This was the question answered by the Upper Tribunal in R (Bajracharya) v Secretary of State for the Home Department (para. 34 – variation – validity) [2019] UKUT 417 (IAC).

Mr Bajracharya made an application to remain in the UK on the basis of his private and family life. He provided his biometric information as required. Before a decision was made on this first application, he made a second application, this time for indefinite leave to remain (ILR).

A person can have only one application for leave to remain outstanding at any given time. An application submitted whilst an earlier application is still pending is treated as a variation.

But Mr Bajracharya did not provide his biometric information as part of the ILR application, meaning that this application was invalid.

The question for the Upper Tribunal was: what happens to the underlying private and family life application? Does the underlying application survive the invalidation of the variation application?

The competing arguments

The Home Office position was that Mr Bajracharya had ended up with no valid application.

The department argued that the ILR application was valid at the time of submission. This is supported by two previous cases which held that an application is not retrospectively invalidated by failure to fulfil a future obligation (such as to post a passport or provide biometric information). The application is invalid from the date of that failure, not from the outset.

The ILR application was therefore valid, at least at first. This valid variation subsumed the previous application. When Mr Bajracharya failed to provide his biometrics, the sole outstanding application was invalidated. There was, by this point, no previous application in existence for him to fall back on.

Mr Bajracharya argued that defects in an attempt to vary an application do not infect the underlying application. The variation was invalid, but the initial application remained valid and pending.

A difference in wording

The Upper Tribunal agreed with Mr Bajracharya. It relied on a distinction between the wording of the rules on initial applications and variation applications:

The wording in 34 (application) and 34E (variation of an application) is different. An application ‘must be made in accordance with’ the requirements of paragraph 34. A variation of an application ‘must comply’ with the requirements of paragraph 34. Paragraph 34 includes the requirement for biometric information which is forward looking. Compliance cannot take place, it seems to me, until the applicant receives the biometric enrolment letter from the Respondent and follows the process set out in the letter. That does not however make the application invalid at this juncture given the requirement to comply has yet to be triggered by the receipt of the enrolment letter so as to set the biometric clock starts ticking. The variation is in a state of pending compliance. Once the Respondent sends the biometric letter the clock starts ticking and the application will become invalid if the applicant does not submit the data within the requisite timescale. (Paragraph 26)

At first blush, I found the Home Office’s argument more compelling. Mr Bajracharya’s argument, although attractive due to its simplicity and common sense approach, seems difficult to reconcile with previous case law. I have to confess I am not sure I understand the distinction between the phrases “in accordance with” and “must comply” that the Upper Tribunal draws.

A difference in context

It is generally preferable to avoid “a state of pending compliance” as this can result in the person retrospectively becoming an overstayer, with all the complications that entails.

But this is not such an issue with a variation application, as the person will already have their leave extended under section 3C by virtue of the initial application (as recognised by the Upper Tribunal at paragraph 28). This seems to me to be the more pertinent distinction. The Home Office’s argument ignored the distinction between an initial application and a variation application.

The Upper Tribunal was not willing to ignore this important difference:  

It is apparent from the wording of section 3C(4) & (5) Immigration Act that there the statutory regime makes a conceptual distinction between the two… From a plain reading of paragraph 34E I do not see how the distinction can be collapsed in the way Ms Ayres [for the Home Office] sought to do, given the wording of paragraph 34E. If the variation does not comply with the requirements in paragraph 34 “the variation will be invalid and will not be considered” (paragraph 34E). Invalidity does not extend to the original application. (Paragraphs 32 and 33)

As a result, Mr Bajracharya’s application for judicial review was successful and the case returned to the Home Office to make a decision on the outstanding private and family life application.