EXTENSION OF EMPLOYMNET RESTROCTIONS FOR BULGARIAN AND ROMANIAN NATIONALS

Extension of employment restrictions for Bulgarian and Romanian nationals

Rejected applications due invalid fee payment-First Tier Tribunal Basnet (validity of application – respondent) [2012] UKUT 00113(IAC)

Would recent The Upper Tribunal decision concerning the UK Border Agency’s treatment of postal applications – Basnet (validity of application – respondent) [2012] UKUT 00113(IAC), finally end the UKBA’s unfair policy?

It is going on for months! The application is are rejected as “invalid” by the UKBA because case worker allegedly was unable to collect the fee payment from the applicant’s bank account.

To make matters even more confusing the UKBA – respondent did not clarify to the appellant in its letter rejecting the application whether the “non payment” was due to lack of sufficient funds or “the details provided did not match the information held by the bank”. Consequently, an application is rejected and despite the fact that applicant still had leave to remain in the UK when the application was made, the applicant is now an “overstayer” in breach of the UK’s immigration laws. If more than 28 days have elapsed since the end of the previous leave to remain, a consequence of this is that, should the applicant eventually leave the UK, he or she may well be subject to the mandatory refusal of any future application for entry clearance or in other words, a “re-entry ban”.

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. This is an impressive and extremely welcome development in the law. From now on, it seems, applications cannot simply be rejected as invalid by the UKBA on the basis of the assertion that it was not possible to obtain payment. The UKBA will have to provide proof that the application itself was invalid.

The Tribunal ends its determination by stating that to avoid future disputes of the kind in Mr Basnet’s case, the UKBA must implement procedures ensuring that postal applications are processed immediately upon receipt, placing them in an approximation of the more favourable circumstances experienced by “personal” applicants and, moreover, that if something goes wrong the applicant is contacted “to afford an opportunity to check or correct the billing data”.

www.bailii.org/uk/cases/UKUT/IAC/2012/00113_ukut_iac_2012_kb_nepal.html

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.