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Invalid applications
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Invalid immigration applications cause serious difficulties. The problem is that the UK Border Agency advises people not to make applications until shortly before their existing leave is due to expire. However, it often takes the Border Agency days or weeks to look at the application, by which time the person’s existing leave has expired. As long as the application was valid, this causes few difficulties because the person’s leave is automatically extended by section 3C of the Immigration Act 1971 until the end of the application or appeal process. A serious problem arises where the Border Agency in their wisdom return the application as invalid: the person becomes an overstayer, commits a criminal offence by even remaining in the UK to re-submit the application, risks a re-entry ban and loses any right of appeal if the re-submitted application is unsuccessful.
There are many reasons why applications are declared invalid. In fact, it is quite difficult to get absolutely everything right. I once acted in a case where an application where it was declared invalid because the applicant had not entered a land line telephone number in the mandatory box. He had no landline. Applications are sometimes rejected because the photographs are too small, too smiley or too frowny. Submitting the incorrect fee (too much or too little does the trick) leads to automatic refusal, despite the difficulties calculating that fee when there are dependents involved. All of this would be good reason to hold the application and ask for further information or repayment, but it is not a good reason to criminalise the person concerned. Some might think that it makes such a mockery of the idea of criminal immigration offending that UKBA can hardly continue to go around saying that overstaying is a serious matter.
There are several cases where these issues have been canvassed. One of the most useful is that of Forrester, which I wrote about at the time. A handy little new case has just come out that may help some people: R (on the application of Kisuule) v Secretary of State for the Home Department [2011] EWHC 2966 (Admin). In this case the application was refused on the grounds that photographs were not included at all. The applicant insisted that he was very sure he had included them. The judge sided with him and held that the application had been validly made in the first place. The Border Agency will have had to pay the claimant’s costs.
These invalidity cases are a huge waste of everyone’s time and effort, they make a mockery of a criminal offence and it is high time the Border Agency reverted to the old system where leave was automatically extended for 28 days to give an opportunity to resubmit an application.
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10 responses
Very interesting. We recently had a rejection of a Tier 2 application as the payment details “had not been completed”. Our scanned copy showed that the page had indeed been filled in correctly. Not quite sure what UKBA are doing on these cases sometimes.
I’ve had a plague recently of cases where UKBA say the ‘fee could not be taken’ and enquiries with the applicant’s bank reveal that they didn’t try to take it in the first place. Resolving these can take weeks and in the meantime the applicant is stuck here with no status, no right to work and no means of support. When status is then grudgingly given, the ‘overstay’ is held against the applicant for a future ILR application!
I have a similar case that is currently awaiting a hearing at the Upper Tribunal. The circumstances concerned a defect in the provided fee, then an invalid notice, then an out of time appeal.
Its worth noting that, as I understand it, the statutory authority for the invalidation of applications on a fees not paid basis, is contained within a couple of regulations, one being The Immigration and Nationality (Fees) Regulations of 2011.
The specific regulation states that “Where an application to which these Regulations refer is to be accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee.”
The Upper Trib has already said in BE (application fee: effect of non-payment) Mauritius [2008] UKAIT 00089 that in the case of credit card payments “‘accompanied by’ means an application is “accompanied by” a fee for the purposes of regulation 16 if it is accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.”
My case hinges on our assertion that all necessary authority was provided to take the fee. If UKBA didn’t agree, then we need evidence to show why, the burden switches to them. It is in fact irrelevant if the fee was taken, only that the application was accompanied by it. If a judge was with me, then the notice could not be regarded as being given in accordance with the law, and on the evidential burden my client provided what was required, unless displaced by anything UKBA could show.
Lost at the first stage, but hope to challenge on appeal. If I can get the notice reduced then 3c leave would have continued and my appeal would be valid. Recent cases such as Patel and Thakur suggest common law fairness is a matter for an IJ.
Also worth pointing out that I doubt UKBA actually retain the payment page in the submission. It goes to a processing centre, and then if payment cant be taken, it is destroyed. Who is to say a digit wasnt entered incorrectly? the fault with UKBA? This needs to change. If they want to enforce such draconian consequences they need to be fairer in their approach.
I can see an cart before the horse argument in terms of my statutory basis to appeal, but we will see. The recent case of Abiyat at least gives me the right to try at the Upper Trib.
“to err is human.”
Certainly an area where extension of humanity, common sense, and decency by the UKBA would vastly improve its customer service and ;public perception.
The UKBA has a high error rate by anyone’s standards, so it is hypocritical to ask applicants to be almost error free.
The consequences certainly don’t fit the offence.
I would certainly advise any applicant to copy or scan their application form, as others have indicated.
Do the UKBA still return applications made too soon, and do they still take the fee?
thank you for the article. i had an invalid app this year and it has put my 10 yrs ilr into jeopordy. i am going to court in dec as that is my last chance.
all sounds very familiar
I now advise clients to pay with postal orders even though it works out more expensive because of the suspiciously high frequency with which applications are returned as invalid due to an alleged problem with taking payment from debit/credit cards
Us university welfare advisers have been battling this for years.
We have been advising all applicants to use only postal orders or bankers drafts for years as Durham have always had real problem with card payments.
I remember a spate of invalid applications before the last election where we were receiving tons of really bizarre invalid applications. Applications were rejected for being 1mm too big or small. Others were rejected on the basis that the off-white background they were photographed against was not white enough!
A cynical person might suspect that this was a ploy to generate statistics before an election – “We, the government, are dealing with x number of bogus student applications”.
Thank god that European free movement applications require no fee. One less thing to go wrong within UKBA.
How much does it cost UKBA to return an application, and then have to deal with the queries, problems and resubmission? I suspect at least £20. Maybe they should consider informally overlooking underpayments up to £15 in order to make themselves money!
In Germany you can submit an application however you like.
Take the form during opening hours, fax it and keep the fax receipt, send it by recorded delivery.
Or do the same with a letter clearly indicating what is being applied for.
Or apply orally during opening hours with two adult witnesses. (Not advisable or practical but legal.)
Then the authority will – and must – ask for the relevant documents and written answers to any questions not answered in the form/covered in the application letter and give an appointment to attend to provide answers, passport, docs and biometrics. The fee can be paid at that point too.
An invalid application is therefore virtually imposible. If the applicant does not cooperate with providing info and docs they will be refused, but the point is that an incomplete or faulty application is valid where the applicant does cooperate within the reasonable period given by the authority.
(It is normal and easiest to make an appointment to submit the form and all docs, which will then be checked for completeness at the time, but the above applies if the applicant doesn’t.)
This results from administrative law on the functioning of public authorities, not specifically immigration law.
With appropriate political will the same sensible procedures could operate in the UK. At least an invalid application which needs to be resubmitted could be deemed to be in time.