UK Immigration Case: Ved and another (appeal-able decisions; permission applications; Basnet) [2014] UKUT 150 (IAC)

New case from the Upper Tribunal, Ved and another (appeal-able decisions; permission applications; Basnet) [2014] UKUT 150 (IAC), is on the issue of Immigration applications the Home Office regards to be invalid. The Tribunal believe in parallel to the view of the Home Office that a decision made on an immigration application that is  invalid cannot be appealed to the Tribunal. If an applicant does decide that they want to appeal the Home Offices decision they require a later application and a formal immigration decision which can be appealed. Alternatively, applicants can submit an application for judicial review. 

Facts of the Case

The applicants, were husband and wife who are Tanzanian nationals who entered the UK on 17 March 2012 on Visitor’s Visa. During their visit they made an application on 21 June 2012 for indefinite leave to remain as dependent relatives of their daughter, who is a person present and settled in the UK. The married couple both received letters from the respondent on 8 August 2012, stating:

“Your application is invalid and we are returning the application form and documents received from you. Please read this letter to ensure that you understand what you need to do in order to make a valid application.”

The reason for refusal for both applicants was due to the necessary payment not matching with the application that they had submitted. The applicants were given the option of returning the fully completed application form with the appropriate fee. Once again on 27 October 2012, the applicants application was considered invalid, again for the same reason – incorrect payment.

The applicants proceeded to appeal the Home Offices decision to the First-tier tribunal, along with a judicial review application in the High court. The grounds of appeal to the First-tier Tribunal relied heavily on the determination in Basnet (validity of application – respondent) [2012] UKUT 00113(IAC)

Determination and Reasons

Ms Khan, the Home Office Presenting Officer stated:

“submitted that there was no valid appeal before me to determine because there had been no immigration decision taken by the respondent and that the most appropriate venue for the validity of these applications to be determined was in the Administrative Court where the appellant(s) had an application for Judicial Review pending… She submitted that the case of BASNET could be distinguished from this case because in that case the application had been rejected and then refused when resubmitted because the appellant had not got leave at the time the second application was made…”

Judge Hawden-Beal accepted this submission by Khan:

“Having considered all of the submissions, the evidence and having read both Bundles relied upon, on the face of it, I am satisfied that the applications initially made on June 20th 2012 were valid. BUT this does not avail the appellants in this matter because an immigration decision has not been made which distinguishes this hearing from BASNET. In BASNET an application was rejected and then when it was re-submitted a decision was taken to refuse it without a right of appeal because, having no extant leave to remain the appellant did not have an established presence in the UK and as a consequence did not have sufficient funds to maintain himself. There was therefore an immigration decision made inBASNET, against which to appeal but there is none in this case.”

Judge Hawden-Beal made the decision to refuse permission to appeal to the Upper Tribunal.

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