rules before submitting every application. It really doesn’t take long but it could potentially save you against complaints or claims for professional negligence (which can be a lot more than you think, especially if an applicant has lost their right to work because you forgot to fill in a part of the application form);

2. If you’re relying on any of the exceptions in paragraph 34, e.g. you’re not submitting proof of ID because the Home Office already has it, then say so. Decision-makers are not mind-readers and so it’s important you explain any procedural issues briefly in your representations;

3. Keep a scanned copy of EVERYTHING; it will be your saving grace if an application is wrongly rejected; and finally

4. Prepare an index of documents to allow the decision-maker to see exactly what documents you are submitting with the application. This way, at a glance, they can see if you have submitted the mandatory documents.

As always, take your time, be thorough and be sensible.

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Picture of Bilaal Shabbir

Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.


One Response

  1. I hope this decision gets overturned at the Supreme Court. A complicated Immigration system that is unable to correct such a simple error of box ticking authorisation, by preventing caseworkers from contacting the applicant, is not really sensible.

    I’m confused. I don’t see any options in A6 for the Home Office to collect payment electronically from the bank, unless she paid by debit card? But I don’t see an option for ticking payment by debit card in A6. Page 3 does mention where to put debit card payment details, but the tick box options do not specify.

    However, there is an option in the dependant’s form for ticking payment by debit card in A2.7.

    So, we have an imperfect and unclear main applicant’s form that is inconsistent with the dependant’s form, with respect to payment tick box options.

    If the Home Office and the Courts expect applicants to be perfect at box ticking, then there is also no excuse for the relevant forms to have some tick box options missing.

    Moreover, having two fees for the main entrepreneur applicant and only one fee for each entrepreneur dependant may also have been confusing for the applicant. Was this perhaps a reason for not ticking nor circling the fee amount? Was it possible that she wanted a caseworker to help pick the correct amount for her?

    If an applicant gave payment details, then isn’t that implicit authorisation for payment? Why else would an applicant fill in the payment details? If an applicant did not request a fee waiver, then is it rational to insist that there is non-authorisation for payment from a lack of a tick in a box?

    If all applicants in this category must pay a fee, then the form’s starting premise of a possibility of non-authorisation for payment may be illogical. For all practical purposes, there should have been no choice on the form for an applicant not to authorise the payment. A simple declaration along the lines ”I authorise all payments of the specified fees” included in the form would have been clear. It may have prevented all this “invalid due to non-authorisation of payment” nonsense. If there was an implied choice for the non-authorisation of payment, then the form may be unreasonable in design.

    Moreover, in the judgment,

    17. The Appellant responded quickly to the decision that her application was invalid. She made contact with her bank, visiting her branch in Ilford to find out what had happened. The bank wrote a letter “To whom it may concern”, dated 20 August 2014, which we have seen. The letter confirms that there was no attempt to debit the Appellant’s account of £4,272 (the total fee for all four applicants) but that the amount of £3,279 (for the other three applicants) had been “taken with no problem”. The relevant bank statement confirms that the latter sum was paid out on 15 August, leaving a balance of £4,248.82. In other words there were ample funds to cover the whole amount, had payment been sought. For myself, I can understand why the Appellant was puzzled to be told this was a “bank rejection” case. However, as we have seen, the point had already been made that she had failed to give the relevant authority. The matter would have been clearer had the GCID notes been disclosed earlier.

    Note that
    4272 – 3279 = 993, which does not equal 1093.
    Or 1093 * 4 = 4372, which does not equal 4272.

    Even in the judgment, we can see a simple miscalculation.

    This reinforces that humans are imperfect and occasionally make mistakes. To expect otherwise may be another mistake.