There’s been a lot written on this blog recently about overstaying. Why do we keep banging on about it, you may ask? Because even a short period of technical overstaying, even if entirely innocent and endorsed by the Home Office, can cause problems for future applications.
This was demonstrated recently by the case of Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC).
On 11 September 2008, Mr Das mixed up his immigration application forms when applying for an extension of his student visa. He used the April 2008 version of the application form, rather than the August 2008 version. When this came to light, he re-submitted his application on the new form and the application was granted.
So far, so good.
Ten years later, Mr Das applied for indefinite leave to remain on the basis of ten years’ continuous lawful residence. The Home Office refused this application because of that old mistake: the application submitted on 11 September 2008 had been invalid as it had not been made on the correct form. The new form was submitted after the expiry of Mr Das’s visa. So he was an overstayer until his application was granted several months later, on 5 March 2009.
The Upper Tribunal’s reasoning
A valiant attempt was made to circumvent the clearly unfair and nonsensical conclusion that a mistake with a form over ten years ago required the application to be refused. However the Upper Tribunal was not on board.
Counsel for the appellant ably argued that the Home Office had not given proper notice of the invalidity of the application, rendering it ineffective. A comparison was drawn with the Biometric Regulations. These allow the Home Office to treat an application as invalid if fingerprints are not provided, although it must issue a notice to that effect.
The Upper Tribunal rejected this comparison. The invalidity procedure under the Biometric Regulations is not automatic because of the requirement for notification. By contrast, submitting the wrong form automatically invalidates an application:
His application was invalid when it was made, or purportedly made, because that was the outcome mandated by paragraph 34C. The respondent was not required to give notice in order to render the application invalid.… the Immigration Rules stipulated at the time that the application of September 2008 was invalid when it was submitted, without any requirement of notice. In those circumstances, neither the absence nor the claimed inadequacy of the respondent’s letter from November 2008 is relevant. It is accepted that the application was on the wrong form; it was therefore invalid [paragraph 23].
The tribunal deemed the situation to be “materially indistinguishable” from failure to pay the required application fee, which also invalidates an application automatically (although a degree of flexibility was introduced following the 2012 case of Basnet, which my McGill & Co colleague Darren Stevenson acted in, and subsequent cases).
The fact that the Home Office has, since 2012, implemented a more lenient approach to invalid applications was deemed to be “of no assistance to the appellant” in this case. This is because:
…the Immigration Rules in force at the relevant time deemed the purported September 2008 application to be invalid. That was determinative of the position at that date and the existence of more lenient Immigration Rules or policies at a later date cannot alter the position… It is simply illogical… to suggest that today’s Immigration Rules could somehow be applied to the consideration of events which occurred when a different version was in force, particularly when there is no indication that the Rules should have such retrospective effect [paragraph 26].
As a result there was a gap in continuous lawful residence and the appeal was dismissed. In short: tough luck.
(1) The validity of an application for leave to remain is to be determined with reference to the law in force at the time that it is made or purportedly made.
(2) An application which was invalid according to the law in force at the relevant time cannot be rendered valid by a subsequent change in the law.
(3) There must be adherence to proper standards of appellate advocacy in the Upper Tribunal. In the absence of a formal and timeous application to vary the grounds, professional advocates must expect to be confined to the grounds upon which permission was granted.
(4) When permission to appeal to the Upper Tribunal is granted following a successful application to the Administrative Court under CPR 54.7A (‘a Cart JR’), permission is granted by reference to the grounds to the Upper Tribunal, not the grounds to the Administrative Court: Shah [2018] UKUT 51 (IAC); [2018] Imm AR 707.
Practical implications
Since November 2018 it has been much more difficult to make an invalid application. The vast majority of applications are submitted online, with the fee being paid immediately at the time of submission. It is no longer possible to submit an application without paying the fee or to use an out-of-date form. Passport sized photos, which if the wrong size could also lead to invalidation of an application, are no longer required.
One reason for an invalid application can still arise: failure to provide fingerprints.
The problems with this new visa application process are well documented: they have been covered by Free Movement (of course), the Independent, the Guardian, and the Financial Times. In April 2019, the Indy reported on the short-notice cancellation of 100 biometric appointments, leading to large queues outside the Croydon Visa Application Centre. In June 2019 the same outlet highlighted the problems being caused by the lack of free appointments available at the centres now run by outsourcing firm Sopra Steria.
These problems do not just lead to inconvenience and unnecessary expense. Failure to provide fingerprints can lead to (and in the past has led to) invalidation of the application, with all of the negative consequences of becoming an overstayer and breaking continuous lawful residence which come with that invalidation.
As far as I am aware the problems have not yet become so bad that applications are being invalidated due to inability to get an appointment with Sopra Steria (although it would be interesting to hear if anyone has had an application invalidated for this reason). But in years to come, we may start to see cases where the problems being experienced now with Sopra Steria have negative effects further down the line when people apply to stay in the UK permanently.
