One Response

1. Although it doesn’t say so in the judgement, the applicant was presumably refused points for maintenance as he made the application one day late, and did not therefore fall to be treated as having an established presence in the UK.

   The HO of course had discretion to treat the application as in time. The ‘print and send’ system provided for ample scope for confusion by applicants. Not least, the part of the form which stated:

   (f) On the final page of the application it is stated:

   “Next steps for your application –

   Collate your supporting documents together and post them with your official document, within 15 working days, to UK Visas and Immigration ………. [at specified address].”

   That guidance must be wrong as it is a reference to the rules for an on-line application, and not to an application using the prescribed form. The applicant had also paid his fee in-time and therefore had further good reason to presume his application had been made on-line at that date.

   McCloskey could well have found on the facts that no reasonable decision maker would have acted as the HO did in this case. This wasn’t a near miss case, but one where the applicant did everything he could be reasonably expected to do, including paying a fat fee, to protect his immigration status and continue his studies. Contrast the decision in Kobir, R [2011] EWHC 2515 (Admin) (06 October 2011), where the judge found “it was manifestly unfair and unreasonable for the Defendant not to have looked very carefully indeed at the full history with a view to exercising her discretion outside the rules rather than simply refusing it within the rules”.