November 13, 2018

Rejection of applications as invalid,

Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462 (07 November 2018)

Giving guidance on the scope of the earlier Basnet [2012] UKUT 113 (IAC) principle concerning the the Court of Appeal has unanimously held that the rejection of an application owing to the applicant’s failure to tick the right box was lawful and the evidential flexibility policy did not apply. Irwin LJ said that the FTT had no jurisdiction to hear an appeal against an application in the Tier 1 (Entrepreneur) category of the Points-Based System (PBS) that had been declared invalid where the applicant had not been able to show that the necessary steps were taken to authorise and effect payment of the application fee because of a failure to tick the correct box authorising the Home Office to take payment. >The court took the opportunity to reiterate that the PBS is a deliberately complex set of rules. Significantly, the system is intentionally bureaucratic with the result that “the process of acquiring or demonstrating the acquisition of the relevant points is painstaking.” Prior to attempting to switch into the Tier 1 (Entrepreneur) category, Mrs Shabana Kousar entered the UK as a Tier 4 (General) student in December 2010 and renewed her student leave for a further two years until August 2014. Upon making her last minute Tier 1 (Entrepreneur) application, Mrs Kousar correctly completed the form but she overlooked the essential requirement that she needed to tick the box giving authority for the £1,093 fee to be paid.

No dispute arose about her ability to pay the fee or regarding the fact that her dependant husband and two children’s linked applications did not suffer from this defect. Whereas the last minute Tier 1 (Entrepreneur) application was made on 14 August 2014 – a day prior to the expiry of Kousar’s student leave – the Home Office for once acted dutifully and corresponded with her on 15 August 2014 advising her that the requirements of the relevant fees regulations had not been met and therefore her application was invalid. The clearance of her family’s fees did not matter and the sum of £3,279 was refunded into her account since the main applicant’s application had not been charged owing to the failure to tick the right box.
A fresh application, which was refused on the merits, was validly made after Kousar’s leave had run out. She also unsuccessfully challenged the first refusal by way of judicial review and the UT found that she had no right of appeal and that her application was not validly made but that the refusal of the second application on the merits was arguably not unlawful.
The judicial review claim was eventually struck out in January 2016 but in December 2014 Kousar had also quietly filed an appeal against the first refusal to the FTT