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Fee cheque bounces

Fee cheque bounces

Since the introduction of fees for immigration applications in 2003, the Home Office has become fanatical about collection of these fees. If the fee isn’t included with the application, no application is considered to have been made, so your leave to remain might expire while you think the Home Office is considering your new application. In fact, they are just taking their sweet time to let you know that as far as they are concerned, you haven’t even made an application.

This is exactly what happened in the recent case of R (on the application of Forrester) v SSHD [2008] EWHC 2307 (Admin), decided by Mr Justice Sullivan. The immigrant had applied for an extension of stay at a time when she still had current leave to remain and was lawfully present in the UK. However, the cheque to pay the (outrageously high) fee bounced. The application was rejected by the Home Office purely on the grounds that the fee was unpaid, by which time the immigrant’s leave to remain had expired. A new application was then submitted, and the fee was enclosed and was accepted by the Home Office. However, the Home Office then rejected the application solely on the basis that it was made when the immigrant had no leave to remain.

Sensible? Hardly. It was a crass decision, particularly as they took the fee the second time. £395 is quite a lot of money for such an appallingly rubbish ‘service’. Or, as Mr Justice Sullivan put it:

“This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question.”

He goes on to allow the case, referring to the reasoning in Chikwamba as he does so. However, the extent of the decision seemed to be that the decision to refuse solely on non-possession of leave grounds was quashed and the Home Office have to think again, not that leave should now be granted on the basis of ECHR Article 8 family and private life.

Still, it is refreshing to see a sensible decision like this every now and then.

As a postscript, I include a warning that I know of one case where the applicant included too much money and effectively overpaid the fee. The Home Office gallantly refused to accept it, but with the effect that the applicant was left in the same position as Ms Forrester: leave had expired and when the applicant re-applied the Home Office refused the application purely on the basis that leave had expired.

Bonkers.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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