Kezia Tobin and Sarah Pinder recently broached this topic at a seminar given by Renaissance Chambers on 13 June 2012 digesting the procedural issues and most recent case-law involved and this post has been put together by them both to highlight some of the issues covered.
The notes highlight the “evidential flexibility policy” of the UKBA, which was covered on the blog last year. Evidently (no pun intended) there has not been any further disclosure of the policy instructions to caseworkers so we are none the wiser as to exactly what criteria are being applied by UKBA caseworkers. However it is important to note that the standard acknowledgement letters sent to applicants upon receipt of an application do seem to have been updated to include the following paragraph:
If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem.
This in itself should therefore be sufficient to render a subsequent refusal unfair and not in accordance with the law if the caseworker did not contact the applicant when there was missing documentation or omissions, a common occurrence it seems.
The more difficult cases are when the applicant submitted all of the required documentation but simply did not meet the requirements of the relevant points-based category and Article 8 may then be the only possible cause of action to pursue. However it would also be worth trying to argue that ‘missing documentation or omissions on the form’ are given as examples and are not an exhaustive list of problems!
Another common occurrence in Points Based System cases is the decision by the UKBA to return applications as invalid, without giving them substantive consideration. This causes difficulties for applicants because if no decision is made, no appeal right is given. What often follows is a series of so-called ‘invalid’ applications being bounced back and forth between an applicant and the UKBA, with the frustrating and disappointing end result of the final application being rejected substantively because it was made too late, after the expiry of leave to remain.
So what to do? The case of Basnet, discussed in an earlier post by Sarah Pinder here, is very helpful. Firstly, it suggests that even when no right of appeal is stipulated, an appeal could be lodged and might be considered. In that case, the Upper Tribunal found that there was a right of appeal because the ‘invalid’ application had in fact been valid all along. It remains to be seen how the Tribunal is going to handle future appeals of this sort (whilst to our knowledge Basnet remains unchallenged by the SSHD), but for now it is worth lodging appeals against such decisions (even if out of time) setting out why the case of Basnet applies and why the tribunal has jurisdiction.
Secondly, Basnet confirmed that the onus is on the SSHD to show that an application was not accompanied by the right fee. Those principles can arguably be applied to other alleged omissions too, particularly when considered alongside the evidential flexibility policy and the provision contained in the standard acknowledgment letter as mentioned above.
The danger with ‘invalid’ applications is getting caught up in trying to challenge the substantive decision, which deals with the latest (and, importantly, out of time) application. Far better would be to challenge the dismissal of the earlier (within time) application, both indirectly by lodging an appeal against the substantive decision (i.e. refusal of variation of leave) as per Basnet and by preparing a letter before claim for Judicial Review in parallel. By asking in the latter for the decision to be withdrawn and replaced by a decision granting leave to remain, or at least giving a right of appeal, you may also find you receive a response which can in itself become the subject of the JR. Referring to the evidential flexibility policy might also be useful at this stage.