Invalid Visa Applications Case Study: Kousar & Ors v SSHD [2018] EWCA Civ 2462

The recent determination of Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462 (“Kousar”) highlights how easy it can be to submit an invalid visa application. Serious issues can arise from invalid visa applications, as during the process of having to submit a fresh valid application may lead to some Applicants unwittingly becoming overstayers, as was the case in Kousar. Our specialist immigration team ensure all of our clients’ applications are valid before they are submitted, in order to avoid any invalid visa applications being made and avoid the hassle and expense of the complex immigration appeal process. Contact us today in order to book a consultation with our solicitors.

Invalid Visa Applications Case Study: Background to Kousar

The Appellant initially entered the UK as a Tier 4 (General) Student in December 2010 and her leave as a student was extended until 13 August 2014. The day before this leave expired, the Appellant made an in-time application for further leave to remain as a Tier 1 (Entrepreneur) migrant. Although the Appellant had enough funds to pay the application fee and she provided her bank details on the payment page, she did not tick the box on the form which authorises the transfer of the fee. Therefore the Secretary of State (“SSHD”) treated the Appellant’s application as invalid and wrote to the Appellant on 15 August 2014 informing her of the same.

The Appellant then submitted a further application for further leave to remain, however as her previous Tier 4 leave had expired on 13 August 2014, the Appellant had no valid leave in the UK and therefore had no right of appeal. Although this further application was valid, it was refused on 21 October 2014 on merits.

The Appellant initially challenged the SSHD’s decision on the validity of her first application by way of a Judicial Review claim before the Upper Tribunal on 19 January 2015.  The matter was considered on the papers and the judge refused permission to apply for Judicial Review on 6 August 2015 because it was unarguable that the Appellant had made a valid application for leave to remain before her expiry of her leave. The judge further concluded that it was unarguable that the Appellant was entitled to a right of appeal in respect of that application. The Appellant also sought to challenge the decision that the original application was invalid by way of an attempted appeal to the First-Tier Tribunal (“FtT”), which was filed on 17 December 2014.

Invalid Visa Applications Case Study: Facts to Kousar

The appeal was heard on 21 October 2015. The Appellant’s representatives relied on the guidance in Basnet (validity of application – respondent) [2012] UKUT 00113(IAC) (“Basnet”) and the “evidential flexibility” policy. Basnet established that the “validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account”. Paragraph 34 of the Immigration Rules currently governs the validity of immigration applications. However, at the time of the Appellant’s application the validity of applications was contained under Rule 34A(iii) and (iii):

ii) any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable,

(iii) any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified.

 Further, paragraph 34C states:

34C. Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.

Therefore the rigor of the rules meant that there is no discretion in such situations.

The “evidential flexibility” policy under paragraph 245AA of the Immigration Rules was also not found to apply in the Appellant’s case. The Appellant’s appeal was therefore refused.

Access the full judgement here: Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462 | LEXVISA Immigration Lawyers London

How to avoid making Invalid Visa Applications

The best advice in avoiding making invalid visa applications is to ensure the form is read through thoroughly before it is submitted. It is advisable to seek the assistance of legal representatives in order to prepare a UK visas and immigration application, such as our immigration team. We pride ourselves on our attention to detail and prepare our clients applications as strongly as possible to ensure they have the greatest chance of success. Furthermore, with the Home Office introducing the new online forms for further leave to remain applications, it will soon be impossible for applicants to ‘forget’ to tick the box confirming the authorisation for payment.

Using Legal Representation to avoid submitting Invalid Visa Applications to the Home Office

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to avoid submitting invalid visa applications to the Home Office.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successfully avoid submitting Invalid Visa Applications to the Home Office

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to avoid submitting invalid visa applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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