Personal Immigration

Home Office possession of a passport indicates that an immigration application was made

In  Ufot, R (On the Application Of) v Secretary of State for the Home Department[2016] EWCA Civ 298 (10 February 2016)  the Court of Appeal considered whether, on the balance of probabilities, an application for leave to remain as a Tier 4 (General) Student had been made prior to the expiry of the Appellant’s leave.

The Appellant maintained that the extension application had been submitted prior to his leave expiring.  The Secretary of State maintained that she had no record of receiving the application.

In considering whether or not the Appellant submitted the claimed application, the Court of Appeal took into account a number of factors.  On the one hand, the Appellant did not keep a copy of his application or retain any proof of posting. On the other hand, he leased a property, began his course and secured a CAS, which all suggested that it was logical to assume that he had lodged his application.

Importantly, and ultimately decisively, however the Court of Appeal also took into consideration the fact that the Secretary of State held three of the Appellant’s passports on file, two of which the Appellant had reported to the police as being lost due to the Secretary of State failing to acknowledge receipt of his initial application and one which the Appellant had submitted with a subsequent application.  

Lord Justice Elias held:

35. … the critical feature, in my view, remains the wholly unexplained fact that the Secretary of State came into possession of his three passports: the current one and two older ones. And why, if they were unconnected to any application, were they not sent back to him? There has been no satisfactory answer to those questions. They were found in the passport bank in north London. Of course, it is possible that they were sent to the Secretary of State without any other documentation. But that seems extraordinarily unlikely. And the fact that they were sent to the passport bank where passports are apparently sometimes sent in order to keep them safe would suggest that it was assumed that there was something which needed to be resolved before they were returned to him. Otherwise, I would have expected them to be sent back. Alternatively, if there was any good reason for keeping these passport (and it was suggested that possibly there might have been), then the Secretary of State would at least have had to write to the appellant telling him that she had the passport and why she was retaining it. That did not happen.

36.  For these reasons, I consider that the only proper inference is that the Secretary of State did receive an application which somehow was lost. With respect to the judge below, I do not think he gave sufficient weight to the reason why the Secretary of State both had, and had retained, these passports.

There are many instances in which it may be necessary for an applicant to prove that a previous application was made to the Home Office.  In such cases, the absence of any copy of the claimed application or evidence of proof of posting should not be regarded as fatal.  Instead, consideration should be given to submitting a Subject Access Request in order to ascertain whether or not the Applicant’s passport is held by the Home Office.  

Source: Ufot, R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 298 (10 February 2016) 

 

 

 

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