Fairness to the rescue – Yes, again!

Sarah Pinder — 

The trend is continuing with the fairly recent Upper Tribunal decision of Basnet (validity of application – respondent) [2012] UKUT 00113 (IAC).  This concerns applications rejected as invalid specifically due to a non-payment of the application fee.  We’ve waited too long for some sensible guidance in this area and this is certainly a very welcome judgment.

The Appellant applied in-time for further leave to remain as a Student (Tier 4) supplying his debit/credit card details as payment.  His application was rejected as invalid for non-payment and the standard rejection letter was sent out.  The Appellant re-submitted his application the day after but, by this time, his leave to remain had expired.  The application was then refused (without a right of appeal) due to the Appellant not being able to satisfy the ‘established presence’ requirement to qualify for the lower level of maintenance funds.

The Appellant maintained that he had held sufficient funds in his bank account at all times to cover the application fee and that he had provided the correct details on the payment sheet submitted in support of his application.  So far, a scenario I am sure we’re unfortunately all too familiar with.  Thankfully however, this Appellant was undeterred and instead of pursuing a Judicial Review claim, the Appellant lodged his notice of appeal to the First-Tier Tribunal anyway.  He raised the issue of jurisdiction as a preliminary matter and submitted that this should be determined on the basis of evidence and submissions at the hearing.

The FTT decided that there was no valid appeal as the Appellant’s application fee had not been paid (regardless of the reason why).  However, the FTT issued its decision after full consideration of the matter at a hearing and in the form of a determination in accordance with Practice Statement 3.4 rather than by means of a notice under the First-Tier Rule 9.  This is key as it permitted the Appellant to apply for permission to appeal to the Upper Tribunal and pursue the matter further as per Abiyat (Rights of Appeal) Iran [2011] UKUT 314 (IAC).  Had the FTT decision been made under the Rule 9 notice, the Upper Tribunal would not have had any jurisdiction and the only remedy available to the Appellant would have been Judicial Review.  [Incidentally, for an essential recap on the FTT and UT Practice Directions and Rules - see FM's previous post here.]

So the matter went before the Upper Tribunal and in deciding whether or not the FTT was right in declining jurisdiction, the following points were determined:

  • The question of whether the first application was valid depends not upon whether the payment was successfully processed, but on whether the application was accompanied by the fee [Paragraphs 17 & 18].  This is based on a simple interpretation of the Immigration & Nationality (Fees) Regulations 2011 (2011 No 1055), which provide at Regulation 37:

Where an application to which these Regulations refer is to be accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee.

  • The case of BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089 had already established in relation to the (virtually identical) 2007 Fees Regulations that an application is “accompanied by” a fee if it is:

… 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, without further recourse having to be made by the respondent to the payer.  [Paragraph 19]

Accordingly, the Upper Tribunal found that the FTT decision was wrong in its approach as the validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account.   [Paragraph 20]

At paragraphs 22 & 23, the UT set out the UKBA’s process when it comes to fee payments in both postal and in-person applications and notes the vast differences in approach between the two.  Apparently, with postal applications, the applicant’s payment sheet is shredded (for security reasons) by the UKBA and if the fee cannot be collected, the rest of the application and supporting documents are returned to the applicant.  Further, no record is kept of what went wrong with the payment.

From this, the UT concluded that the best evidence of whether an application was accompanied by the fee would clearly be the original information page supplied by the Appellant and that the best evidence of why an attempt to process a payment failed would be the record kept by whoever processed the payment, i.e. the UKBA.  However, as is clear from the information set out above, both of these are items of evidence which cannot possibly be made available as they are either shredded at the time that the application is returned as invalid or not kept as a record!

Most importantly, the UT considered that the evidential burden as to whether an application was accompanied by the fee payment firmly rests with the UKBA [Paragraph 27]:

We reach this conclusion both by application of first principles – the party that asserts a fact should normally be the one who demonstrates it; and because the respondent is responsible for the procedure to be used in postal cases, and the features noted above prevent both the issue of a prompt receipt and an opportunity to understand why payment was not processed. An applicant is not present when an attempt to process payment is made, and has no way of later obtaining the relevant information. 

In this case, the UT found in the Appellant’s favour and also offered a number of recommendations in order to remedy what the UT thought might well be a substantively unfair system.  The UT did not have to consider the Appellant’s secondary submission, that the system treated him unfairly, but it stated that if measures of the type recommended at Paragraph 32 were not adopted, or cogent reasons as to why they cannot be adopted, this:

may well result in a determination that the consideration of the application has been unfair and therefore not in accordance with the law: see Naveed (student – fairness) [2012] UKUT 14 (IAC).  (see here for post on Naved)

Finally, we are reminded by this judgment of the power of the Tribunal to make directions against the UKBA for disclosure of any record kept on the issue of fee processing or any other information which might be deemed to assist the determination of such issues so it is also worth bearing this in mind when drafting the initial grounds of appeal.

Sarah Pinder

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Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

4 responses to Fairness to the rescue – Yes, again!

  1. The way these forms are set out is so silly. Form FLR(O) Version 04/2012 is really badly cross-referenced. Maybe the next version will be better …

  2. i am sorry all these fairness cases always deal with fees processings. what about other aspects of an invalid application like missing a box . Any recent cases for them.

  3. vinny

    It was indeed shocking to see statements like this – BE (application fee: effect of non-payment) Mauritius [2008] UKAIT 00089 (10 October 2008): “Any system which expressly seeks to distinguish between various kinds of failure risks being administratively unworkable.”

    Clearly unjust.