R (Singh) v The Secretary of State for the Home Department [2018] EWCA Civ 1669 is about how the transitional provisions in the Immigration Rules apply to online applications which must be supported with further evidence sent later by post. The appellant argued that an application made online without supporting evidence was not valid and therefore did not count as an application for the purpose of deciding whether the “old” or “new” Rules applied. The Court of Appeal rejected this argument and ruled that the online application did count and therefore the previous Rules would apply. This meant the appellant could not benefit from a change to the Rules which required the Home Office to chase applicants for missing evidence and give them an additional 10 days to submit it.
Mr Singh had leave to remain as a student and made an online application for further leave on 22 October 2014, shortly before his leave expired. On 16 October 2014 the Secretary of State for the Home Department had changed the Immigration Rules on supporting documents. Previously, applicants had 15 days to supply those documents by post. If the deadline was missed the application would be automatically rejected. The new Rules told Home Office caseworkers to instead send a letter chasing up the missing documents and wait for a further ten days before rejecting the application. At the same time the Secretary of State made a Rule stating that applications made before 6 November 2014 would be decided on the basis of the old rule and applications made after that date would benefit from the new rule.
Mr Singh argued that this transitional rule only referred to “valid” applications made before 6 November 2014. His application never became valid because he had not sent his passport to the Home Office, therefore it did not fall to be considered under the old rules and he should benefit from the additional ten days provided by the new rules. The Court of Appeal rejected this argument:
The provisions we have to consider turn on an on-line application made in a specified form, whether or not the proper accompanying documents are subsequently deposited by post. Since the whole timetable turns on an on-line application, the eventual validity of which cannot be tested for some period afterwards, the intention of the Rules and the transitional provisions seem to me rather obvious. The intention must be that the time provision runs from the point of the on-line application, made using the stipulated software, whether or not that application subsequently proves to be “valid” or “invalid” by reference to the provision of aftercoming necessary documents and information.
…
Any other interpretation would produce a surprising contradiction. It would mean, presumably, that the validity of the application would be decided under the new Rules, but then the substance of any valid application would be decided by a reversion to the old Rules, since there would have been an “application” before 5 November.
Although the outcome of this case is unfortunate for Mr Singh it is difficult to challenge the conclusion reached by the Court of Appeal. It would be very surprising if the online application were not to count as an application as a matter of law when that term is used in other parts of the Immigration Rules.
(Nath has written an interesting post about this whole business of online applications: Leave to remain application date: how to calculate it and why it is important — Ed.)
