The judgement of Shabana Kousar, Court of Appeal  EWCA Civ 2462, 7 November 2018 shows how practical issues when submitting immigration applications can lead to negative immigration decisions.
The applicant a Tier 1 entrepreneur failed to tick a box to authorise payment of the immigration application fee by debit card - all other information including the account number, date and signature had been supplied. Her application was lodged a day prior to her visa expiring through immigration representatives. The Home Office rejected the application as invalid on the basis that the failure to tick the box meant the payment team were unable to process the fee, thereby invalidating the application - the guidance notes explicitly stated failure to tick a box would mean payment could not be taken.
The immigration representative for the applicant argued that the decision was ‘unreasonable, unfair, irrational and/or disproportionate’ and that the evidential flexibility policy (the “policy”) should be applied – the policy enables the Home Office to request further information, to cure a defect where for example, a document from a series is missing.
The Home Office argued that the failure to tick the box was not a ‘mere formality, but the necessary authority to the commercial partner’ and therefore, the evidential policy could not be applied.
The judge found that the failure to tick the box did not ‘fall’ within the policy - as the failure to tick the box was ‘missing’ information. The judge distinguished the present case to Basnet  UKUT 00113 (IAC). The judge observed that the applicant in Basnet had ‘done all he could’ - he had completed the form correctly and the funds were available. Also, the applicant in Basnet informed the Home Office he had completed the form correctly, thereby discharging the burden of proof. The Home Office at the time, did not keep records of payments and so could not disprove this.
In this case, the applicant could not show that payment had been authorised, due to the failure to tick the box. The court observed that if the payment had been made earlier, it could have been rectified!
The case illustrates the black letter law approach taken by the Home Office, which can ultimately lead to denial of a visa for lack of merely ticking a check box. The statement by the judge, that the failure could have been rectified if the applicant had made the application earlier is compelling as it shows:
Applicants should treat immigration application procedures and all other requirements with care. Although the Home Office is in the process of moving to an online system, applicants should respond to questions correctly and comply with requirements. New processes should be treated with caution – let the applicant beware!
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