A very large number of immigration applications are made in the post. In this important case the Upper Tribunal (President Blake and Judge Macleman) found that in the absence of corrective measures the Secretary of State for the Home Department’s system of processing payments connected to postal applications runs the risk of descending into procedural unfairness. The UT found that if the existing system for processing postal applications is not amended, more decisions stating that the consideration of applications was unfair and not in accordance with the law would follow.
The appellant (A) and his dependant wife were Nepalis who entered the UK under Tier 4 (General) student route: they made an in-time application to renew their visas (or “leave”) in May 2011. Subsequently, the SSHD corresponded twice with A about the payment of fees.
The initial letter said that if there was “an issue” with the application then it would become invalid and that A would be advised on “what action” he needed to take to make a valid application. One month later a second letter stated that the application was invalid because the credit or debit card intended to be used for payment/billing had been declined by the issuing bank: the details which were submitted failed to match those held by the bank and a fresh application was invited.
At the time of the first letter, A had a valid visa but he did not have a visa when the second letter arrived. After receiving the second letter, A diligently made a fresh visa application the very next day. That application was subsequently refused on 3 August 2011, wrongly without a right of appeal, for inadequate funds.
In pursuing his appeal, A relied on the statutory continuation of his leave and his statutory right of appeal. He also maintained that the initial rejection of his application as invalid was itself invalid because he had provided the right information for the fee to be paid.
Thus, A argued that (1) until the decision of August 2003 was made he enjoyed valid leave and (2) following BE (Application Fee: Effect of Non-payment)  UKAIT 00089 – since A had accompanied his application with the information and authorisation required for the SSHD to be paid – the notice invalidating his first application was itself invalid (this also meant that A qualified for the reduced maintenance level).
The First-tier Tribunal judge dismissed A’s appeal because in her view the case failed “for want of jurisdiction” – there was “no valid case” before her. The FTT also said that this was so even if it was the SSHD’s fault and her servant processing the application fee had made a mistake and entered incorrect information which, in the first instance in A’s case, caused payment to be refused by the bank.
A relied on Abiyat (Rights of Appeal) Iran  UKUT 314 (IAC) to argue that, despite the FTT’s conclusion, the UT was competent to hear the matter. It was pointed out in A’s grounds of appeal that at no point had the SSHD provided any evidence of the fact that A had not “accompanied” his application with the fee, whereas A had his unchallenged witness statement from FTT proceedings and bank statements exhibiting that he had possessed the required funds. Therefore, the regime in relation to fee payments fell “into simple administrative unfairness.”
The UT, at paragraph 16, found that A had a valid right of appeal from the FTT’s decision because the FTT could have declined jurisdiction by way of a statutory notice but it heard A’s appeal and delivered a determination on its findings. Therefore, the appeal was validly before the UT.
Moreover, at paragraphs 17–20, the UT decided that the FTT was wrong to think that it did not have jurisdiction because under regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 the requirement was for the fee to accompany the application (and not for the fee to be processed).
Since – under BE – A had authorised the SSHD “to receive the entire fee in question, without further recourse having to be made” to him, the UT (at paragraph 20) found that the FTT was wrong to decide that non-payment, even because of the SSHD’s fault, “was fatal to the validity of the application and of the subsequent appeal”.
The UT was “not prepared to assume that processing [of the fee] is infallible” (at paragraph 30). Tellingly, in the instant case, A was “an intelligent young man” who was studying for a business degree. He had acted efficiently in relation to his application by doing all that could be required of him: this meant that what he was saying was probably right. In any event, the SSHD could not furnish any information to the contrary.
I thought that this was a really great decision.
This is where things got really interesting because this case has ramifications for all postal applications where fees are charged. The UT noted that, owing to the fact that the fee was processed later, the system for handling postal applications was operated in such a way that the initial letter couldn’t/didn’t respond to whether the application was valid or invalid. Moreover, the fact that there were no instructions for applications to be processed prior to the expiry of the applicant’s visa (coupled with the security safeguards of shredding the fee payment page) meant that applicants were not given
- The opportunity to check the accuracy of the billing data and re-submit the application before their leave expired
- The opportunity to check whether the billing data was accurate after the processing has failed
- Any evidence-based specific reason why the processing has failed
The UT also observed that no record of what went wrong with the payment was kept and when asked to provide the billing page of the application, the SSHD/UKBA was unable to do so because the page had been destroyed. In comparison in-person applicants in Public Enquiry Offices knew within 15 minutes whether the fee for processing their visas had cleared: where the first attempt to collect payment was unsuccessful, the payment details could be checked or, to eliminate doubt, a new billing page could be completed.
For the UT, at paragraph 25, “the best evidence of why an attempt to process a payment failed would be the record kept by the processor.” For example, in order to make the process watertight, if applicants were invited to photocopy the billing page and the original billing page was still destroyed by the SSHD then “a subsequent version [of the billing page]” could be “put forward [by applicants] as a copy of the original”: clearly this wouldn’t work either!
Normally, the applicant bears the burden of proof – which can be discharged by producing an acknowledgement of receipt or proof of postage – for making a valid application, but since the SSHD alleged that the billing information was wrong in this case it was up to her to prove it because the applicant was not present when the transaction was processed (at paragraph 27).
Although the UT recognised that there were valid security reasons for destroying financial details relating to applications, at paragraph 29 it saw “no reason” why a more efficient system of handling fee and billing data could not be maintained in order to avoid disputes – such as the present one – in future.
Thus, the UT was convinced that the present method of processing payments for postal applications puts the evidence of why the payment failed and what the exact details were beyond the parties and the tribunal. Moreover, there was a “marked difference” in the way personal and postal applications were treated. The UT was “sufficiently impressed” by this difference “to indicate that it has every appearance of substantive unfairness” which required an “immediate review” so that time and money could be saved (at paragraph 31).
Therefore, to prevent the problems encountered in this case, the UT stressed that some changes needed to be made. Firstly, the fees should be processed immediately prior to an acknowledgement letter being sent. Secondly, the letter should be amended to acknowledge that a valid application was made. Moreover, where there was a failure to collect the fee for an in-time application, prompt communication with the applicant would provide an opportunity for the billing information to be checked or verified. Furthermore, in cases where the accuracy of payment details remained crucial to appellate rights and an applicant’s success on appeal, judges should be provided the original application form and the fee processing report.
Critically, at paragraph 33, the UT highlighted that
The absence of such measures, or cogent reasons why they cannot be adopted, may well result in a determination that the consideration of the application has been unfair and therefore not in accordance with the law: see Naveed (student – fairness)  UKUT 14 (IAC).
Accordingly, for the UT
1. If the SSHD asserts that an application was not accompanied by a fee, and so was not valid, she has the onus of proof.
2. The SSHD’s system of processing payments with postal applications risks falling into procedural unfairness, unless other measures are adopted.
3. When notices of appeal raise issues about payment of the fee and, consequently, the validity of the application and the appeal, Duty Judges of the FTT should issue directions to the respondent to provide information to determine whether an application was accompanied by the fee.