BE v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

THE IMMIGRATION ACTS

Before

SENIOR IMMIGRATION JUDGE P R LANE

Between

BE

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Sauhoboa, of Adsum Lex Chambers

For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

1. An application for leave to remain which is not accompanied by the specified fee is not a valid application (regulation 16 of the Immigration and Nationality (Cost Recovery Fees) Regulations 2007 (S.I. 2007/936)). Subsequent payment does not affect the earlier invalid application.

2. Except in the case of cash payments, an application is “accompanied by” a fee for the purposes of regulation 16 if it is accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.

NOTICE UNDER RULE 9 OF THE ASYLUM AND IMMIGRATION TRIBUNAL (PROCEDURE) RULES 2005

1. The appellant, a citizen of Mauritius born on 13 March 1965, had leave to remain in the United Kingdom as a student until 29 February 2008. The appellant wished to obtain further leave to remain as a student at Inter-Continental College. On 20 February 2008, she sent to the respondent a completed application form for such further leave. It is common ground that the appellant was required by reason of the Immigration and Nationality (Fees) Order 2007 to pay a fee of £295 in connection with that application. The appellant's husband filled in details of his debit card number, card expiry date and the last three digits on the back of the card. He wrote his full name in the relevant space provided in the form, which is prefixed by the words “Name on card”.

2. On 3 March 2008 the respondent wrote to the appellant to inform her that she had not made the required payment of the fee. Having checked with her husband, it was apparent that there was no shortage of funds in the husband’s bank account. The appellant realised that the only possible disparity was that her husband had written his full name on the form, rather than his initials and surname, which was the way his name appeared on his debit card. The appellant accordingly resubmitted the form, this time with her husband’s name as it appeared on his debit card. The husband’s bank account details indicate that the payment to the respondent of the fee was cleared in the husband’s account on 10 March 2008.

3. On 4 April 2008 the respondent decided to refuse the appellant's application on the basis that Inter-Continental College was not registered with the DFES and that the appellant had not shown that she could maintain herself. The notice of decision also said this:-

“You made an application on 06 March 2008. However, your leave to enter/remain expired on 29 February 2008. You therefore did not have leave to remain at the time of your application.

There is no right of appeal against this decision.

You have no right to stay in the United Kingdom so are liable to be removed. You must leave as soon as possible. If you do not leave voluntarily, you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2,500 and/or up to six months’ imprisonment and you will also be liable to be removed from the United Kingdom to Mauritius.”

4. The appellant nevertheless purported to appeal to the Tribunal. On 10 July 2008 at Taylor House her appeal came before an Immigration Judge, who heard evidence from the appellant and her husband. The Immigration Judge found both of them to be credible. He concluded that the appellant could maintain herself without recourse to public funds. He also found, by reference to a computer printout of 9 April 2008 that Inter-Continental College was on the register of education and training providers. The respondent has not taken issue with those findings.

5. There is no express reference in the determination to the question of whether the appellant had a right of appeal. The closest the Immigration Judge got to that issue was in the following unreasoned finding:

“21. Finally, I find that the appellant's application was made in time.”

6. The Immigration Judge purported to allow the appellant's appeal. On 13 August 2008 reconsideration of his decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002 on the application of the respondent, who contended that the Immigration Judge had provided no reasons for his finding in paragraph 21 and that the application purported to have been made by the appellant on 20 February 2008 was invalid, having regard to the provisions of the Immigration and Nationality (Cost Recovery Fees) Regulations 2007.

7. The Immigration and Nationality (Fees) Order 2007 (SI 2007/807) came into force on 15 March 2007. The order was made in pursuance of powers conferred on the Secretary of State by the Immigration Asylum and Nationality Act 2006, having been laid before and approved by a resolution of each House of Parliament. The power to make the order was conferred by section 51(1) and (2)(a). Section 51(1) empowers the Secretary of State to require an application or claim in connection with immigration or nationality to be accompanied by a specified fee.

8. Article 3(1) of the 2007 Order provides that an application in connection with immigration or nationality to which that article applies must be accompanied by the fee for the time being specified in relation to the application in question in regulations made under 51(3) of the 2006 Act. Article 3(2)(b) provides that the article applies (inter alia) to applications for variation of leave to enter, or remain in, the United Kingdom given in accordance with the provisions of, or made under, the Immigration Act 1971. Article 3(2)(b) thus plainly covers variations of leave under the Immigration Rules.

9. The Immigration and Nationality (Cost Recovery Fees) Regulations 2007 (SI 2007/936) came into force on 2 April 2007. They were made in exercise of the powers conferred on the Secretary of State by sections 51(3) and 52(3) of the 2006 Act. Section 51(3) provides:-

“(3) Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State -

(a) shall specify the amount of the fee,

(b) may provide for exceptions,

(c) may confer a discretion to reduce, waive or refund all or part of the fee,

(d) may make provision about the consequences of failure to pay a fee,

(e) may make provision about enforcement, and

(f) may make provision about the time or period of time at or during which a fee may or must be paid.”

10. Regulation 4(1) provides that, subject to exceptions not here relevant, in the case of an application to which article 3(2)(a) or (b) of the 2007 Order applies, where the application is for limited leave to remain in the United Kingdom -

(a) as a student;

(b) to resit an examination;

(c) to write up a thesis;

(d) as a student union sabbatical officer; or

(e) as a prospective student,

under the Immigration Rules, the fee is as specified in regulation 4(2). Regulation 4(2)(a) specifies a fee of £500 for an application made by a person at a Public Inquiry Office of the Border and Immigration Agency of the Home Office. For an application made by post, regulation 4(2)(b) specifies a fee of £295. As we have already seen, that is the sum which the appellant eventually paid by means of her husband’s debit card.

11. Regulation 16 is entitled “Consequences of failing to pay the fee specified for an application”. It reads as follows:

“16. - (1) Subject to paragraph (2), where an application to which regulation 4, 11, 13, 14, 15 or 16 refers is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee.

(2) An application referred to in regulation 3 or 4 which is made prior to 21 May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.

(3) The Secretary of State may treat an application referred to in paragraph (2) as withdrawn if, having written to inform the person who made the application that the specified fee has not been provided, that fee is not provided within 28 days of the letter having been posted.”

12. As we have seen, section 51(3)(d) of the 2006 Act specifically enables an order to be made so as to make provision about the consequences of failure to pay a fee. It is quite clear from regulation 16, read as a whole, that a distinction is being drawn between the post-21 May 2007 situation and applications made prior to that date. In the latter case, a period of grace is, in effect, being provided to those applicants who, for whatever reason, failed to pay the requisite fee when making the application. On the facts of the present case, the appellant's application would have been in time, had she made it before 21 May 2007. The post-21 May regime, by contrast, is plainly intended to be a strict one. Unless the fee accompanies the application, that application “will not be considered to have been validly made”. Those words apply to the Tribunal, in cases (such as the present) where the validity of an application arises, as much as they do to the respondent.

13. Regulation 4(2)(a) prescribes a considerably higher fee in the case of applications made in person, compared with applications made by post. Even in the case of personal applications, it can be assumed that many, if not most, payments of fees will in practice be by means of cheques or debit or credit card payments. In the case of postal applications, cash payments are presumably out of the question.

14. What, then, is meant by “accompanied by that fee” in cases where the payment is intended to be effected by means of a cheque or credit/debit card? I consider that the only sensible interpretation of those words in such cases is that the application must be accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.

15. On the facts of the present case, the application which the appellant purported to make on 20 February 2008 cannot be considered to have been validly made. A valid application was only made on 3 March 2008 when the appellant, according to her statement of 9 April 2008, “amended the details requested and posted the form back again”. By that time, her leave had expired, with the result that the respondent could not decide to vary that leave, or refuse to vary it. The March application could not breathe life into the earlier invalid application. The refusal to grant leave to remain is not an “immigration decision” within the meaning of Part V (Immigration and Asylum Appeals) of the 2002 Act (see section 82(2)). The appellant accordingly had no right of appeal to the Tribunal and the Immigration Judge materially erred in law in finding that the application was “in time” and in his implicit finding that there was jurisdiction to allow the appeal.

16. Mr Sauhoboa submitted on behalf of the appellant that this result is harsh. On the facts of this case, it undoubtedly is. Mr Sauhoboa submitted that Parliament, in permitting the 2007 Regulations to pass into law, cannot have expected the Regulations to have such consequences. He did not, however, suggest how else regulation 16(1) should be interpreted; nor did he submit that regulation 16(1) fell to be treated by me as ultra vires sections 51 and 52 of the 2006 Act. In any event, however, I do not consider that regulation 16(1) can be said to be perverse or otherwise unlawful. The concept of requiring payment with an application is hardly novel. The most obvious means of ensuring such payments are made is to preclude applications from being valid unless accompanied by the requisite fee. There will in practice be a wide range of reasons why an application is unaccompanied by a fee, ranging from deliberate deceit or omission to innocent inadvertence. Any system which expressly seeks to distinguish between various kinds of failure risks being administratively unworkable.

17. Mr Sauhoboa submitted that the respondent could and should have replied earlier than 3 March. If this had happened, say, by return of post, the appellant would have been able to rectify the situation before 29 February. That might be so, although the respondent’s delay cannot be said to be so extreme as to smack of maladministration. But in any event a criticism of this kind cannot entitle the Tribunal to disregard the plain intention and effect of regulation 16 and arrogate to itself a jurisdiction it does not possess. Indeed, one of the effects of (and perhaps intentions behind) the regulation may be to encourage applicants who are in a position to do so to apply for variations in good time before the end of their existing leave, rather than leaving it to very near the end, as often seems to be the case.

18. The consequence for the appellant in the present case is that she never had a valid appeal to the Tribunal and the Immigration Judge's determination, purporting to allow that appeal, cannot stand. However, as I indicated at the hearing, I would very strongly recommend that the respondent consider granting the appellant leave outside the Immigration Rules. Whatever the legal position, the Immigration Judge presided over a hearing on 10 July at which the substantive grounds on which the respondent had decided to refuse to grant leave to remain were thoroughly examined, in the presence of a Presenting Officer, who cross-examined the appellant and her husband. As I have already stated, the Immigration Judge found both to be entirely credible and further found that Inter-Continental College was on the relevant register. The explanation for the failure to pay is also credible and falls very much at the bottom end of the range described in paragraph 16 above.

Decision