Court of Appeal gives guidance on invalid applications
In Kousar & Ors v The Secretary of State for the Home Department  EWCA Civ 2462 (07 November 2018) Irwin LJ gave the judgment to which both Baker LJ and Lindblom LJ agreed. The judgment revolved around whether the First-tier Tribunal had jurisdiction to hear the purported appeal against an invalid application.
Kousar made two Tier 1 (Entrepreneur) applications for leave to remain. The first was deemed invalid 3 days after she made the application, as she failed to tick the relevant box on the payment details page of the form which would authorise the Home Office to collect the fee (Rule 37 of the Immigration and Nationality (Fees) Regulations 2011).
After her leave to remain expired, she submitted a revised fresh application form with the relevant box ticked. Whilst valid, the second application was refused on its merits and without a right of appeal as it was out of time under what was then section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 (see SA  UKAIT 00083).
There were several issues in the appeal:
- Can jurisdictional issues be raised in the Upper Tribunal, if they were not raised in proceedings before the First-tier?
- Was rejection of the first application reasonable, fair, rational and/or proportionate in light of the evidence and consequential effects on Kousar?
- Do the facts and context show that Kousar had been treated unfairly?
- Should Kousar have benefited from the Basnet (validity of application – respondent)  UKUT 00113 (IAC) principle, in line with the evidential flexibility policy under paragraph 245AA of the Rules?
When can jurisdiction submissions be raised?
Before the First-tier Tribunal (“FTT”), the Home Office Presenting Officer accepted he could not advance submissions to overcome the evidential burden on the Secretary of State in Basnet. The Upper Tribunal (“UT”) nevertheless permitted the Secretary of State to raise the abandoned jurisdictional point.
The Court of Appeal endorsed the UT’s approach: “The starting point is that the Respondent could not be precluded from taking a jurisdictional point because it had not been taken before the F-tT. There either is or is not jurisdiction before tribunals, which are creatures of statute. Jurisdiction cannot be created by consent or waiver of a point, never mind a failure by the Secretary of State to take the point before the F-tT.” 
Is evidential flexibility engaged?
Mandalia and Mudiyanselage had made it clear that harsh outcomes from the requirement to meet the letter of the PBS Rules were the price to be paid for the perceived advantages of the PBS process. The Court of Appeal sought fit to note that the Points-Based System is deliberately designed to be “detailed, objective, bureaucratic”, intended to “reduce the exercise of discretion” and promote “clarity over flexibility” .
Nevertheless, there is the “evidential flexibility” in paragraph 245AA of the Immigration Rules.
Where a document does not contain all of the specified information, the decision maker may contact the Applicant in writing, and request the correct documents (245AA(b)(iv)). If a specified document does not contain all of the specified information but the missing information is verifiable from other documents submitted with the application, the Secretary of State has the discretion to request the specified documents in the correct format or grant exceptionally.
It is not clear at all that an application form is a “specified document”, for the purposes of evidential flexibility, but the Court of Appeal fails to consider this point.
In any case, the current guidance on Evidential Flexibility states “Paragraph 245AA only applies to specified documents. Specified documents are route specific and are documents the applicant has to provide in order to meet the requirements of the Rules. A request for further information can only be made under evidential flexibility when the applicant has made a valid application” (page 4). The guidance as it stands suggests that the assessment of validity must be independent and prior to any assessment as to whether evidential flexibility should be exercised.
The Court of Appeal considers that evidential flexibility does not apply for another reason: failure to comply with the specific procedure for authorising payment of fees is not “missing information, a missing sheet in a sequence of bank statements or something similar”, it is “missing authorisation” .
Is the process fair, rational and proportionate?
Apparently, the ‘tick in the box’ is not merely a formality. The Home Office’s commercial partner is given the detached financial pages of the application to process payment separately .
Irwin LJ was convinced that the procedure for authorisation, given the large sums of money involved, avoids confusion and risk; the procedure was not unfair, irrational or disproportionate.
Yet what the Court of Appeal fails to consider in the substantive part of the judgment was that Kousar was more disadvantaged than even Basnet, as the refusal did not specify why the payment had not been processed. The Secretary of State failed to tick the box in the refusal letter stating that: “You have not made any payment and have not completed the payment page of the application form” . Kousar went to her bank to determine why payment had not been taken despite the availability of funds, as she believed it to be a “bank rejection”. The GCID records explaining that the appropriate box was left un-ticked were only disclosed two weeks before the Court of Appeal hearing and more than 4 years after the application was found invalid. The failure of the Secretary of State to provide timely reasons for invalidity was not considered in assessing the procedure’s fairness
But what of the fact, that Kousar made her application in-time and the day prior to her leave expiring? Well, she is critiqued for the “extreme lateness of the application” . The Secretary of State informed her of the problem within three days, so had “she applied a week before the end of her leave rather than on the last day, this would have been resolved in time” .
It now seems that the guidance of the Court of Appeal would be to apply well in advance, in the hope that if there is any invalidity the Home Office will react with great speed and inform the applicant prior to the expiry of leave. Of course, if made too far in advance there is the risk that an Applicant could fall into the section 3C trap: the application could be refused, within the validity of the Applicant’s leave, and the Applicant may not have time to make a further application prior to the expiry of that leave.
Rather than relying on the Home Office’s efficiency in processing postal applications, online payment for the increasingly online application process may minimise the risk of invalidity.
Basnet and Mitchell (Basnet Revisited)
In Basnet there was no fault with the application form, the fee could not be processed despite authority being given by the applicant, and only the Secretary of State knew the reason why: in those days, the payment page was shredded for security reasons and there were no records of what was wrong with the payment. Normally an applicant bears the burden to prove that an application is valid. However, as the crucial knowledge was only held by the Secretary of State, he had the evidential burden to demonstrate ‘that the application was not “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” must fall on the respondent’ (emphasis added) .
The text of  in Basnet is clearly referring to authorisation, but in that case there was no identified defect with the application form. However, Mitchell can be distinguished as the application form may not have been “good on its face” . In those circumstances the alleged defect is within the knowledge of and the evidential burden remains with the applicant.
Relying on the approach in Mitchell, the Court of Appeal ultimately finds that: “only when an Appellant can demonstrate that he or she has taken the necessary steps to authorise and effect payment that it falls to the Secretary of State to show, by further evidence, that the application was nevertheless invalid on the ground that the application fee was not ‘paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes’, as Rule 34A stipulates” .
In order for an applicant to discharge their evidential burden, best practice would dictate retaining a copy or scan of the payment page and if the funds are to come out of a bank account, evidencing the availability of those funds.
As the invalid application did not constitute an “immigration decision”, conferring a right of appeal to the Tribunal under section 82(1) of the Nationality, Immigration and Asylum Act 2002, the UT was correct in finding that the FTT had no jurisdiction to hear the appeal.
There is, however, one more important point to note that is not covered by the determination. The Rules are more generous now than they were in August 2014. Rule 34A, which the Court of Appeal references, is now subject to 34B. If the requirements of paragraph 34 are not met, including fee payment, “the Secretary of State 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.” Where the applicant does not comply with the notification, the application is invalid and will not be considered. There is now one more opportunity available than there was at the time Kousar made her application.
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