Giving guidance on the scope of the earlier Basnet  UKUT 113 (IAC) principle concerning the rejection of applications as invalid, 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.
FTTJ Lewis heard the appeal in October 2015 and Kousar’s representatives failed to inform him that UTJ Rintoul had already determined in the course of judicial review proceedings that the refusal of the first application did not attract a right of appeal.
Significantly, six months in advance the tribunal gave directions for the Home Office to provide evidence of steps taken to access the fee from Kousar’s bank account. Failure to comply with these directions led the HOPO to concede that he was not in a position to identify any evidence or otherwise make any other argument to overcome the evidential burden resting on the Home Office identified in Basnet. Therefore FTTJ Lewis found that a valid fee was submitted along with the in-time applications, which in his view attracted a right of appeal. He disagreed with the second refusal that she had provided no evidence that she had been continuously engaged in business activity or met the requirements of the Immigration Rules under paragraph 41-SD(e)(iii)(1) of Appendix A. He allowed the appeal in light of the oral evidence.
However, the UT overturned the FTT’s decision because the first application was not an “immigration decision” under section 82(2) of the Nationality, Immigration and Asylum Act 2002 and therefore there had been no right of appeal to the FTT. Moreover, it held that was no right of appeal arose in relation to the second application because it had been made when K did not have leave to remain. UTJ Hanbury was critical of Mrs Kousar’s representatives since they failed to disclose to the FTT that she had been unsuccessful in an earlier application for judicial review where it was held that there was no jurisdiction for a statutory appeal. Applying Ved and Another (Appealable Decisions: Permission Application: Basnet)  UKUT 150 (IAC), the approach and principles developed by the UT in Basnet depended on there being “an appealable immigration decision”.
UTJ Hanbury’s decision was appealed further on “discursive” grounds and three issues needed to be addressed. First, whether the rejection of the original Tier 1 (Entrepreneur) application for further leave to remain was reasonable, fair, rational and/or proportionate, in light of the evidence and the consequential effects on Kousar’s rights. Second, whether she should have benefited from the Basnet principle – unfairness of treatment and the postal application – in line with the evidential flexibility policy under paragraph 245AA of the Immigration Rules. Third, whether in the context of the present case, as distinguished from other cases relied on by the Home Office, the facts and context showed that Kousar had been treated unfairly.
The Home Office relied on the UT’s decision. The first application was invalid and not an immigration decision. The second was out of time and generated no right of appeal. Basnet failed to bite and the complaint on evidential flexibility was not sustainable in light of Mudiyanselage  EWCA Civ 65 which demonstrated the wafer thin extent and effect of the concept in any event.
An important consideration in the processing of immigration applications is that the “tick in the box” is much more than just a mere formality because in reality it represents the applicant’s necessary authority to the Home Office’s “commercial partner” who is provided the detached financial pages of applications in order to process payment separately from consideration of the merits of an application. Omitting to tick the box is not triviality. Guidance notes and the application form itself stress the importance of ticking the box.
The Court of Appeal
Lindblom, Baker and Irwin LJJ remained unconvinced on the merits of any aspect of the appeal and therefore dismissed it in its entirety. Giving the only judgment, Irwin LJ gave guidance on the reasonableness, fairness and proportionality of the rejection of the original application. He further addressed the present status of Basnet and evidential flexibility. The court’s point of departure remained that the Home Office could not be stopped from taking a jurisdictional point because it had not been taken in the FTT.
Overall, tribunals are creatures of statute and so there either is or is not jurisdiction before them and it cannot simply be created by consent or waiver of a point, let alone a failure by the respondent Home Office to take the point before the FTT. Irwin LJ explained that it was uncontroversial that the PBS is “detailed, objective and bureaucratic” and it thus seeks “to reduce the exercise of discretion” because “the system promotes clarity over flexibility.”
(i) Fairness, Reasonableness, Proportionality
Insofar as the fairness, reasonableness and proportionality of the rejection and invalidity of the original application for leave to remain were concerned, Irwin LJ held that Kousar had failed to give authority to transfer the relevant fee in the form specified. He also agreed with the Home Office that such specification was necessary since the financial pages of the form relating to the fee must be sent to a “commercial partner” for processing. In Mudiyanselage it was Underhill LJ’s view that authorities such as Mandalia  UKSC 59 leave no doubt at all that “occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process” and thus it was crucial to remember that the onus is upon applicants to ensure that the full requirements of the PBS are diligently discharged.
While the complexity of the PBS is “regrettable” it is nevertheless true that “a good deal of care and attention to detail” will usually make “it possible to get it right.” Observing that trained officials, who are not lawyers, process very large volumes of PBS applications, Irwin LJ held that:
39. … Given that fairly large sums of money are involved, I do not find it at all surprising that there is a clear and specific procedure for authorisation: anything else would be a likely source of confusion and risk. I see nothing unfair or disproportionate about such a process and certainly nothing unlawful about it.
40. Nor do I see that correcting such an error could possibly fall within the “evidential flexibility” policy as set out above. This is not “missing information” which is present in other parts of the form. It is a missing authority.
The eleventh hour nature of the application compounded the problem and the court commended the authorities for the speed of their reaction because they had informed Kousar of the problem with three days. Irwin LJ noted that had the application been made a week in advance of the expiry of her leave, this problem would have been rectified in time. There was nothing unfair or disproportionate about the process. There was also an obligation on Kousar’s lawyers to draw the FTT’s attention to the existence of the stayed judicial review proceedings and the extant ruling. It was likely that events would have taken a different course if that had happened. Had the HOPO been informed of the ruling, they would have also been obliged to alert the FTT to it.
(ii) Analysis of Basnet
The court held that Basnet must be considered alongside the later decision in Mitchell (Basnet Revisited)  UKUT 562 (IAC). The tribunal in Basnet held that a right of appeal does not arise unless the applicant first makes a “valid application within his period of leave”. Irwin LJ noted that even in Basnet the “evidential burden” only shifted since clear evidence existed that payment had been authorised and the funds were available but that crucially the Home Office system destroyed the evidence which would corroborate or contradict that the payment had been authorised. It was only on those clear facts that the tribunal declined to “assume that processing is infallible” and therefore decided that the application was valid. Afterwards, the Home Office altered its system of record-keeping to retain the copy forms for eighteen months. The overall context led Irwin LJ to reason that:
49. In my view, the approach of the Upper Tribunal in Mitchell (Basnet Revisited) was entirely correct. It is only when an Appellant can demonstrate that he or she has taken the necessary steps to authorise and effect payment that it falls to the Secretary of State to show, by further evidence, that the application was nevertheless invalid on the ground that the application fee was not “paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes”, as Rule 34A stipulates.
In the present case, Kousar could not demonstrate that she had met all the above criteria because she had not authorised payment. It was possible for her to do so and if she had authorised payment then it would have been effective because she had sufficient funds at her disposal. Irwin LJ reiterated the point that “if the error had been made earlier, it could have been corrected” but that since “it was all done at the very last minute” the application was invalid; it attracted no right of appeal and the FTT had no jurisdiction to hear an appeal.
(iii) Evidential Flexibility
Evidential flexibility also failed to save the day because the present case did not involve missing information; for example, a missing document in a sequence of bank statements or something similar. Since it concerned a missing authorisation, it was clear from the authority of Mudiyanselage at paragraph 54 that there is no longer a general policy to allow correction of minor errors because evidential flexibility will only apply in the particular cases provided for by paragraph 245AA.
This judgment shows that applicants must ensure that payment is properly authorised because any excuses in that regard are unlikely to save them from the fate that befell Mrs Kousar and her family. It is difficult to disagree with the Court of Appeal’s view that payment can only be made if an applicant has authorised it. The fact that the fee is charged by a third party organisation partnering with the Home Office also stacked things up against the appellant in this case.
Making the application at the very last minute sealed the fate of this family and it is worth taking Irwin LJ’s free advice that the best thing to do is to apply a little bit in advance of the expiry of one’s leave rather than on the last day. It is always a good idea to be very clear and precise in completing the payment page because devastating consequences can arise by providing the wrong details or failing to provide authority for the fee to be paid. If an applicant has instructed solicitors, then surely the buck must stop with them because it is pretty darn negligent not to spot that the authority for payment to be made has not been ticked off. Rather than being sorry, it is best to be safe and tick all the right boxes.
This judgment involved the rigid and bureaucratic PBS, which erases any discretion and permits occasional harsh outcomes because such sacrifices must be made in exchange for the advantages of an efficient system. Despite the extremely harsh outcome in the present case, it is very hard to fault the court’s approach. Notably, most application forms clearly advise applicants “if no fee is ticked we cannot take a payment and your application will be rejected as invalid.” Therefore, the principle in this case must surely apply all across the board. One way to get past this problem is to make an online application so that the fee can be paid in real time saving the need for a payment authority box to be ticked.
Overall, in the crucial guidance imparted in this judgment, the Court of Appeal makes it very clear indeed that nothing short of a strict liability rule applies to correctly filling out the payment details and authorising payment to be taken. Therefore, if you fail to ensure that the box is ticked, then it is your problem and not the problem of the Home Office or the courts. One thing is for sure. Ticking the right box and making an early application are simple and easy things to do rather than litigating the omission in a multiplicity of venues.
Anyone can make a mistake. Indeed, as the case of Professor Mariana Mazzucat rather vividly demonstrates just a simple mistake such as making “4” look like “9” in the credit card details can produce unexpected and harsh consequences for even one of the world’s leading economists. So it is probably a safe bet to get all your numbers straight by being extremely accurate, diligent and sharp when completing and submitting your application.