Invalid Applications to the Home Office

As everyone in my office knows and laments I never tire of discussing the case of Basnet v SSHD. The decision itself is not especially significant in the grand scheme of law (and even immigration law), however it has particular resonance for me since I was the solicitor who argued it before the Tribunal. I therefore read with interest the Upper Tribunal decision of Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 00150 (IAC).

This is a fairly complex decision, though arguably mainly because of a lack of clarity and specification in decisions from the First Tier Tribunal which the Upper Tribunal had to address. This related to the use of terms to describe things as decisions that were not actually 'decisions'.

The nub of the case was this- can you appeal against a 'decision' of the Home Office to invalidate your application for leave?

The central contention of the appellants was that they could appeal against the notice which sent their application back to them (because of a problem with the fee). This happened twice in fact.

The Tribunal found they could not. This seems entirely correct.

The reason is that only certain types of decision generate a right of appeal under statute. The notice invalidating an application is not one of them. In Basnet the Tribunal, in an approach described as 'somewhat bold' by the panel in Ved, looked back at the procedural history to determine if it was correct to classify Mr Basnet's decision as one which could not be appealed. But the critical factor was that there existed a substantive decision refusing leave. In Ved there was not. There was simply an application that had been returned (twice).

The reason why the decision from the Home Office in Basnet could arguably take a different form depends on whether an application was made before the expiry of leave. If an application is made before the expiry of leave you have an appeal when there is a refusal to vary that leave. The reason why it is described as 'varying' leave is because applying before the expiry date of a visa statutorily extends leave under s3c of the Immigration Act 1971 until the decision is reached. Therefore when the decision maker comes to make a decision the person concerned has leave and if they are then refused the leave is not continued and they are left without leave at that point. Therefore in terms of the 2002 Act it is a "refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain" which is a decision which can be appealed. The important part is highlighted in italics.

In Basnet's case the point became about whether he could be regarded as actually having applied before his leave expired. We contended he had made a valid application. The Home Office could not dispute that. The key issue was though that Mr Basnet had made a second subsequent application after the invalidation of the first. This created a substantive decision in response. That decision was on its face something which could not be appealed, since if made after the expiry of leave there was no leave to 'vary'.

This is very esoteric, but the core point is this. The Tribunal's 'bold' approach in Basnet was to look back and see if procedurally it was arguable that one type of decision could be seen as another type, through establishment of precedent facts. But we were still talking about 'decisions' made under statute. In Ved it was attempted to extend that to correspondence which was very far from being an immigration decision regardless of timings or disputed facts.

Whilst the Tribunal in Ved may have thought Basnet was a bold decision, one can envisage circumstances where the same principle would be applicable to more straightforward issues. For example what if the date of posting (and therefore the date of application) is disputed. The Home Office might say the application was posted after the leave expired. They might refuse leave ostensibly without a right of appeal. If an appellant could prove that this was wrong and an application was posted before leave expired, then as a preliminary evidential point it seems appropriate that a tribunal could look at that evidence to decide if it might actually have jurisdiction. This is particularly when the only difference between a right to appeal or not is often simply down to timings of applications.

Equally what if the Home Office invalidated an application because someone was smiling in their photographs? This would be lawful, since photographs must conform to published guidance*. If on review 'smile' was taking things too far and the person had a naturally sunny and happy face, but it was their neutral expression, then it should be possible to argue the application was unfairly invalidated and convince a tribunal that the Home Office acted unreasonably in invalidating that application.

These are all points that could be made, but the operative issue is this- a valid application must be made after a disputed invalid one. Otherwise the person will not get a substantive decision and the door cannot be opened to the tribunal. Without a substantive decision to argue there is no appeal. There is a preliminary point and then no substantive decision of any kind.

A better approach from the Home Office would be to take a less extreme view on invalidation. If something is missing from an application why not ask for it? The Home Office would rather the person is then denied a right of redress which is affordable and straightforward than simply have minor issues corrected. The consequences of overstaying because of an invalid application are so serious that this cannot be right.

In fact recently we have been seeing more requests from the Home Office to correct minor issues before rejection. This is entirely sensible. Clearly you shouldn't be able to send a postcard with a stamp and a message saying ' Dear Theresa May, Can I have leave to remain please?' and expect that to be considered a valid application. But when an application is substantially valid, it seems far better to just get the additional data, or fee, or photographs rather than subject people to such expensive and complex litigation.



* For the sake of brevity we will leave the Supreme Court decision of Alvi to the side!