Application Fees & Refusals: The Impact of Basnet v SSHD [2012]

We’ve written before regarding the problems which can crop up with UK visa application forms, and a refusal due to issues with the visa fee is an all too frequent reality.  The UK Border Agency has previously adopted the stance that if an applicant does not pay the fee specified on their form, the application is invalid whatever the reason behind this payment failure.

Fortunately, the Upper Tribunal (Immigration and Asylum Chamber) case of Basnet (validity of application – respondent) [2012] UKUT 00113 (IAC) has provided some important guidance in this particular area, which we hope will assist applicants in a similar position.

The Case

Mr Kapil Basnet is a Nepalese citizen who, along with his wife, held leave to remain in the United Kingdom as a Tier 4 (General) Student until the 28th May 2011.  On the 13th May 2011 he and his dependant wife applied to extend their leave in the UK under Tier 4 of the Points Based System (PBS).

On the 17th May 2011, Mr Basnet received the standard response from the UKBA, which told him that ‘If there is an issue with the fee you have paid then your application will be deemed to be invalid and returned to you as soon as possible by post.’  The UKBA then wrote again to Mr Basnet on the 16th June 2011 and advised him that his application was invalid because, although his credit/debit details had been provided, ‘the issuing bank rejected the payment.’  Mr Basnet was not given any further, more specific explanation as to why the payment had been rejected, and was told only that it could be due to various different causes.

One Mr Basnet had received the second letter on the 21st June 2011, he then re-applied instantly on the 22nd June.  He was advised in a letter dated the 3rd August 2011 that since this application was made when he no longer had valid leave to remain in the UK, he did not have an established presence here and therefore did not qualify for a reduced level of maintenance funds.  Since the bank statements submitted by Mr Basnet were submitted to meet this lower level of maintenance funds, they did not meet the requirements.

Mr Basnet contended that he had provided the correct bank details in the first instance to the UKBA, and provided evidence to show that he had always held the requisite funds in his bank account.  He was advised that he had no right of appeal, however the Upper Tribunal disagreed with the First-Tier Tribunal on this point and allowed the appeal.   

The Judge’s Determination

When considering whether the first application by Mr Basnet was valid, the Upper Tribunal decided that ‘whether the first application was valid therefore depends not upon whether the payment was successfully processed, but on whether the application was accompanied by the fee.’  This finding was based on the Tribunal’s interpretation of the Immigration & Nationality (Fees) Regulations 2011 (2011 No 1055), which provide at Regulation 37 that ‘where an application to which these Regulations refer is to be accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee.’  It was noted that that requirement for the application to be ‘accompanied’ by the correct fee is met if the application includes proper authorisation which would allow the UKBA to take the entire fee in question.

 Therefore, the Upper Tribunal concluded that the ‘validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account.’  The Tribunal found that the onus was on the UKBA to prove that the application was not accompanied by the correct fee, and that in this case on the available evidence the application had been accompanied by the specified fee, and was validly made.

On this basis, the Upper Tribunal allowed the appeal.

The UKBA’s administrative procedures for handling application forms and the processing the accompanying fee were examined closely by the Tribunal when considering Mr Basnet’s case.  The Tribunal found that current procedure for rejecting an application where the correct fee cannot be collected is flawed in the following ways:

‘an applicant is thus:-

(i) Not given an opportunity to check the accuracy of the billing data and re-submit the application before his leave has expired;

(ii)       Not given the opportunity to check whether the billing data was accurate after the processing has failed;

(iii)     Not given any evidence-based specific reason why the processing has failed’.

The following measures were proposed by the Tribunal in order to prevent similar cases arising in future:

(i) The fee is processed immediately on receipt of the application and before an acknowledgment letter has been sent.

(ii) The standard letter is amended so that it constitutes an acknowledgement that a valid application has been made.

(iii) In cases of a failure to collect the fee in an application made in time, there is prompt communication with the applicant to afford an opportunity to check or correct the billing data.

(iv) In cases where the accuracy of the billing data is critical to the success of the application and the existence of a right of appeal, the original application form is securely retained along with the processing report, and is produced to the judge in the event of a challenge by way of appeal or by determination of a preliminary issue.

We agree unequivocally with the findings of the Upper Tribunal and its suggestions to make this particular area of the immigration system fairer for all applicants.  It remains to be seen whether any of these suggestions will be incorporated into the UKBA’s policy; as yet we have not seen any changes and applications are still being refused on the basis of an incorrect fee, without any proper explanation.  However, this case will surely prove a useful tool for challenging refusals which have been made under similar circumstances and we hope that it gives some hope to applicants who find themselves caught out in this way. 

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