Procedural Fairness & Jurisdiction of the First Tier Tribunal Basnet (validity of application - respondent) [2012] UKUT 00113(IAC)

The Upper Tribunal has recently reported a decision concerning the UK Border Agency's treatment of postal applications and in particular payment administration.

Eagle eyed readers will spot that the appellant in this judgement was in fact assisted by ourselves in challenging the UKBA, both at the First Tier Tribunal and subsequently the Upper Tribunal.

The Upper Tribunal's decision, after a hearing before the President of the Upper Tribunal (Immigration and Asylum Chamber) Mr Justice Blake and Senior Immigration Judge MacLeman, is fairly far reaching.

Currently UKBA, for the majority of postal applications under the various provisions of the Immigration rules, will simply return an application as invalid if there are any issues with the fee payable. The difficulty is that the regulations that govern immigration application fees would only render an application invalid if the applicant fails to provide all necessary information to take the fee (in the case of debit/ credit card payments). UKBA's current processing approach appears to admit of no possibility that an applicant would give all necessary authority to debit their card but that the fee would be unable to be taken for a reason outside the applicant's control. Reasons why this could happen would sensibly include error on their side, or perhaps with the 3rd party contractor (ATOS) who administrates their systems.

None of this would be a problem, or indeed of much note, except for the UKBA's frequent action of returning an application after the applicants current leave has expired. The first application made is considered not valid and therefore any future application would be doomed to fall 'out of time'. As anyone with even a cursory understanding of UK immigration law knows, it is imperative that any application to extend permission to remain in the UK is made before the expiry of the persons current leave. To have leave when you apply is not only a requirement of most of the immigration rules, but also generally a prerequisite for an appeal against any decision not to extend leave.

Ultimately therefore UKBA's choice to return applications in this way can have fairly devastating effects for applicants. The system seems unfair. Certainly it would be perverse if an applicant were to lose the right to reside in the UK because of a processing error at UKBA.

The Upper Tribunal agreed and has made several recommendations that may affect how UKBA will process payments in future. In addition the Upper Tribunal has placed the onus of proof in respect of payment issues on UKBA. This means that when UKBA simply assert that there was a problem and an applicant disputes the fault lay with them, UKBA will have the duty to prove this.