Court of Appeal considers failure to enrol biometrics

In R (on the application of) Jayaraman v The Secretary of State for the Home Department [2018] EWCA Civ 2545 (15 November 2018), Peter Jackson LJ (with Sharp LJ’s agreement) considered the requirement to provide biometric information for an application for indefinite leave to remain and the grave consequences of failing to so do.  Jayaraman’s failure to enrol his biometrics led to the invalidity of his application and after the expiry of his limited leave to remain he was rendered an overstayer.

The Regulations

An applicant must apply for the the issue of a biometric immigration document in the manner specified in the Immigration Rules (Regulation 3 of the Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048)). Subsequent amendments to the Regulations required registration of biometrics for both limited and indefinite leave to enter or remain under 3(2)(a) or (b). Regulation 23(3) states that the consequences for failing to comply are refusal of the application for the biometric immigration document, treating the application for leave or entry clearance as invalid, and cancelling or varying the person’s leave to enter or remain.

The Rules

In late 2015 to early 2016, Paragraph 34A of the Rules required applicants to provide biometric information and make an appointment if required to by their application form or guidance.  The appointment must take place by the dates specified/agreed by the Secretary of State (‘SSHD’) . Paragraph 34C did not require the decision maker to contact the applicant to correct any error that renders the application invalid, if the failure was to enrol biometrics.

It should be noted that the Rules are now more generous:

• An applicant must comply “with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to – (a) making an appointment to provide biometrics” (Paragraph 34(9)).
• As for invalidity, where the biometric requirements are not met, the SSHD “may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification” (Paragraph 34B(1)).
• There is also further discretion. If the applicant does not comply with the notification, the application is invalid and will not be considered unless the SSHD exercises discretion to treat the application as valid if the appropriate fee has been paid and proof of identity provided (Paragraph 34B(2)).

The Court of Appeal’s Reasoning

Jayaraman was given several chances to enrol his biometrics:

1. Thirteen days after submission of his application – the SSHD sent his solicitors a biometric enrolment letter requiring him to attend a post office within 15 working days to submit his biometric data. This was allegedly never received.
2. One month after the first letter, a second letter was sent to the representatives referring to the first letter and providing an extension of 10 working days and warning of invalidity for non-compliance. This was posted to Jayaraman by his solicitors, under a cover letter marked ‘very urgent’ but second class and in the week of Christmas. Jayaraman allegedly never received this either.
3. The day before the deadline of the extension, the solicitors asked the SSHD for a further letter to be sent directly to Jayaraman. Several days later (and after the expiry of the 10-day deadline), the SSHD responded to the solicitors by email and said that such a letter had been sent and to, “Please advise your client that they should enrol as soon as possible on receipt of the letter”. Jayaraman states that he also did not receive this third letter.
4. Fifteen days after the third letter was allegedly sent to Jayaraman, the SSHD rejected the application as invalid due to non-enrolment of biometrics, and referred to the warning in the second letter. It was said that he was asked on two occasions to provide his biometric information, but failed to do so in the given timeframe.

The Court’s interpretation of these events was that the SSHD could vary the timetable for the provision of biometric information and that she did so extending the deadline by 10 working days, but gave an express warning of invalidity. As to the second extension this “was not one to which he was entitled”.

Although the SSHD did not set out her position in her email as clearly as she could have done, the Court of Appeal found that it ultimately made no difference:

‘On any view, the solicitor had throughout remained in possession of a copy of the [second] letter … yet neither he nor his client took any steps to pursue the application effectively. In the meantime, a further period of 10 working days came and went. This was not “an uncommunicated administrative decision” of the kind considered in Anufrijeva.’

The suggestion that the email provided an open-ended extension was deemed not to merit serious consideration. The Rules are intended to limit the need to exercise discretion. Lord Justice Peter Jackson considered that, ‘The effect of this claim for judicial review was indeed to seek to make the Secretary of State, who had at each stage behaved lawfully, responsible for the shortcomings of the applicant and his solicitor’.

This is a very clear message from the Court of Appeal that applicants ought to submit their biometric information within the required timeframes (even if there are ambiguous messages from the SSHD which may indicate the contrary).

The current Biometric Information Policy states that if an applicant does not submit their biometrics within the 15 working days stipulated on the original biometric enrolment letter, the SSHD must send a warning letter to the applicant after the 15 days has passed. “If the applicant does not attend at a participating Post Office, after the further warning period, set out in the warning letter, you must reject their application.” While this latter part of the Policy seems to be at odds with the latent discretion in paragraph 34B(2), applicants should be wary to take such risks when the validity of their application is at stake.

As an aside, the new UK VCAS centres may alleviate the need to visit Post Offices as a more streamlined service for submission of applications and enrolment of biometric information is introduced.

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