Zahoor v Secretary of State for the Home Department [2014] EWHC 2751 (Admin)

2014] EWHC 2751 (Admin)Case No CO/14083/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 August 2014
Before
HIS HONOUR JUDGE ANTHONY THORNTON QC
Between
Farhan ZahoorClaimantSecretary of State for the Home DepartmentDefendant
Mr D Seddon (instructed by Farani Javid Taylor Solicitors) for ClaimantMr Thomas Roe QC (instructed by the Treasury Solicitors) for Defendant
JudgmentSummary
[1]This judgment is concerns the judicial review of a decision of the SSHD to refuse an application for further Leave to Remain on the grounds that the claimant had made his in-country application without having Leave to Remain because he had submitted a previous application which had been invalid due to the non-payment of the application fee.[2]The application for a judicial review of that decision was allowed. The judgment reaches the following conclusions of law:(1) The correct test to be applied by the SSHD in 2011 was whether the application fee had been accompanied by the specified fee which meant, in this context, whether the billing data supplied with the application was such as would enable the SSHD to receive the entire fee in question without further recourse having to be made by the SSHD to the payer. That matter might be the subject of evidence in order to establish whether that requirement had been fulfilled.(2) The evidential burden of proving what billing data had been provided on the form and whether that billing data had been correctly used in processing the fee was with the SSHD. The SSHD had failed to establish these matters and the claimant succeeded in showing that the application was valid. In consequence, the claimant’s LTR had been extended under section 3C of the Immigration Act 1971 following his application and it remained extended after the SSHD’s decision that the application was invalid.(3) The claimant’s further application for LTR made after the SSHD’s invalidity decision was on analysis an application to vary an existing application for LTR. The claimant was entitled to vary his application by virtue of section 3C(5) of the Immigration Act 1971 and his extended LTR remained in being until his further application had been decided.(4) The SSHD’s decision that the application was invalid was taken on the wrong basis, namely on the basis that the fee had not been paid and not on the correct basis that the application had to be accompanied by the specified fee, namely by billing data that would yield the application fee.(5) The claimant was entitled to prove that the specified fee had accompanied the application because the SSHD’s decision was not determinative of that question, because the application remained for decision after that decision and because his extended LTR survived that decision. He was also entitled to prove that he had made a valid application as part of a subsequent application or in proceedings arising out of that application and without having challenged or had set aside the first decision.(6) The FtT’s jurisdiction decision that the claimant’s appeal against the decision that he had made an invalid application was not an immigration decision and that the FtT had no jurisdiction to hear it was wrong in law.[3]The result of the judgment was that the decision granting the claimant LTR under appendix FM of the IRs instead of under paragraph 284 of the IRs was set aside and the SSHD was ordered to reconsider the decision on the basis that the SSHD should decide the applicant’s application by reference to paragraph 284 and its discretionary powers and on the further basis the decision as to the nature and length of the LTR should be considered by reference to the unfairness of the claimant’s treatment with regard to the application. Consideration should be given to the grant of immediate ILR.[4]BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089, Kapil Basnet v Secretary of State for the Home Department [2012] UKUT 00113 (IAC) and Naveed (student – fairness) [2012] UKUT 14 (IAC) approved and followed. His Honour

Judge Anthony Thornton QC:

[1]Introduction Mr Farhan Zahoor seeks a judicial review of the decision of the Secretary of State for the Home Department (“SSHD”) dated 5 October 2012 granting him 30 months further or limited leave to remain (“LTR”) pursuant to his application for LTR dated 20 April 2011. Permission to apply for judicial review was granted by Judge Inglis on 28 March 2013.[2]The SSHD’s decision to grant Mr Zahoor LLR was made pursuant to paragraph D-LTRP.1.2. of Appendix FM (“FM”) of the Immigration Rules (“IRs”). It carried with it the expectation of being granted 3 further successive 30-month periods of LTR followed by the grant of indefinite leave to remain (“ILR”) after Mr Zahoor had completed 120 months residence pursuant to those grants of LTR if, at the time of each further grant, he met the relevant IRs criteria applicable to such grants.[3]Mr Zahoor contends that the SSHD should have considered his application and granted him LTR on the basis that his application had been made whilst he was lawfully in the United Kingdom (“UK”) so that he should have been granted 24 months LTR pursuant to paragraphs 281 – 289 of the IRs as they were applied to such applications with the expectation of being granted ILR within those paragraphs on the expiry of that LTR having completed 24 months residence pursuant to that grant of LTR.[4]Alternatively, he contends that his application should have been considered on the basis that his application had been made before 9 July 2012 as a human rights claim under article 8 of the European Convention on Human Rights (“ECHR”) without reference to FM and that he should have been granted 3 years discretionary leave to remain (“DLR”) with the expectation of being granted a further period of 2 years DLR on the expiration of that DLR and then ILR on the expiry of that second grant of DLR having completed 60 months residence pursuant to those grants of DLR.[5]In the further alternative, he contends that his application should have been considered as an exceptional case within FM and that he should either have been granted ILR immediately or 24 months LTR with the expectation of being granted ILR thereafter having completed 24 months’ residence pursuant to that grant of LTR or, alternatively, 3 years DLR with the expectation of being granted a further period of 2 years DLR and then ILR on the expiry of that second grant of DLR having completed 60 months’ residence pursuant to those two grants of DLR.[6]The SSHD contends in response that it was correct for his application to be considered pursuant to FM, that he was granted 30 months LTR following the correct application of the relevant provisions of that appendix, that it was also correct that his application had been made on the basis that he was not lawfully in the UK when that application was made because his original LTR had not been extended by his application dated 30 January 2011 because that was invalid and that the transitional provisions concerning applications that had been made before 9 July 2012 were not applicable and that his case not exceptional.[7]In summary, this judicial review raises the question of what was the proper basis for the SSHD to undertake the reconsideration of its refusal of Mr Zahoor’s application dated 20 April 2011. In considering that issue, the following questions arise:(1) Whether the UKBA should have refused to accept Mr Zahoor’s first application when he attended the Croydon PEO on 29 January 2011;(2) Whether Mr Zahoor’s second application dated 30 January 2011 was invalid on the grounds that it was not accompanied by the specified fee;(3) Whether the SSHD should have treated Mr Zahoor’s third application as an application to vary the second application and, if not, whether it was entitled to refuse it in its decision dated 12 October 2012 because he did not have LTR at the time it was submitted; and(4) If Mr Zahoor is entitled to LTR, on what basis should the SSHD decide the nature and length of that LTR.[8]Permission to apply for judicial review was granted by Judge Inglis on 28 March 2013 on the basis that it appeared arguable that the SSHD’s decision under challenge should have been made in accordance with the rules and guidance in force prior to 8 July 2012. That view must have been based on the view that Mr Zahoor had reasonable prospects of showing that that decision should have been made on the basis that Mr Zahoor had LTR at the time that he made both the second and third applications.[2]The facts[9]Mr Zahoor was born on 18 October 1983 and is now aged 40. He is a Pakistani national. In 2005, he obtained the degree of Batchelor of Technology in Pakistan. He first arrived in the UK on 30 June 2006 with leave to enter as a student until 30 June 2007. On 27 September 2007 he was granted LTR until 30 November 2008 and on 16 February 2009 was again granted LTR until 31 October 2010. In about January 2010, he met his wife Mrs Sweta Gupta who was a British citizen who had lived in the UK since about 1989. They became engaged in June 2010 and submitted an application for a Certificate of Approval for Marriage in August 2010 which was approved by the UK Border Agency (“UKBA”) on 7 September 2010. On 27 September 2010, he applied for and was granted LTR as a Tier 4 student until 30 January 2011. On 28 October 2010, he and Mrs Gupta were married at Kensington & Chelsea Registry Office in London. Mrs Gupta, or Mrs Zahoor as she became, had a son from a different relationship who was born on 21 March 2008, who is also a British citizen and who lives with his mother and Mr Zahoor. It is clear from the evidence that Mrs Zahoor’s son has formed a close relationship with his step-father.[10]First PEO application dated 21 December 2010. Following his marriage and the forthcoming expiry of his then current LTR, Mr Zahoor consulted Mr Muhammad Anjum on about 21 December 2010. Mr Anjum was registered as a Regulated Immigration Adviser practising in the name of Future Immigration and he was, in December 2010, practising in that capacity from 335 Cranbrook Road, Ilford, Essex. Mr Anjum advised Mr Zahoor to submit an application for LTR on a LTR (M) application form pursuant to paragraph 284 of the IRs as the spouse of a person present and settled in the UK. For that purpose, he needed to show amongst other requirements not relevant to this case that he had previously been granted limited LTR in the United Kingdom in accordance with any of the provisions of the IRs for a period in excess of 6 months, that his marriage was both valid and subsisting and that his application had been made at a time when he currently had LTR.[11]All dealings relating to Mr Zahoor’s application for LTR as a spouse were dealt with by the UKBA which was an Agency within the Home Office for which the SSHD was responsible. Mr Anjum advised Mr Zahoor that he should make a personal application for LTR at UKBA’s Croydon Public Enquiry Office (“PEO”). A PEO application was a premium service which enabled an application to be made in person by prior appointment. At that appointment, the applicant’s documents were first checked to ensure that the required documents had been provided and looked in order, the application fee was then obtained by a fee processing clerk and, if obtained, the application was then fully processed with the aim of providing the applicant with his visa on the same day or, if this could not be provided then, within a short period thereafter. An enhanced fee was payable for this service.[12]Mr Zahoor paid Mr Anjum a sum to cover both his services and the enhanced application fee that would be paid to the UKBA when the PEO application was submitted. He also signed a LTR(M) application form that Mr Anjum had filled out and dated 21 December 2010. Mr Anjum made an appointment for Mr Zahoor for a personal application with the Croydon PEO for 29 January 2011. The appointment was attended by Mr and Mrs Zahoor accompanied by Mr Anjum. On arrival, Mr Zahoor presented to the UKBA counter clerk the application form that had previously been prepared and which he had dated and signed for initial checking. A copy of the form that he presented was in the hearing bundle and it is clear from that copy that the correct form was used and that it had been correctly filled out. The billing data provided on the form to enable the UKBA to obtain payment of the application fee were for a debit card for a bank account held in Mr Anjum’s name.[13]Mr Zahoor’s witness statement dated 4 March 2014 explained that the counter clerk had undertaken the initial check of the documentation refused to accept the application form because it was incorrectly dated. An application for LTR must be made within the 28-day period prior to the expiry of the current visa and the UKBA’s decision to reject the application was no doubt taken because the form was dated 21 December 2010 which was more than 28 days before Mr Zahoor’s then current LTR would expire on 30 January 2011. Because of this apparently minor defect, Mr Zahoor was unable to lodge his application with the UKBA for the fee to be processed and then for his visa to be granted. It was not clear why he had not been allowed to amend the date on the form in the presence of the counter clerk or to fill out a further correctly dated form and then lodge his application there and then. Either of these options would have been obvious, sensible and less cumbrous ways of proceeding and would have allowed Mr Zahoor to obtain his visa on 29 January 2011.[14]Second application dated 30 January 2011. On leaving the PEO appointment, Mr Anjum advised Mr Zahoor that a postal application should be submitted to the UKBA on the following day given that his then current LTR expired on 30 January 2011. An application could only be considered under paragraphs 281 – 289 of the IRs if it was made whilst the applicant still had LTR. If such an application had been made but had not been decided or withdrawn when an existing LTR expired, that LTR was automatically extended until the application had been decided or withdrawn Section 3C of the Immigration Act 1971. . A second application form dated 30 January 2011 was prepared by Mr Anjum, signed by Mr Zahoor and then posted by Mr Anjum to the SSHD on 30 January 2011. It would appear that Mr Anjum had moved his office address because the form gave a different address for Future Immigration’s office, namely 94 Grosvenor Road, Dagenham, Essex, from the address provided on the first application. UKBA received the form on 31 January 2011 as is clear from the date stamp on the first page that it subsequently returned and from the UKBA’s letter to Mr Anjum acknowledging its receipt that are both dated 31 January 2011. Mr Anjum had inserted onto the application form the billing data for the debit card of the bank account in his name at the High Road Ilford branch of Lloyds TSB bank that he used when providing immigration services.[15]Second application decision dated 20 March 2011. The UKBA did not process collection of the application fee until about 20 March 2011 when it informed Future Immigration in a standard decision letter on the same date that Mr Zahoor’s application was invalid because the application fee had not been paid because, although the debit card details had been provided, the issuing bank had rejected the payment. The UKBA’s standard practice at that time when something had gone wrong with the payment of the application fee by the bank or credit card company was to keep no record of what had gone wrong and to routinely destroy the page of the application form containing the applicant’s debit or credit card billing data See Kapil Basnet v The Secretary of State for the Home Department, UT sitting in Edinburgh on 7 February 2012, [2012] UKUT 00113 (IAC), per Blake J, President at paragraph 22. .[16]There is no evidence as to when this letter was sent out by UKBA or when it arrived at Future Immigration’s offices. 20 March 2011 was a Sunday so that the earliest that it would have been sent out was 21 March 2011 but in the absence of evidence, it is possible that it was not sent out for several days thereafter. Equally, the letter could have taken several days to arrive, given that it could have been in the post over the following weekend. Mr Anjum neither provided a copy of UKBA’s letter to Mr Zahoor nor informed him that it had been received and he only learnt about the alleged invalidity of this application when he telephoned the UKBA in May 2011 to enquire about its progress.[17]The letter referred to the “attempted application which you made by post on 27 January 2011” and it concluded with these words:
“The specified fee has not been paid in connection with your client’s attempted application which you made by post on 27 January 2011. We do not consider that an exception to the requirement to pay the fee applies in this case, and therefore your client’s application is invalid and we are returning the documents. … Although credit/debit card details have been provided, the issuing bank rejected the payment. There may have been insufficient funds in the account or the details provided did not match tine information held by the bank. For security reasons the cardholder’s name, address, expiry date and issue number supplied on the payment form must correspond to the information held by the issuing bank. If the details fail to match the bank will reject the payment. The fresh application should be returned to the address given on the application form. … If [Mr Zahoor] still wishes to make an application, you must return his fully completed application form with the appropriate fee to the address given on the application form. Italics added. ”
[18]The letter only enclosed a copy of the first page of the application form despite it stating that the entire form was being returned. Thus, copies of the other 23 pages of the form that included the page containing the debit card data that were to be used by the UKBA in obtaining payment were not provided and were not subsequently disclosed. In March 2011, it was the UKBA’s standard practice when informing an applicant that his application was invalid because the issuing bank had rejected payment to return the application in its entirety save for the page containing details of the bank or credit card to be used for payment which was withheld for security reasons and then shredded ibid., paragraph 22. . It is to be inferred that, on this occasion, the UKBA not only withheld and shredded the payment page of the application form but also the other 22 pages of that form that should have been returned to Future Immigration.[19]The UKBA has never explained the obviously mistaken reference in the letter to an attempted application that had been made by post on 27 January 2011. This was a mistake because the application that was being returned had been both dated and sent by Future Immigration to UKBA on 30 January 2011 who had received it on 31 January 2011. It is possible, therefore, that the official processing the fee payment mistakenly took the billing data from a different application that had been posted on 27 January 2011 and that that mistake had led to the fee payment rejection.[20]Mr Zahoor’s evidence was that Mr Anjum told him that he had not kept a copy of this postal application but had provided him with the debit card data it contained and with the account and bank number of the Lloyds TSB bank that that debit card related to. Lloyds TSB provided Mr Anjum under cover of a letter dated 21 February 2011 with details which showed that the account to which this debit card related had maintained a minimum balance of £574.97 for the entire period from 29 January 2011 until 22 March 2011 which was available for use to pay the application fee had that been claimed. It follows that had that account been correctly accessed by the UKBA on 20 March 2011 or on any other date in the period up to and including 20 March 2011, the bank would have provided it with a payment of £500 for the specified application fee.[21]Third application dated 20 April 2011. Future Immigration sent the UKBA a further third application for LTR in Mr Zahoor’s name that was dated 20 April 2011 which was a Thursday. There is no evidence when this was posted but it was received by the UKBA on 21 April 2011 This was admitted by the SSHD in paragraph 2 of the summary grounds of defence. . It must therefore have been posted on 20 April 2011 which was the day it was made IR 34G(i). . Its receipt was acknowledged in the UKBA’s letter addressed to Mr Zahoor but with Future Immigration’s address dated 28 April 2011.[22]The SSHD had introduced two changes relating to LTR applications with effect from 6 April 2011, namely an increase in the application fee from £500 to £550 and a change in the format of the application form. These changes were explained in the UKBA’s letter notifying Mr Zahoor that the second application was invalid. That letter also explained that the existing forms could be used for applications made on or before 27 April 2011.[23]Mr Anjum complied with these changes. This is clear even though no copy of the application was provided to the court by the parties despite a copy having been provided to the Firt-tier Tribunal ("FtT") hearing on 24 January 2012 See paragraph 11 of the FtT decision promulgated on 7 February 2012. . So far as the fee was concerned, Future Immigration paid the appropriate fee by enclosing a cheque for £550 with the form. Mr Anjum had obtained the cheque sent with the application from his bank and a copy was contained in the hearing bundle. The cheque was drawn on the same account as the one whose debit card data had been enclosed with the second application. The cheque had been drawn by Mr Anjum, was dated 20 April 2011 and provided for payment of £550 to “Home Office Leave to Remain”. The UKBA confirmed receipt of this application in a letter dated 28 April 2011. Mr Anjum complied with the requirement that the correct form had to be used even though he may have used the old form because the application was sent prior to 27 April 2011 as permitted by the transitional provisions set out in the letter dated 20 March 2011.[24]The UKBA’s letter stated that the application had been made by Mr Zahoor. However, since Mr Zahoor was unaware that it had been made and only first became aware of it when he contacted the UKBA in May 2011, he could not have signed it before it was sent out. Regulation 16(1)(a) of the Immigration (Leave to Remain)(Prescribed Forms and Procedures) Regulations 2007 (“the Regulations”) SI 2007/882 made pursuant to section 31A of the Immigration Act 1971. and IR 34A(vi)(b) imposed a mandatory requirement that the form should be signed by the applicant. However, the UKBA accepted the application as being a valid application having both processed it and successfully banked the cheque that Mr Anjum had enclosed and which had been cleared by Lloyds TSB on or about 24 June 2011. The UKBA then informed Future Immigration in a letter dated 24 June 2011 that it had received the application and that it was valid.[25]It would seem, therefore that Mr Anjum responded to the UKBA’s letter dated 20 March 2011 by sending back the same documentation that had been used in making the second application which had been filled out in an identical manner to that application save that he had signed the application on behalf of Mr Zahoor, had dated it 20 April 2011 and had provided a cheque for £550 for the application fee drawn on the same account whose debit card data had been provided in the second application authorising payment by debit card. This action appears to have been dictated by Mr Anjum’s belief that his bank had not refused payment on 20 March 2011 and by the terms of the UKBA’s letter dated 20 March 2011 which stated that if Mr Zahoor wanted to make an application he should return a fully completed application form, that one of the newly introduced application forms would have to be used for applications sent after 27 April 2011 and that the application fee had been increased to £550 from 6 April 2011.[26]Mr Zahoor informed about the third application. Mr Zahoor became anxious at not hearing about the fate of his second application. He rang the UKBA sometime in May 2011 to enquire about its progress and was informed that it that that was invalid because the payment of the application fee had not gone through so that the application had been returned to Future Immigration. He was also informed that he was an overstayer and that his representative had again submitted the application on 20 April 2011 and that its receipt had been acknowledged by the UKBA on 28 April 2011. Mr Zahoor immediately contacted Mr Anjum who confirmed this sequence of events and provided him with the UKBA’s letter of acknowledgement of the third application.[27]Third application decision dated 16 November 2011. The third application was not processed until 16 November 2011 when the UKBA sent Future Immigration a notice of decision under cover of a letter of that date. The letter informed Mr Zahoor that his third application had been refused under paragraphs 284 and 286 of the IRs whose relevant provisions were to the effect that his application for an extension to stay as the spouse of a person present and settled in the UK had to be refused since his LTR had expired before he had made his application. The notice also informed Mr Zahoor that he had unlawfully remained in the UK after his second application had been refused so that he had no right of appeal against this refusal, he had to leave the UK forthwith and enforcement action would be taken against him if he failed to leave.[28]The relevant part of that decision was as follows:
“An application was made on behalf on 21 April 2011. However, your leave to remain expired on 30 January 2011. You therefore did not have leave to enter/remain at the time of your application.”
This was an error. The application was made when it was posted to the UKBA on 20 April 2011, It was received by the UKBA a day later on 21 April 2011.[29]Appeal to FtT against the refusal decision. Future Immigration forwarded these documents to Mr Zahoor. Their contents must have come as a considerable shock to him and he immediately consulted Lords Solicitors, who were based in Ilford, Essex. On their advice, Mr Zahoor issued a notice of appeal with the FtT on 24 November 2011 against the SSHD’s decision. His grounds of appeal were that his third application dated 20 April 2011 was part of, or was to be treated as being the same as, or as amending, his second application dated 30 January 2011. He therefore contended that he had had LTR when he submitted the third application and should have been considered by the UKBA as having submitted the third application at a time when he was not in breach of the IRs. He also made an article 8 claim to be entitled to DLR due to the disproportionate effect on his family life that would occur if he was to be removed to Pakistan as a result of the expiry of his LTR, if indeed it had expired.[30]On 5 December 2011, IJ Duveen made this procedural direction:
“There is an arguable issue in this case as to whether [Mr Zahoor] had leave to be in the UK when the application was first made. The appeal should proceed so that the legal arguments can be put before the immigration judge at the substantive hearing.”
[31]The hearing took place on 24 January 2012. Mr Zahoor was represented by a legal representative from his solicitors and the SSHD was unrepresented. IJ Black, directed that he would first consider as a preliminary issue whether or not Mr Zahoor had a right of appeal. He did not further define the issue but it is clear that the issue he had identified as the one he was first going to decide was whether the decision dated 16 November 2011 was an immigration decision which was a question that would be determined by whether Mr Zahoor had leave to be in the UK when the application dated 20 April 2011 had been made.[32]FtT’s jurisdiction determination. IJ Black decided in a preliminary issue determination dated 7 February 2012 that the FtT had no jurisdiction to entertain the proposed appeal. The reasoning was somewhat convoluted but its gist was as follows:(1) Mr Zahoor had had an extant leave to remain when the second application was made on 30 January 2011. However, the UKBA treated that application as being invalid by its decision to refuse to consider that application that had been communicated to Mr Zahoor in its letter dated 20 March 2011.(2) Since the UKBA had treated Mr Zahoor’s second application as being invalid, it was to be treated as if it had never been made.(3) Mr Zahoor’s section 3C leave extending his LTR beyond 30 January 2011 until his second application was decided would not have come into being until after he received a decision on that application. No decision on the application was made because the appellant had subsequently submitted his third application – which was a fresh application - which was made after his existing leave had expired.(4) Since the second application was to be treated in that way, there was no application to which section 3C had applied so that Mr Zahoor’s leave to remain that expired on 30 January 2011 had not been extended.(5) Thus, Mr Zahoor applied for LTR in his third fresh application dated 20 April 2011 at a time when he had no LTR. It was therefore an application which had to be refused.[33]It followed that the refusal of 16 November 2011 was not an immigration decision because it was a decision that the third application for a variation of LTR should be refused because the application had been made at a time when the applicant did not have LTR It was therefore not a decision covered by section 82 of the Nationality, Immigration and Asylum Act 2002 which defines an immigration decision. .[34]It followed that Mr Zahoor had no right of appeal since the jurisdiction of the FtT was limited to immigration decisions.[35]The decision ended with these words:
“28. It is my conclusion that [Mr Zahoor] does not have a have a right of appeal. The appropriate venue for consideration of these issues would be by way of judicial review as regards the fairness of the decision made or [Mr Zahoor] can raise article 8 once he faces an imminent prospect [of] removal.”
[36]The FtT’s determination did not consider the contentions put forward on behalf of Mr Zahoor that the second application dated 30 January 2011 was valid when it was made because it was accompanied by the specified fee, that the SSHD was incorrect in concluding that it was invalid, that Mr Zahoor’s LTR had in consequence been extended by section 3C of the Immigration Act1971 until the second application was determined, that the second application was varied by the third application and that the second application as varied was only decided by the SSHD when making the decision dated 16 November 2011. All these contentions should have been considered by the immigration judge since they had been referred to him for decision by the procedural direction dated 5 December 2011.[37]The immigration judge erred in not considering Mr Zahoor’s contentions and in concluding that the FtT had no that Mr Zahoor was not seeking to appeal an immigration decision so that it had no jurisdiction to consider the appeal. In fact, the SSHD’s decision under challenge was an immigration decision since it was a decision that had refused to consider Mr Zahoor’s application for an immigration decision on the legally erroneous ground that he did not have LTR when he had made his application. Such a decision is itself an immigration decision. It followed that the proposed appeal was within the jurisdiction of the FtT since it was an appeal against an immigration decision that was being brought on the ground that it was not in accordance with the IRs See paragraphs 67 - 68 below for a discussion about section 3C and the immigration judge’s reasoning as to its effect in relation to Mr Zahoor’s second application. .[38]Application to FtT for permission to appeal the FtT decision. An application for permission to appeal the FtT’s jurisdiction determination to the Upper Tribunal (Asylum and Immigration Tribunal) (“UT”) was lodged on behalf of Mr Zahoor with the FtT on 9 February 2012 by his solicitors but the FtT notified Lords on 14 February 2012 that the application could not be entertained because it was an attempt to appeal an excluded decision, namely a procedural, ancillary or preliminary decision of the FtT and was therefore one that could not be entertained by the UT Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 and paragraph 3(m) of the Appeals (Excluded Decisions)Order 2009. The conclusion that the FtT was in error in declining jurisdiction and then in error in refusing to entertain an application for permission to appeal is based upon and adopts the reasoning of the UT in Kapil Basnet v SSHD [2012] UKUT 00113 (IAC) which is dealt with in paragraphs 67 – 68 below. . In fact, the proposed appeal was an appeal against the determination of the FtT of an appeal, albeit in a determination that the FtT erroneously described as being a preliminary determination that had been referred for a determination by the FtT by the procedural direction dated 5 December 2011. The proposed appeal was therefore not an excluded appeal and the permission application should have been entertained The conclusion that the FtT was in error in declining jurisdiction and then in error in refusing to entertain an application for permission to appeal is based upon and adopts the reasoning of the UT in Basnet. .[39]Mr Zahoor’s detention 14 – 16 February 2012. On the same day as the FtT declined to entertain Mr Zahoor’s application for permission to appeal, the UKBA served him with notices of its intention to remove him to Pakistan and to detain him pending that removal. He was detained on 14 February 2012 and interviewed by the UKBA in detention and was then released on temporary admission on 16 February 2012. Since he his extended LTR was still running, this detention would appear to have been unlawful.[40]First judicial review filed on 22 February 2012. Mr Zahoor consulted a second firm of solicitors, Farani Taylor, following his receipt of the FtT’s decision refusing to entertain his application for permission to appeal. That firm advised him that he should immediately seek a judicial review of the SSHD’s refusal decision dated 16 November 2011. A pre-action protocol letter dated 17 February 2012 was sent to UKBA. This was followed by the filing of Mr Zahoor’s first judicial review claim on 22 February 2012.[41]Mr Zahoor challenged the SSHD’s decision dated 16 November 2011 on two bases. Firstly, the decision had been erroneously based on the contention that Mr Zahoor did not have LTR when submitting his second application on 20 April 2011 because his LTR had already expired on 30 January 2011. In opposition to that contention, Mr Zahoor contended that his LTR had not expired on that date because it had been extended beyond 30 January 2011 by Mr Zahoor’s second application dated 30 January 2011. His application dated 30 January 2011 was and remained a valid application that had not been determined when his third application was made on 20 April 2011 so that the original LTR as extended was still in place.[42]Mr Zahoor also contended that the second application was valid because the UKBA had been authorised by Mr Zahoor to obtain payment of the fee for the second application by making a call on the debit card of the bank account held by Future Immigration whose billing data had been supplied in the second application form. This account was sufficiently in credit when the UKBA attempted to use the supplied data so that payment would have been obtained in full had the fee application process been successfully undertaken. In those circumstances, the UKBA’s decision was erroneous.[43]Mr Zahoor also challenged the UKBA’s decision on human rights grounds. It was contended that his removal to Pakistan would infringe his article 8 right to a private and family life because it was disproportionate to require him to leave the UK and return to Pakistan given that his wife and step-child were British citizens who could not be expected to live in Pakistan so that on his return he would have to apply for leave to re-enter the UK to resume family life with them.[44]Consent order dated 26 June 2012. The UKBA did not enter an acknowledgement of service or serve summary grounds of defence. Instead, it offered to reconsider the decision dated 16 November 2011 on the basis put forward by Mr Zahoor in the pre-action protocol letter and the grounds pleaded in the claim form. This offer was accepted by Mr Zahoor in return for him agreeing to withdraw the claim with no order as to costs. The reconsideration and withdrawal were given effect to in a consent order dated 26 June 2011 which was sealed and entered by the Administrative Court on 1 August 2012. The order read:
“Upon the defendant within 3 months of the sealing of this consent order agreeing to reconsider the Claimant’s submissions of 17 February 2012 And upon the defendant agreeing that if following such consideration the defendant maintains her decision that the claimant should not be granted any form of leave to remain she will issue the claimant with a notice to remove the claimant, thereby giving rise to a right of appeal.”
[45]Amendment to IRs by the amendments to the IRs, the addition of FM and the related IDI Guidance. On 9 July 2012, the amendments to Part 8 of the IRs and related Immigration Directorate Instructions (“IDIs”) that included those concerned with the granting of leave to enter or remain in the UK to family members of a family member resident and settled in the UK, otherwise called family life claims took effect. The particular relevance of that significant event was that valid applications, that is applications that had been accompanied by the specified fee, that had been made but not decided prior to 9 July 2012 were not to be subjected to any of the amendments contained in the amended IRs including FM or the related provisions of the IDIs and were to be decided by reference to the IRs as they stood on 8 July 2012.[46]SSHD’s reconsideration decision dated 5 October 2012. The SSHD’s reconsideration decision was issued on 5 October 2012. It granted Mr Zahoor limited LTR in the UK for an initial period of 30 months from 5 October 2011. The relevant parts of this decision were as follows:
“Thank you for your application This a reference to the third application dated 20 April 2011. for limited leave to remain in the United Kingdom. Your application for limited leave to remain as a Partner has been considered. You did not meet all of the Immigration Rules for a grant of leave on this route because: You had no valid leave to remain when your application was made and you failed to meet the requirements of Paragraph 284(i) Italics added. The relevant requirement in paragraph 284(i) was that Mr Zahoor had limited leave to remain in the UK which had been given in accordance with any of the provisions of the IRs when the third application had been made. . As a result of the changes to the Immigration Rules which came into effect on 9 July 2012, any family life claim will now be given consideration under Appendix FM. As you had no valid leave to remain you would also fail to meet the requirements of Section E-LTRP.2.2 “[Mr Zahoor] must not be in the UK – (a) on temporary admission or temporary release, unless paragraph EX.1. applies; or (b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.”
. Consideration has been given under exceptions paragraph(s) EX.1(a) and EX.1(b) “[Mr Zahoor] has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.” . We are satisfied from the information you have provided that: You are in a subsisting relationship with a British Citizen. As she has a child from a previous relationship who is a British Citizen, then this is an insurmountable obstacle to family life being considered abroad. Because of your particular circumstances, you have been granted leave within the Immigration Rules under D-LTRP.1.2 “If [Mr Zahoor] meets the requirements [… to be met for limited leave to remain as a partner [which are- (a) [he and his] partner must be in the UK; (b) [he] must have made a valid application for limited or indefinite leave to remain as a partner; and … (d) (i) [he] must not fall for refusal under Section S-LTR: Suitability leave to remain; and (ii) [he] meets the requirements of paragraphs E-LTRP.1.2-1.12. and E- LTRP.2.1.; and (iii) paragraph EX.1. applies, ..]] he will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a partner under paragraph D-LTRP.1.1. … .” The requirements in S-LTR, E-LTRP.1.2-1.12 and E-LTRP.2.1 and EX.1 were all met by Mr Zahoor. . What this means for you. We have endorsed your BRP with limited leave to remain in the UK initially for 30 months. In order to qualify for settlement you must have completed a continuous period of at least 120 months in the UK with limited leave granted because of your Family Life with a Partner. Providing you continue to meet the criteria as set out in EX1 of Appendix FM, or the relevant legislation at the time of application, you should apply for further leave prior to the expiry of your current leave via a charged application. Subject to meeting that criteria you will be given a further period of leave of 30 months. You may need to make further applications and you will need to satisfy the Immigration Rules to take your leave to the necessary 120 months required for settlement.” Consideration has been given under exceptions paragraph(s) EX.1(a) and EX.1(b)

We are satisfied from the information you have provided that:

[47]It is to be noted that the decision did not consider or take account of Mr Zahoor’s contention that had previously been put forward on his behalf that he had had LTR when the third application was made so that the application should have been considered under paragraphs 281 – 289 of the IRs.[48]Pre-action protocol letter dated 15 October 2012 and second judicial review filed on 28 December 2012. Mr Zahoor’s solicitors sent the UKBA a pre-action protocol letter dated 15 October 2012 and a reminder dated 17 December 2012, neither of which were responded to. The solicitors then filed a second judicial review on 28 December 2012 which was amended by the addition of further grounds on 24 February 2014. The claim sought to set aside the decision dated 5 October 2013 on the grounds that that decision was erroneously made under FM because it had erroneously concluded that paragraph 284 of the IRs was not satisfied, had moreover been erroneously decided under FM although the relevant application had been submitted before FM had taken effect and had failed to consider and give effect to the relevant facts giving rise to the contention that the third application was submitted at a time when Mr Zahoor had leave to remain.[49]Acknowledgement of service and summary grounds of defence dated 13 February 2013. The summary grounds of defence, which were not subsequently elaborated upon in a detailed grounds of defence, were to the effect that the SSHD had correctly decided that the requirements of paragraph 284 of the IRs was not met and that the application was correctly decided under FM by a correct application of its provisions.[50]Permission. Permission was granted by

Judge Inglis on 28 March 2013 with the observation that:

“It appears arguable that the decisions should have been reached applying the rules and guidance in force on 8 July 2012.”
[3]Applicable law and practice (1). Application for LTR[51]In December 2010,Mr Zahoor’s current LTR was due to expire on 20 January 2011. He had been lawfully resident in the UK since 30 June 2006 save for two short periods between 1 July 2007 and 26 September 2007 and between 1 December 2008 and 15 February 2009 when he was between periods of LTR. He and his wife had married on 28 October 2010. Mrs Zahoor was a British Citizen and she had a son, then aged 3, who was living with her and Mr Zahoor. He had clearly decided to make the UK his permanent home.[52]In those circumstances, he was seeking to apply for FLR(M) under paragraph 284 of the IRs which provided requirements for an extension of stay as a spouse of a person present and settled in the UK. The relevant requirements for Mr Zahoor were that he had limited LTR of a type that without which he would not have been in the UK for more that 6 months beyond the date he was admitted, that he was married to a person present and settled in the UK, that each of the parties to that marriage intended to live permanently with each other as his or her spouse and that that marriage was subsisting. Pursuant to paragraph 285, an extension of stay under paragraph 284 might be granted for a period of 2 years if the SSHD was not so satisfied. If permission was granted under paragraphs 284 and 286 for someone in Mr Zahoor’s position, he could apply for ILR pursuant to paragraph 287(a) if he had been granted an extension of stay for a period of 24 months as the spouse of a person present and settled in the UK and the other requirements of paragraph 287(a) were satisfied. In Mr Zahoor’s case, the only condition that he had ever been informed that he had not complied with was that requiring him to have LTR at the time that he made an application to vary his LTR so as to extend it. (2) Extension of existing LTR[53]One of the requirements that Mr Zahoor had to satisfy if he was to be permitted to apply for LTR under paragraph 284 was that he had LTR at the time he made his application for an extension or variation of that LTR Paragraph 284(i) of the IRs. . For applications considered after 8 July 2012 even if these had been submitted before that date, a period of grace had been created so that an application was considered to have been submitted in time if the application was submitted within a period of 28 days after the applicant’s previous LTR had expired IR 284(iv). . The IRs provided that an application was made on the date it was posted to the SSHD. If that application had not been decided by the date that his existing LTR expired, section 3C of the Immigration Act 1971 provided that his leave was extended during any period that the application for variation was neither decided nor withdrawn. That extension was automatic if an application was made and it ceased as soon as the application was decided or withdrawn. If an applicant’s application was to vary or extend an existing LTR, the automatic extension of LTR provided for by section 3C would be replaced by the extension granted by the SSHD if such was the result of the application being granted Section 3C(2)(a). See paragraph 60 below. . (3) Requirements for a valid application[54]Most applications for LTR were made by post and they had to be made on a prescribed standard form. The specified fee was £500 which was increased to £550 from 6 April 2011. The form provided three alternative means of payment of this fee: by cheque or by credit or debit card. The form required the cheque to be provided with the completed form and for the billing data to be inserted into the appropriate boxes in the form. The application was made by its being posted with its accompanying documentation.[55]Regulation 37 of the Immigration & Nationality (Fees) Regulations 2011and IR 34A(ii) were the relevant provisions relating to the payment of the specified fee. These provisions required Mr Zahoor’s application to be accompanied by the specified fee and that the consequence of failing to comply with that requirement was that the application was not validly made 2011/1055. These Regulations came into force on 6 April 2011 but the relevant provision was in similar terms in the preceding 2007 version. See further paragraph 58 below. . The prescribed application form had a section which required the applicant to provide the billing data pertinent to a credit or debit card or the details of an enclosed cheque which the UKBA could use in order to obtain payment. The account holder or credit card provider had to be in sufficient funds or to have provided sufficient credit or overdraft facilities such as would enable the UKBA to obtain payment of the specified fee without further recourse to the applicant.[56]The application fee requirements governing applications for LTR were discussed in detail by the Upper Tribunal (Immigration and Asylum Chamber) sitting in Edinburgh (“UT”) in Basnet v SSHD 2012] UKUT 00113 (IAC). This decision in turn relied heavily on the earlier decision of the Asylum and Immigration Chamber in BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089. . Since the UT was a tribunal whose unitary jurisdiction extended to both England & Wales and Scotland, this was a determination that, although determined in Edinburgh, was determined under and was applicable to the law of both jurisdictions albeit that it only had persuasive authority in a judicial review heard in the High Court in England or the Court of Session in Scotland. The decision is entitled to particular respect since the UT on this occasion consisted of Blake J, who was at the time the President of the Upper Tribunal (Immigration and Asylum Chamber), and UT Judge Macleman. It was not suggested by either counsel that the determination should not be relied upon or followed. The relevant parts of that determination are set out, considered and adopted in this judgment. (4) UKBA’s practice when processing LTR applications[57]The practice of the UKBA in 2011 when processing a postal application, making a call for payment using the card data supplied by the applicant and in not recording what had occurred when making that call was set out in detail in Basnet. The extract reads as follows: “22. Ms Lochrie [counsel for the SSHD] helpfully explained to us the respondent’s standard procedures. This was a postal application, as are most of those dealt with by the respondent. When such an application is received, a letter in the standard form of the letter of 17 May 2011 is issued. The fee is not processed at this stage, so the letter cannot act as an acknowledgement of date of receipt of a valid application. There are no instructions that the application should be processed before the expiry of the applicant’s leave to remain. When an application is subsequently processed and the fee cannot be collected, for whatever reason, a standard letter is sent out in the form of the letter of 16 June 2011 The wording of the letter was identical to the wording of the letter received by Mr Zahoor dated 20 March 2011, see paragraph 17 above. . With it there are returned the original application and all accompanying documents, except the page providing for payment of the fee, which is shredded, for security reasons. An applicant is thus:-(1) Not given an opportunity to check the accuracy of the billing data and re-submit the application before his leave has expired;(2) Not given the opportunity to check whether the billing data was accurate after the processing had failed:(3) Not given any evidence-based specific reason why the processing has failed. Further, no record is kept of what went wrong with the payment that can be provided to the Tribunal determining the issue. In the present case, we had given advance notice that the respondent should produce the billing data page, but we were informed that this could not be complied with because it had been routinely destroyed. … 24. The best evidence of whether an application was accompanied by the fee is clearly the original information page supplied by the appellant. An applicant could in theory be invited to photocopy and retain his application form and billing data. Applicants are not presently invited to do so, and in any event in a disputed case this could give rise to an issue that a subsequent version is put forward as a copy of the original. 25. The best evidence of why an attempt to process a payment failed (sic) would be the record kept by the processor. 26. However, the system as presently operated by the respondent puts both these items of evidence beyond future reach of either party and of the Tribunal.” (1) Not given an opportunity to check the accuracy of the billing data and re-submit the application before his leave has expired; (2) Not given the opportunity to check whether the billing data was accurate after the processing had failed: (3) Not given any evidence-based specific reason why the processing has failed.[58]It followed that the UKBA did not seek payment using the billing data provided on the application form as soon as the application arrived and, indeed, would often not do so for at least 8 weeks after the arrival of the application since there were long delays in processing the application fee. Therefore, it would not have been possible to know whether an application was validly made at the time that the application had been made since the fee would not have been processed at that time and it would not be known whether it would actually be paid until it was processed some weeks later.[59]Thus, the requirement that the application had to be accompanied by the specified fee could not have related to the UKBA’s receipt of payment from the credit or debit account holder but instead applied to the submission of a cheque or of billing data which would permit the UKBA to obtain such payment without further recourse to the applicant. Notwithstanding that obvious and necessary conclusion, the UKBA decided that Mr Zahoor’s second application was invalid so that it refused to consider it and purported to return it because the specified fee had not been paid rather than relying on the correct ground for invalidity that it had not been accompanied by that fee. (5) Consequences of an application being made[60]Section 3C of the Immigration Act 1971. Although an applicant had to have LTR when making an application, it was more likely than not that his application would remain undecided at the time when that LTR expired since an application could not be made until the current LTR had 28 days or less to run. Section 3C of the Immigration Act 1971 was enacted to cater for that situation. This can be seen from the terms in which section 3C is drafted: “Continuation of leave pending variation decision 3C(1) This section applies if—(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,(b) the application for variation is made before the leave expires, and(c) the leave expires without the application for variation having been decided. (2) The leave is extended by virtue of this section during any period when— (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c) an appeal under that section against that decision brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act). (3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom. (4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section. (5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a) The Immigration (Notices) Regulations 2003 applicable to immigration decisions. The relevant regulations required the decision-maker to give the applicant written notice of the decision (reg. 4(1)), to include or be accompanied by a statement of the reasons for the decision (reg.5(1)(a)), to be served by one of the prescribed methods including service by post (reg. 7(1)) and that if served by post it was deemed to have been served, unless the contrary was proved, on the second day after it was posted (reg. 7(4)(a)). .” (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b) the application for variation is made before the leave expires, and (c) the leave expires without the application for variation having been decided. (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c) an appeal under that section against that decision brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).[61]The UKBA’s view. There were, in 2011, a surprisingly large number of applicants whose applications were decided by the UKBA to be invalid for non-payment of the fee and, equally surprisingly after they had been made and there were also a significant proportion of those applicants who considered that their supplied billing data had been accurate and had related to an account that was in funds.[62]Many of these applicants found themselves in a double bind since the consequence of having their application returned as being invalid was that they were considered by the UKBA to be overstayers whose LTR had never been extended by section 3C and who were unable to make a further application since that would have been made out of time. Mr Zahoor was in such a position even though he was able to show that the UKBA had erroneously found his second application to be invalid. On the basis of the UKBA’s view, an applicant’s LTR was extended following the application being made but that application would be treated as being invalid if the fee was not paid when processed and from that moment on, the applicant was to be treated as being one who’s LTR had never been extended. This view was based on the UKBA’s view that the invalidity of an application arose from the fee not being paid for whatever reason and even if that failure was the result of operator error when processing the fee.[63]The UKBA’s view was inconsistent with the wording of regulation 37 of the Immigration & Nationality (Fees) Regulations 2011 and sections 3C(1) and (2)(a) of the Immigration Act 1971 although its error was not material for any application which was not accompanied by the specified fee in addition to the fee not being paid See respectively paragraphs 80 below and 60 above. . Such an application was invalid in any event. The SSHD’s view was correct in considering that the extension of an applicant’s LTR arising from section 3C(1)(a) occurred at the moment that an applicant’s LTR expired for all applications and that the extension terminated with retrospective effect if the application turned out to be invalid. This view is consistent with the wording of regulation 37 whose effect was that an application should be treated as valid when made and only subsequently treated as being invalid it emerged that it had not been accompanied by the specified fee.[64]However, the further view of the UKBA that the validity of the application ceased if the fee was not paid was erroneous. This view was based on a mistaken view of the effect of regulation 37 as can be seen from the following succinct summary of the effect of that regulation in BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089 :
“ 20. Accordingly… 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.”
[65]The UKBA’s erroneous view that an application was invalid if the fee was not paid had led to a significant number of applications being returned as invalid even though the application contained billing which, if processed correctly, would have ensured that the UKBA received the specified fee.[66]The UKBA had also erroneously proceeded on the basis that an application would be treated as invalid if and when it decided that the provisions as to the payment of the fee had not been complied with even if that decision was based on an erroneous factual basis or on an incorrect application of the required test for invalidity. Moreover, it was erroneous in concluding that its decision as to invalidity could not be challenged and the applicant was to be treated thereafter as having made an invalid application unless its invalidity decision was set aside even if the initial decision was in error. These three erroneous considerations are further dealt with below See the following paragraphs below: 99 (invalidity based on non-payment of the fee); 94 (effect of UKBA’s decision as to finality) and 99 - 104 (finality of UKBA’s decision unless set aside). .[67]FtT’s preliminary determination as to jurisdiction. IJ Black’s preliminary determination had found that the second application had been invalid and was to be treated as never having been made. This is clear from this extract from that decision:
“23. … I therefore conclude that at the time [Mr Zahoor] made his first application This is what has been referred to in this judgment as the “second application” which was made on 30 January 2011. his leave could only have been his substantive leave and his Section 3C leave would not come into being until after he received a decision. No decision was made because the appellant then submitted a further application - a fresh application - which was made after the appellant’s leave expired An application which is treated as invalid is not refused; it is treated as not having been made.”
[68]The immigration judge considered that section 3C could not operate to extend an applicant’s LTR when an application to vary that leave had been made but not decided since the section could only take effect after the application had been decided. This view is untenable. If it was correct, the effect would be that section 3C would never have been needed or used since it would only have taken effect at a time when it was no longer needed. Instead, it is clear from the terms of section 3C that that section took effect once an in-time application had been made and from the terms of paragraph 37 that the invalidity of an application could only first be determined on a later occasion once it had become clear whether or not it had been accompanied by the specified fee. 4. Analysis of the claim[69]Mr Zahoor claims that his second application was valid because it was accompanied by the specified fee when it was submitted on 20 January 2011. As a result, he contends that his then existing LTR was extended until that application was determined but the SSHD failed to determine it because it erroneously decided that it was invalid and returned it undecided on 20 March 2011. He then made his third application dated 20 April 2011 whilst he still had extended LTR. That application was an application to vary the second application or, alternatively, was a stand-alone application that had been submitted in time. On either view, it had been submitted at a time when he had LTR, being the LTR that ceased on 30 January 2011 whose validity had been extended by section 3C.[70]The third application, whether treated as a variation of the second application or as a stand-alone application, was only decided after the original decision dated 16 November 2011 had been referred to the FtT who had declined to consider the reference on jurisdictional grounds, had then been made the subject of a judicial review claim which was withdrawn by consent, had then itself been withdrawn and reconsidered and had then been decided in the decision dated 5 October 2012.[71]Mr Zahoor contends that the decision dated 5 October 2012 was erroneous in concluding that the third application had been made at a time when he had no LTR, a decision which was premised on the earlier erroneous decision dated 20 March 2011 that the application dated 30 January 2011 was invalid.[72]Mr Zahoor also claims that had his application been decided in the way that he contends it should have been decided, namely as an in-time valid application, he would have been entitled to the grant of LTR for 24 months pursuant to paragraph 285 of the IRs with the expectation of being granted ILR pursuant to IR 287 once that LTR expired. Instead, the SSHD considered his application under FM on the basis that he had no LTR when he had made his third application. As a result, he will only be eligible for ILR after residing in the UK for 120 months pursuant to four successive 30-month grants of LTR. Given the time that has now elapsed since he made his first application on 30 January 2011 and the series of errors that his various applications have been subjected to, he now contends that the further reconsideration of his application should be considered for ILR following a grant of LTR under paragraphs 281 – 289 of the IRs and the discretionary grant of ILR.[73]In support of his claims, Mr Zahoor contends that the SSHD did not consider his claim that he had submitted a valid application for LTR on 20 January 2011 when reaching any of the decisions dated 20 March 2011, 16 November 2011 or 6 October 2012 and the FtT did not consider it when reaching its jurisdictional and procedural decisions dated 7 and 14 February 2012. He contends that this claim should have been both considered and accepted by the SSHD and the FtT when reaching each of these respective decisions. 5. First attempted application at Croydon PEO on 29 January 2011[74]The procedure that was followed in 2011 for a PEO application was described in the reasons of in Basnetin the following extract:
“23. By contrast, at those offices where applications are accepted in person, a different procedure applies. Once an application is received the payment is immediately processed, with the applicant waiting to ensure that processing has been successful. The applicant is informed of the outcome after about 15 minutes. If the payment fails, an official advises the applicant and either extends the opportunity to check over the details provided previously, or provides a fresh billing page to complete. (A frequent inadvertent error is the reversal of the order of 2 digits.) A second attempt is then made to process the application, and I many cases this is successful. ibid. ”
[75]When Mr Zahoor attended UKBA’s Croydon PEO on 29 January 2011, the counter clerk refused to receive his application form because he had signed and dated it on 21 December 2010 which was a date that was more than 28 days prior to both the date of the expiry of his then current LTR and the date on which the form was being delivered. In all other respects, the application was valid and in conformity with the relevant regulations and there was no evidence to suggest that the credit or debit card data it contained were erroneous.[76]The counter clerk should not have refused to accept the application for processing since it was and appeared to be a valid application which he was lodging less than 28 days before his existing LTR expired Paragraphs16(1)(a) & 17(1)(a) of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007, SI 2007/882. . Mr Zahoor’s only possible error was that he had dated the application form 39 days earlier than the date on which he was attempting to lodge it. However, there was no stated requirement that the date that the applicant had dated and signed the form had to be the date on which the application was lodged or one which was within the 28-day period preceding the expiry of the applicant’s LTR See paragraph 3.7 of the IDIs, Chapter 8 – Family Members. . If the counter clerk considered that the form was defective because the date that it had been given was not the date of the proposed lodging of the form, he could and should have asked Mr Zahoor to amend the date on the form in his presence and then have received it and allowed it to be lodged.[77]The counter clerk should therefore have accepted Mr Zahoor’s application form when he attended at the Croydon PEO either dated 21 December 2010 or once Mr Zahoor had amended the date to 29 January 2011. Had the form been accepted, it would then have been sent to another clerk for the specified fee to be processed whilst Mr Zahoor waited. If there was any mishap with the collection of the fee, Mr Zahoor would have been given a second chance to provide accurate billing data for an account that was in funds or to show that the fee had been processed incorrectly. The fee could then have been collected whilst he waited and he would then have been issued with LTR before he left the PEO.[78]It follows that had Mr Zahoor’s application form been accepted, he would have gained LTR on 29 January 2011. He would then have avoided having to apply for LTR by post and have been spared all the difficulties that occurred subsequently. 6. Second application sent by post on 30 January 2011 (1) The requirement that the application should be accompanied by the specified fee.[79]In considering what was meant by the requirement that an application had to be accompanied by the specified fee in order to be valid, it is pertinent to consider an extract from the judgment of the UT in Basnet. In that case, the appellant alleged that he had submitted a valid application for an extension of his LTR which the SSHD had decided was invalid due to the non-payment of the specified fee. The appellant had submitted an application on 13 May 2011, the SSHD had acknowledged its receipt in a letter dated 17 May 2011 and had notified the appellant that the application was invalid due to the non-payment of the specified fee in a letter dated Thursday 16 June 2011 which he received 3 working days later on Tuesday 21 June 2011 and the appellant had submitted a further application on 22 June 2011. The SSHD rejected this second application in a letter dated 3 August 2011 due to the appellant “not having an established presence studying in the United Kingdom”, that is that the appellant had submitted his second application at a time when he had had no LTR. Given that chronology, the relevant two applications had been submitted at almost the same time as Mr Zahoor had submitted his second and third applications.[80]The extract reads as follow:
“11. … The appellant maintained that with his application of 13 May 2011 he provided correct bank details, and he showed that funds were in his account at the time. He referred to BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089. , a case based on the 2007 Regulations, but “equally of assistance” to the 2011 Regulations. The appellant had accompanied his application by such information and authorisation as was necessary for the respondent to be paid, so the notice “invalidating” his application was “itself invalid”
. If so, the appellant would qualify for the reduced maintenance level, and was bound to succeed. … 17. … the Immigration & Nationality (Fees) Regulations 2011… provide at Regulation 37: Consequences of failing to pay the specified fee. Where an application to which these Regulations refer is accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee. 19. … As held in [BE], an application is “accompanied by” a fee if it is:
“… accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.” 20. Accordingly… 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.”
Consequences of failing to pay the specified fee. Where an application to which these Regulations refer is accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee. “… accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.”[81]This reasoning is clearly correct. It follows that Mr Zahoor’s second application was valid if Mr Anjum had accurately entered onto the form the billing or debit card data for his Lloyds TSB bank account that was to be used for the payment of the specified fee and that the funds or the overdraft facility available in the account were sufficient for the bank to pay the UKBA the specified fee without further recourse to the account holder when the UKBA processed the fee application. The UKBA in its standard rejection letter that it sent to the applicants in both the Basnet and this case erroneously stated that the application was invalid because the specified fee had not been paid. In fact, the validity of the application was dependant upon the provision of accurate data on the application form and not on the payment of the specified fee by the bank. (3) The burden of proof[82]Burden of proof. Mr Zahoor had to prove that his application had been accompanied by the specified fee. He therefore had to establish that the application had been sent, that the billing data supplied on the form was accurate, that that data had been accurately used and that the bank would have paid the UKBA the specified fee when it had been processed without further recourse being made to the account holder. If he established these four matters, he would succeed in showing that the specified fee had accompanied the application.[83]Mr Anjum was unable to provide a copy of the page of the application containing the billing and the SSHD was also unable to provide a copy of that page or evidence to show that the billing data had been accurately used during the attempt to access the account. Mr Zahoor was, however, able to prove that his account had sufficient credit available to meet the UKBA’s call for the specified fee even though he did not know the date upon which the call was made since he could prove that the account had sufficient credit available on each day in the period during which that call must have been made.[84]In those circumstances, Mr Zahoor would have been in difficulties in establishing that accurate billing data had been supplied even though Mr Anjum had provided him with his billing data since he was unable to demonstrate that it had been accurately inserted into the appropriate boxes in the application form. Furthermore, there was no way that he could have shown whether the processing clerk had accurately used the supplied billing data since the UKBA was the only possible source of evidence that would have shown what billing data had been used when processing the fee application and that evidence was not available. Likewise, the UKBA could not establish why the fee had not been paid.[85]In those unusual circumstances, it was necessary to establish on whom the evidential burden of proof lay in relation to the issues surrounding the provision and use of the billing data. In considering who had that burden of proof, it is pertinent to consider another extract from Basnet which reads as follows:
“27. We now turn to the question of who bears the burden of proving that an application has been validly made. This would normally fall on the applicant, who would discharge it by producing evidence of acknowledgement of receipt of postage. Here the application was received in time, but the question of whether it was accompanied by accurate billing data can be answered only by the respondent. In those circumstances, we conclude that the evidential burden of demonstrating that the application was not “accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question” must fall on the respondent. We reach this conclusion both by application of first principles – the party that asserts a fact should normally be the one who demonstrates it; and because the respondent is responsible for the procedure to be used in postal cases, and the features noted above prevent both the issue of a prompt receipt and an opportunity to understand why payment was not processed. An applicant is not present when an attempt to process payment is made, and has no way of later obtaining the relevant information.”
[86]It follows from this reasoning, which I accept and adopt, that the SSHD had the evidential burden of showing what billing data had been provided on the form and whether the supplied billing data had been correctly used. Unless it could establish both of these matters, Mr Zahoor would have succeeded in establishing that the application form was valid since he could positively establish that the application had been sent and that the account would have honoured the call on the relevant bank account and the SSHD would have failed to establish that the billing data had been correctly provided and used. (4). Whether the second application was invalid for non-payment of the specified fee[87]In considering this issue, I will consider all the evidence that was available to the UKBA decision-maker when reconsidering Mr Zahoor’s submissions dated 17 February 2012 and reaching the decision dated 5 October 2012 See paragraph 108 below for why the issue arose for reconsideration and paragraphs 108 - 109 below as to why this evidence was available to the decision-maker who undertook this reconsideration. . It is clear from that evidence that the application was submitted on 30 January 2012 whilst Mr Zahoor still had LTR and that it was processed on 20 March 2012 or on a day very shortly before that date. The billing data provided on the application form are not available since only the first page of the form was returned and it is to be inferred that the UKBA destroyed all the other pages of the application form including the page on which this data had been set out after the fee had been unsuccessfully processed. Moreover, Mr Anjum did not keep a copy of the application form. No adverse inference is to be drawn from the fact that the UKBA had destroyed the application form without taking a copy of it and Mr Anjum had not made a copy it before posting it to the UKBA See the extracts from paragraphs 24 and 27 in the decision in Basnet set out inparagraphs 57 and 85 above. .[88]Mr Zahoor’s evidence was that Mr Anjum had provided him with details of the billing data that he had put on the form for the second application and of the bank account that that data related to. Those details corresponded to the data contained on a photocopy of the face of the debit card of an account held in his name that Mr Anjum had provided him with. This was the account that he held at Lloyds TSB bank which the bank had verified in a letter as being a valid and operating account in Mr Anjum’s name. The bank had also provided copies of the relevant bank statements which showed that the account had had sufficient available funds to meet a call for the specified fee on every day in the period during which the UKBA could have attempted to process payment. He had also provided a copy of the cheque Mr Anjum had supplied with the third application dated 20 April 2011 and which had been honoured when presented by the UKBA.[89]There was some evidence that suggested that the failure of the UKBA to obtain payment of the specified fee was due to a processing error by the UKBA’s processing clerk when attempting to obtain that payment. This evidence was to be found in its letter dated 20 March 2011 that informed Future Immigration that the application was invalid. The letter referred to Mr Zahoor’s application as having been made by post on 27 January 2011. Mr Zahoor’s application had in fact been dated and made by post on 30 January 2011 so that the processing clerk had either made an error when taking the date from Mr Zahoor’s form or had erroneously used the credit or debit card data from a different application form altogether. The processing clerk had therefore made a serious error in processing this application so that it was very possible that the failure to obtain payment was also attributable to this or to another processing error by the processing clerk when processing Mr Zahoor’s application.[90]The UKBA supplied no evidence about the processing of the specified fee relating to this application and did not attempt to refute or challenge Mr Zahoor’s evidence or the evidence supplied by him. That evidence can be summarised shortly. Mr Anjum had accurately given him the relevant data that had been accurately set out in the application form that had been sent to the UKBA to enable it to process the payment of the specified fee. That account was in funds. That evidence was amply supported and corroborated by the additional independent evidence obtained from Mr Anjum and his bank. Mr Zahoor had, therefore, amply satisfied the burden of proof placed on him.[91]The UKBA has never attempted to prove what billing data it had been supplied with, what billing data it had used when processing the fee application or what had occurred that had led it to conclude that payment had not been received. This was because it had not recorded or kept the relevant data as was its normal practice at that time. Moreover, as has already been shown, it applied the wrong test when deciding that the application was invalid since it confined its consideration to the question of whether the fee had been paid and it failed to consider whether the application was accompanied by the fee.[92]It follows that Mr Zahoor has established that his second application made on 30 January 2011 was valid, that it had been accompanied by the specified fee and that the SSHD has failed to prove its assertion contained in its decision dated 20 March 2011 that that fee had not been paid and had also failed to prove the stipulated requirement for invalidity, namely that the application had not been accompanied by the fee. Mr Zahoor has also satisfactorily demonstrated that the relevant account was sufficiently in funds on the day the application was processed. (5) Consequences of the SSHD’s decision dated 20 March 2011[93]Validity of the application. The SSHD’s decision was that the application was invalid because the fee had not been paid. It also purported to return the application form save for the billing data page as an outward and visible sign that the application had not been considered and was invalid. That decision did not conclusively decide that the application was invalid. The alleged invalidity was said to have resulted from the non-payment of the fee but, in accordance with regulation 37, the application was only to be treated as invalid if the application was not accompanied by the specified fee. Thus, on that ground alone, the decision did not affect the validity of the application since it did not reach any conclusion about the factual situation that had to arise for the application to be treated as being invalid.[94]Whether the application was affected by the decision. If the application was in fact valid, the statement by the SSHD that it was invalid had no effect on the application itself. That remained a valid application and, as such, remained for decision. The SSHD had a statutory duty to decide the application and could not unilaterally divest itself of that duty by sending the application back and informing the applicant that it would not be decided. Thus, the application remained alive and the SSHD continued to have an obligation to decide it.[95]Whether LTR was terminated. Section 3C made it clear that the extended LTR would only come to an end once the application was decided or withdrawn. Since the application had not been decided and was not in fact invalid, Mr Zahoor’s LTR remained in place following the decision of 20 March 2011. 7. Third application sent by post on 20 April 2011 (1) Whether the third application was a fresh application[96]The parties have always treated the third application as if it had been a fresh application. However, if it had been a fresh application, it could only be made once the second application had been withdrawn as can be seen from the terms in which section 3C(4) of the Immigration Act 1971 is drafted See paragraph 60 above. . The previous discussion had been on the basis that the second application had been invalid, the parties do not appear to have considered it in the context of the second application being valid.[97]The third application had all the hallmarks of being an application to vary Mr Zahoor’s second application. It had been signed by Mr Anjum and not Mr Zahoor and its sole additional purpose was paid the specified fee by cheque rather than with a debit card. The fee that was submitted had increased to £550 but that enhanced fee had to be paid in the light of the fee increase that taken effect on 6 April 2011. These differences pointed to the application being one seeking to vary the method of payment of the specified fee for the second application particularly as it was Mr Anjum and not Mr Zahoor who signed it. There was no evidence of Mr Zahoor withdrawing his second application, indeed the reverse was the case. I conclude that the third application was an application made by Mr Anjum to vary the method of paying the specified fee for the second application which had not yet been paid and which were due to collection difficulties which had not been of Mr Zahoor’s making. The receipt of the application and this acceptance were communicated to Future Immigration by, respectively, the SSHD’s acknowledgement letter dated 28 April 2011 and its letter of acceptance dated 24 June 2011 which confirmed that the fee had been paid.[98]It was permissible for Mr Zahoor to vary his second application during the period when he had extended LTR as can be seen from the terms of Section 3C(5) of the Immigration Act 1971 set out above. (2) Whether the decision dated 20 March 2011 was conclusive as to invalidity[99]It was submitted on behalf of the SSHD that the decision dated 20 March 2011 had conclusively determined that the second application was invalid, that that decision prevailed whatever the true factual position was and that the only way that that decision could have been undermined was by a successful challenge by judicial review which had not been made. This contention was made in the SSHD’s counsel with this laconic statement in his skeleton argument:
“The claimant did not seek to challenge the decision to reject his application as invalid.”
[100]This submission was erroneous for a number of reasons. Firstly, for the reasons already set out, the claimant was in fact challenging the decision that his second application was invalid following the successful variation of that application by the third application. Since the second application had not been decided when the third application had been made and had also not been withdrawn, it remained for decision. Once the SSHD had accepted the specified fee for that varied second application, it was then made the subject of the decision dated 16 November 2011 and was refused. It followed that, on analysis, the subsequent appeal, two judicial reviews and reconsideration decision all related to a decision on that varied second application.[101]Secondly, the finding or conclusion of fact in question did not form part of an immigration decision that had binding effect. Instead it was an administrative decision relating to the payment of the application fee that formed the first part of the administrative process of determining an immigration decision.[102]Thirdly, the relevant finding was that the fee had not been paid whereas no finding had been made as to whether the application had been accompanied by the specified fee. It follows that the SSHD had not made a finding on the crucial issue that must now be resolved.[103]Fourthly, Mr Zahoor is now challenging a subsequent decision that relied on a finding in an earlier decision that the specified application fee for that earlier application had not been paid and he is doing so by seeking to show that the earlier application had, as a matter of fact, been accompanied by the specified fee. This is the same course as that adopted by the appellant in the UT appeal in Basnet. There, the applicant’s first application was rejected because the application fee had not been paid. On receiving his letter returning the application, the applicant submitted a second application which was refused because it had been submitted after his LTR had expired. He challenged that refusal in an appeal to the FtT and then in a second appeal to the UT who allowed his appeal on the basis that the evidence showed that his original application was valid since it had been accompanied by the specified fee.[104]It follows that it was open to Mr Zahoor to challenge the conclusion that he had not made his second application at a time when he had LTR by showing that he had submitted the specified application fee with his first application even though he had not challenged the first decision by judicial review. (3) The decision dated 16 November 2011 and the challenge to that decision[105]The sole basis of the decision dated 16 November 2011, and the only matter considered, was whether the third application had been made whilst Mr Zahoor still had LTR. Without any consideration of whether the second application had been accompanied by the specified fee and merely adopting the unconsidered statement in the second decision that the specified fee had not been paid, the decision-maker concluded that the third application should be refused because Mr Zahoor had no current LTR.[106]Mr Zahoor immediately sought to appeal that decision to the FtT on the basis that his third application was submitted whilst he still had extended LTR by virtue of his second valid application. The FtT decided that it had no jurisdiction to hear his appeal because he had not shown that he had LTR when the third application had been made. This somewhat doubtful finding was in effect affirmed by the FtT when concluding that his application for permission to appeal was outside the jurisdiction of the UT.[107]Mr Zahoor then adopted the advice of the FtT immigration judge in the jurisdiction determination which had been to the effect that his only method of challenging the finding of the SSHD was by way of judicial review. His solicitors sent a pre-action protocol letter and drafted grounds of claim which both sought to challenge the SSHD’s decision on the dual basis that he had had LTR when submitting the third application and that he should be granted DLR on article 8 grounds.[108]Having considered these documents, the SSHD agreed to withdraw its decision dated 16 November 2011, to reconsider the basis of Mr Zahoor’s challenge to it and then to issue a fresh decision. In the consequent consent order dated 26 June 2012 that was made in order to give effect to that agreement, the SSHD agreed to reconsider that decision by reference to the submissions set out in the pre-action protocol letter. By necessary inference, the SSHD had also agreed that the decision-maker would also take account of the submissions previously submitted in connection with the third application, the grounds of appeal to the FtT and any relevant documents sent and submissions made during the lengthy application process that had already occurred.[109]When all the relevant documentation and submissions that had been received by the UKBA were taken into account, it was, or should have been, clear to decision-maker taking that reconsideration decision that Mr Zahoor’s first ground of challenge was that he had submitted a valid application on 30 January 2011, that his LTR had been extended beyond 30 January 2011 by section 3C, that he had not had that application decided, that it had not been withdrawn, that his second and third applications were both made at a time when his extended LTR remained live, that the third application had varied the second application and that the second application still remained for decision. In other words, it was or should have been clear that his first ground of challenge was being made under the IRs in general and under IRs 281 - 289 in particular that that ground should succeed and that LTR should be granted under the IRs.[110]The reconsideration decision dated 5 October 2012 again failed to consider Mr Zahoor’s first and principal ground that the original application was valid and again merely adopted the unconsidered statement in the withdrawn decision dated 16 November 2011 that Mr Zahoor had no leave to remain when he had made his third application. However, the decision-maker then went on to consider whether to grant Mr Zahoor LTR pursuant to FM and as an applicant who had had no LTR at the time the application had been made. Mr Zahoor was therefore granted LTR on that basis. This was a grant on the much more limited basis applicable to those granted LTR under FM rather than those whose applications were made whilst they had LTR and who were in consequence granted LTR under IR 285.[111]Mr Zahoor issued this second judicial review. In it, he challenged the SSHD’s decision dated 5 October 2011 on the basis that the decision-maker had erred in concluding in that decision that he had had no extended LTR at the time when he had submitted his third application. This error had arisen because the decision-maker making the decision dated 20 March 2011 had applied the wrong test See paragraphs 58 - 59 above. in deciding that the specified fee for the second application had not been paid and by failing to consider any of the evidence that had been submitted that showed that that application complied with the relevant test that it had to be accompanied by the specified fee. In short, the decision-maker of the decision dated 5 October 2011 had reached a decision that was wrong in law in concluding that IR 285 was not applicable and that only FM was applicable. (4) The judicial review challenge - conclusion[112]This case is on all fours with the decisions in both BE and Basnet. It follows that the decision-maker when making the decision dated 5 October 2012 erred in law in concluding that Mr Zahoor’s applications dated 30 January and 20 April 2011 should not be decided by reference to IRs 281 - 289. In other words, the decision-maker when making that decision erred in law because that decision:(1) Was erroneously based on the assumption that had been made by the decision-maker that Mr Zahoor’s application dated 30 January 2011 was invalid because the application fee for that application had not been paid and had reached that assumption by applying the wrong test for invalidity;(2) Was erroneously based on the further assumption that his application dated 20 April 2011 was a fresh application rather than a variation of the previous application and also that it had been submitted at a time when he did not have extended LTR; and(3) Did not consider whether, on the evidence available to the decision-maker when taking the 5 October 2012 reconsideration decision, the application dated 30 January 2011 had been accompanied by the specified fee. 8. Nature of relief (1) Introduction[113]The decision dated 5 October 2012 that is being challenged was a decision that related to Mr Zahoor’s application for LTR. The application had sought LTR under the IRs and, following its expansion by the terms of the notice of appeal to the FtT dated 9 February 2011 and the pre-action protocol letter dated 17 February 2012 as confirmed in the pre-action protocol letter dated 15 October 2012, had also sought DLR in the alternative as part of a human rights claim. Mr Zahoor’s primary application for LTR was, and continued to be, advanced under paragraph 285 of the IRs.[114]He was therefore applying for 2 years LTR with the expectation of being granted ILR at the expiry of that grant and British citizenship soon after that. The application had been made before the addition of FM and the human rights amendments to the IRs which took effect on 9 July 2012. These were applicable to applications made before they took effect but decided after they had taken effect if the applicant did not have LTR at the date of the application but not if he had LTR. However, for someone in Mr Zahoor’s position of having LTR at the date of the application by virtue of the operation of section 3C of the Immigration Act 1971, the introduction of the amendments and additions to the IRs on 9 July 2012 made no difference since paragraphs 281 – 289 applied and these IRs had not been amended in any relevant way by the changes to the IRs that took effect on 9 July 2012.[115]The decision dated 5 October 2012, as with the earlier decision dated 16 November 2011 which had been withdrawn, had concluded that Mr Zahoor did not meet all the IRs for the grant of leave as a partner – that is for the grant of LTR in that capacity under paragraphs 281 – 289 of the IRs, because:
“… you had no valid leave to remain when your application was made and you fail to meet the requirements of Paragraph 284(i). As a result of the changes to the IRs which came into effect on 9 July 2012, any family life will now be given consideration under Appendix FM.”
[116]In other words, the decision-maker concluded that the decision should be confined to Mr Zahoor’s alternative human rights claim since the effect of FM was to incorporate the decision-making process of a human rights claim based on family life under article 8 into a rule-based structured decision-making process under the IRs of that human rights claim.[117]Mr Zahoor’s FM claim succeeded in the sense that he was given LTR under FM. However, his complaint is that, because of the erroneous treatment of his claim as one made when he had no valid LTR when he in fact did have LTR, he did not qualify for the type of LTR provided for by IRs 288, 284 and 287, that is 24 months LTR followed by the expectation of ILR having completed 24 months of resident pursuant to that grant of LTR. Instead, he only qualified for the type of LTR provided for by paragraphs EX1 and D-LTRP.1.2. of FM, that is 30 months LTR followed by the expectation of 3 further grants of 30 months followed by the expectation of ILR having completed 120 months of residence pursuant to those grants of LTR.[118]It is clear that Mr Zahoor’s second and third applications should have been considered under paragraphs 281 – 289 and his primary claim should have been considered on the basis that he had LTR at the time that his application was made and that he should have been granted LTR for 24 months from the date of the decision. Had his initial PEO application succeeded, that 24-month period would have run from 29 January 2011. Had his second application succeeded, it would have run from the date of the substantive decision on that application which would have been several weeks after the invalidity decision of 20 March 2011 which would not have been made. Had his third application succeeded, it would have run from 16 November 2011. Had his reconsideration decision succeeded under paragraphs 281 – 284, it would have run from 5 October 2012. On the basis of this judgment, whatever grant of LTR is made by the SSHD in a further reconsideration of the application dated 30 January 2011 will run, if paragraphs 281 – 289 are applied, from the date of that further reconsideration decision sometime in the future and nearly 4 years after the application had originally been made and should have been decided. Meanwhile, Mr Zahoor has been lawfully resident in the UK since 30 June 2006, has been in a permanent relationship with his wife since their engagement in June 2010, was granted a Certificate of Approval for Marriage on 7 September 2010 and has been married since 28 October 2010.[119]It follows that Mr Zahoor is seeking to have the decision dated 5 October 2012 set aside and further reconsidered under paragraphs 281 – 289 of the IRs on the basis that he had LTR at the date of the application being decided, namely the application made on 30 January 2011 as varied by the application made on 20 April 2011, and that he should be granted ILR with immediate effect. (2) Discretionary grant of ILR[120]I have no power to consider whether Mr Zahoor should be granted LTR or the terms on which any grant of LTR should be granted. I can however point to the relevant basis on which the SSHD should reconsider both whether LTR should be granted and as to its terms. The SSHD should first consider whether to grant LTR under paragraphs 281 – 289. If it is decided that that is appropriate, the decision-maker must then consider what type of LTR should be granted. In this case, there is a choice. The decision-maker must firstly consider what length of LTR would be granted if paragraphs 281 – 289 of the IRs are applied and with effect from what date. If, as appears to be the case, the answer is 24 months from the date of that further reconsideration decision, the decision-maker must then decide whether to exercise the discretion that is available to the SSHD outside the IRs to impose different terms such as granting LTR from an earlier date than the date of the decision and making an immediate grant of ILR with the expectation of being able to apply for citizenship within a defined period of time thereafter.[121]Thus, the SSHD will need to consider whether to exercise discretion to grant ILR or some other type of LTR than that provided for by paragraphs 281 – 289 and whether that grant should run from the date of the decision or from some other date. In exercising that discretion, the decision-maker will need to take account of the dates set out in paragraph 118 above and the immigration history set out in this judgment. He will also need to take account of the catalogue of errors that have occurred which have not been of Mr Zahoor’s or Future Immigration’s or his solicitors’ making. These include the following:(1) The PEO’s refusal to accept Mr Zahoor’s PEO first application;(2) the UKBA’s failure to obtain payment from the bank whose billing details had been provided on the second application form and even, possibly, its erroneous use of billing data taken from a different application to that submitted by Mr Zahoor;(3) its erroneous categorisation of Mr Zahoor as a person who did not have LTR at the time of his third application in the decisions dated 20 March 2011, 16 November 2011 and 5 October 2012;(4) its failure to apply the correct test to determine whether Mr Zahoor’s second application was invalid in each of those decisions;(5) its failure to give effect to the decision of the UT in Basnet, promulgated on 14 February 2012 in the decision dated 5 October 2012 and(6) its decision that has the appearance of being unlawful to detain Mr Zahoor in immigration detention between 14 and 16 February 2012.[122]The decision-maker should have in mind when considering whether to exercise discretion and, if so, in what terms, the decision of the UT in Naveed (Student – fairness) [2012] UKUT 14 (IAC). . The subject-matter of that decision is different but the following statement of the UT in its decision is pertinent when the decision-maker considers the unfairness that Mr Zahoor has experienced in this case: “14. Nevertheless the appellant’s treatment has been conspicuously unfair. His application for leave to remain is being refused because of his failure to produce a document that he was never asked to produce; that document only became relevant because of inquiries the respondent made on the application, but did not communicate the results to the appellant before the decision was made, or else she would have been made aware that the response from the appellant’s previous college was inaccurate. None of this would have mattered if s.85(4) had remained in force unaltered. We cannot imagine that Parliament intended to produce so clearly unfair a result.15. In our judgment the problem arises not with the terms of the section, which is in any event binding on us as primary legislation, but with the conduct of the respondent in examining the application and refusing it in the way she did. Given that the respondent was (or should have been) aware of the consequences of s. 85A when she made the decision in this case, the respondent is under a common law duty to act fairly in deciding immigration claims properly made to her. A failure to act fairly is a failure to act in accordance with the law and a failure to make a decision in accordance with the law is a ground of appeal to the tribunal under s.84(1)(e) of the Nationality Immigration and Asylum Act 2002.16. Two recent decisions of the UT are relevant: Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC). and Thakur (PBS decision – ‘common law fairness’) Bangladesh [2011] UKUT 151 (IAC). . Both dealt with the problem referred to in the long title of Patel, where a student’s sponsoring college has its licence revoked between the student’s application, and an adverse decision on it, based on the revocation which the student could have known nothing about.17. The solution found in Thakur was to declare that a decision taken in those circumstances was ‘contrary to the law’: the result was that the appellant’s application remained undecided, and he was to have a period of grace to put in a fresh one, naming a new college with a valid licence. The Tribunal in Patel went into the question further, making it clear at paragraph 28 that the general principle was this: “Where a judge finds that there was a duty to act fairly that has not been complied with in the particular circumstances of the case, he or she can allow the appeal on the basis that the decision is not in accordance with the law.”18. Both of these decisions were noted by Aikens LJ, writing for the Court of Appeal in Sapkota [2011] EWCA Civ. 1320. , in the following paragraphs: ‘103. I would therefore hold that an argument that an "immigration decision" not to extend leave to remain is flawed because the SSHD failed at the same time or promptly thereafter to consider the question of whether or not to make a removal direction (either under section 10 of the 1999 Act, or more appropriately in these cases, under section 47 of the 2006 Act) does fall within the ambit of section 84(1)(e) of the 2002 Act. In short, an unjustified deferral of the removal decision would mean that the "immigration decision" actually taken is not "in accordance with the law". 104. At the hearing we were not shown any other authority on the construction of section 84(1)(e) or its statutory predecessors which would preclude this conclusion apart from Laws LJ's statement in SA (Pakistan). In her further written submissions, Ms Rhee accepted the general proposition that an "immigration decision" can be impugned as not being "in accordance with the law" within section 84(1)(e) if the decision was taken in breach of public law principles, e.g. by failing to take into account a relevant consideration when making the decision. She submitted however that the ground of appeal in section 84(1)(e) could not be used so as to widen the scope of an "immigration decisions" against which the right of appeal lies – so as to encompass a complaint that the Secretary of State had failed to issue a further consequential decision at the same time as the decision under appeal. Mr Malik, in his written submissions, referred us to decisions of the AIT and the UT which all state that an immigration decision can be challenged on the section 84(1)(e) ground where it is alleged that the decision was made in breach of public law principles. 105. In my view, the construction of section 84(1)(e) I propose is preferable for four reasons. First, it would be consistent with one of the statutory policies and objects of the immigration legislation which was reconfirmed by Sedley LJ in Mirza, viz. to enable the courts within the framework of the immigration legislation to deal compendiously with all issues concerning the lawfulness of a person's continued residence in the UK. It is logical that all issues should be dealt with in the legislative context, rather than outside it.’ 19. The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law. Applying that to the circumstances of the present case, the decision is not in accordance with the law, and accordingly a lawful decision has yet to be made, because the Home Office never put the appellant on notice that such evidence would be required, or gave him any opportunity to answer the result of their inquiries with his college. There was nothing at all in the application form to show that the appellant needed to include documentary evidence of his right to ‘established presence’; and no chance of his producing any evidence to contradict the result of the inquiries, only revealed in the decision itself.” “Where a judge finds that there was a duty to act fairly that has not been complied with in the particular circumstances of the case, he or she can allow the appeal on the basis that the decision is not in accordance with the law.” ‘103. I would therefore hold that an argument that an "immigration decision" not to extend leave to remain is flawed because the SSHD failed at the same time or promptly thereafter to consider the question of whether or not to make a removal direction (either under section 10 of the 1999 Act, or more appropriately in these cases, under section 47 of the 2006 Act) does fall within the ambit of section 84(1)(e) of the 2002 Act. In short, an unjustified deferral of the removal decision would mean that the "immigration decision" actually taken is not "in accordance with the law". 104. At the hearing we were not shown any other authority on the construction of section 84(1)(e) or its statutory predecessors which would preclude this conclusion apart from Laws LJ's statement in SA (Pakistan). In her further written submissions, Ms Rhee accepted the general proposition that an "immigration decision" can be impugned as not being "in accordance with the law" within section 84(1)(e) if the decision was taken in breach of public law principles, e.g. by failing to take into account a relevant consideration when making the decision. She submitted however that the ground of appeal in section 84(1)(e) could not be used so as to widen the scope of an "immigration decisions" against which the right of appeal lies – so as to encompass a complaint that the Secretary of State had failed to issue a further consequential decision at the same time as the decision under appeal. Mr Malik, in his written submissions, referred us to decisions of the AIT and the UT which all state that an immigration decision can be challenged on the section 84(1)(e) ground where it is alleged that the decision was made in breach of public law principles. 105. In my view, the construction of section 84(1)(e) I propose is preferable for four reasons. First, it would be consistent with one of the statutory policies and objects of the immigration legislation which was reconfirmed by Sedley LJ in Mirza, viz. to enable the courts within the framework of the immigration legislation to deal compendiously with all issues concerning the lawfulness of a person's continued residence in the UK. It is logical that all issues should be dealt with in the legislative context, rather than outside it.’[123]It follows that the SSHD should consider the unfairness that has, or appears to have occurred in this case and to give appropriate effect to any unfairness that is considered to have occurred, if necessary by the application of discretionary powers in relation to the nature and terms of any LTR that is granted. Any failure to do so could lead to a yet further recourse to an appeal or a claim for judicial review which, given the long and unfortunate history of this case is to be avoided at all costs. 9. Conclusion[124]Mr Zahoor is entitled to a judicial review of the SSHD’s decision dated 5 October 2012. That decision should be set aside. Mr Zahoor is entitled to a direction that the SSHD should reconsider its decision of 5 October 2012 on the basis that, at the time when Mr Zahoor submitted his application for LTR dated 30 January and his application to vary or replace that application with his application dated 20 April 2011, he had valid leave to remain so that the application should be reconsidered by reference to IRs 281– 289 and on the basis that the SSHD was reconsidering its decision dated 16 November 2011. The SSHD should also consider whether to exercise her discretion with regard to immediately granting ILR, when grant for LTR should run from, for how long a grant of LTR should run for and any other relevant question arising out of that further reconsideration. HH Judge Anthony Thornton QC