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Tribunal returns to issue of failed payments and invalid immigration applications


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Following on from Basnet (validity of application – respondent) [2012] UKUT 113 (IAC) (President Blake) and Mitchell (Basnet revisited) [2015] UKUT 562 (IAC) (Deputy President Ockleton) we now have Ahmed & Ors (valid application – burden of proof) [2018] UKUT 53 (IAC) (President Lane). All three cases concern the effect of an alleged failed payment when making an immigration application.

Although the rules have softened in recent years, at one time a failure in the payment — which might be caused by applicant error or by error in processing by the Home Office — led to an invalid application which in turn meant the applicant being an unlawful overstayer.

The official headnote:

(1)    Central to the analysis in Basnet (validity of application – respondent) [2012] UKUT 113 (IAC) is the existence of a further procedure undertaken by the Secretary of State in order to process payment in relation to which applicants are not privy and over which they have no control. As such, it remains appropriate for her to bear the burden of proof.

(2)    The fact that an invalidity decision was not immediately challenged may be relevant in determining whether the legal burden, including an initial evidential burden requiring the Secretary of State to raise sufficient evidence to support her invalidity allegation, has been discharged.

(3)    Whether the Secretary of State ultimately discharges the legal burden of proof will depend on the nature and quality of evidence she is able to provide, having regard to the timing of any request for payment details and the reasons for any delay, balanced against any rebuttal evidence produced by an appellant.

The appeal was allowed as the appellants had consistently asserted they had provided valid payment details.

This case was determined under the old appeal regime pre-dating the Immigration Act 2014. These types of argument would be very difficult to run under the new appeals system. Which was perhaps why the Home Office changed the system.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.