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Chef faces removal after missing biometric enrolment deadline

Chef faces removal after missing biometric enrolment deadline

People who want a UK visa or visa extension have to provide the Home Office with “biometric information”; that is, fingerprints and a photograph. If they don’t sent in their biometric information, the visa application will be invalid and the applicant risks becoming an overstayer. This, as the decision in¬†R (Jayaraman) v Secretary of State for the Home Department [2018] EWCA Civ 2545¬†demonstrates, is not good.

Mr Jayaraman, a 51-year-old chef from India, applied for indefinite leave to remain. The Home Office wrote to his solicitors, as nominated point of contact, telling him to submit biometrics within 15 working days. There follows an unhappy tale of apparently missing letters and definitely missed deadlines, from which the solicitors do not emerge with much credit (at one point we get the judicial observation¬†“what possessed the representatives to send a letter by second-class post three days before Christmas is beyond me”.

In the heel of the hunt, poor Mr Jayaraman did not enrol his biometrics in time and was hit with a notice of liability to removal. He launched a judicial review. The argument in this appeal turned on an email sent by the Home Office after an extended deadline for enrolment had passed:

Thank you for your email, a letter has been sent to Mr [Jayaraman] as directed today.

Please advise your client that they should enrol as soon as possible on receipt of the letter.

Counsel for Mr Jayaraman argued before the Court of Appeal that this email

amounted to a variation of the timescale for compliance with the biometric registration requirements, as permitted by Paragraph 34A(v) and that it was therefore unlawful for the Respondent to reject the application for indefinite leave as invalid.

Lord Justice Peter Jackson, with just a hint of feeling sorry for an applicant seemingly let down by his solicitors, thought this was rubbish. Two hard deadlines had already passed by this point:

The suggestion that an open-ended extension had been granted does not merit serious consideration. The Immigration Rules and surrounding legislation are designed to create a simple system where the need to exercise discretion is limited. 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. In so far as the latter may have contributed to the failure to present a valid application, that cannot translate into a proper public law challenge.

Readers may have spotted that the rules on invalidity have changed since the events in this appeal, in a way that does give caseworkers some discretion. In particular, paragraph 34B(2) can now says that officials can “exercis[e] discretion to treat an invalid application as valid” so long as it is at least accompanied by the fee and ID. More on these changes from Nath here.

 

Conor James McKinney

CJ is Free Movement's deputy editor.

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