Da'Costa, R (on the application of) v Secretary of State for the Home Department

An application accompanied by an unpaid or uncollectable fee is invalid under the applicable fees regulations. The Secretary of State has no discretion under the Immigration Directorate Instructions to treat it as valid; a later application with the fee takes effect from its date.

Where an applicant was an unlawful overstayer when applying for leave, the Secretary of State may ordinarily decide whether to make removal directions at the same time as refusing leave. A different approach is required only where exceptional circumstances justify it. Health, alleged dependency and the absence of an in-country appeal did not meet that threshold. A family-reunion policy may be sufficiently considered without express reference to it where its substance has been addressed.

The claimant, the mother of a recognised refugee settled in the United Kingdom, sought judicial review of decisions refusing her leave to remain. Her first application was submitted in time but was invalid because the fee could not be collected. She resubmitted it with the fee after her existing leave had expired.

The Secretary of State refused the application under the Immigration Rules and outside them, and considered the claimant’s human-rights case, but did not make removal directions under section 10 of the Immigration and Asylum Act 1999. The claimant challenged the refusal on three grounds: alleged discretion to treat the first application as valid, failure to apply the refugee family-reunion policy, and failure to make an appealable removal decision.

1. The claim was dismissed. The claimant had no in-country right of appeal against refusal of leave because the valid application was made after her leave expired.
2. Paragraph 21 of the Immigration and Nationality Fees Regulations 2007 made the original application invalid because the specified fee was not successfully paid. The Immigration Directorate Instructions distinguished invalidity under the Immigration Rules, where a limited discretion existed, from invalidity caused by non-payment of fees. Paragraph 18.3 expressly provided that there was no discretion to accept an application as valid by waiving a specified fee. The later application was therefore valid only from its resubmission date.
3. The refugee family-reunion policy did not require express citation in the decision letter if the substance of the relevant question had been considered. The Secretary of State had considered whether sufficiently compassionate circumstances existed, including whether the claimant would have family support and would live alone in the most exceptional compassionate circumstances. There was no realistic prospect of a different outcome.
4. For a person who was an unlawful overstayer when the application for leave was made, the default position was that the Secretary of State could choose whether to issue removal directions at the same time as refusing leave. A departure from that position required exceptional circumstances. The reasoning in TE (Eritrea) v Secretary of State for the Home Department was treated as arising in the materially different context of an applicant who had applied while lawfully present. The approach in R (Daley Murdoch) v Secretary of State for the Home Department and R (Suphachaikosol) v Secretary of State for the Home Department supported the default rule.
5. The claimant’s ill-health, alleged dependency, lack of an appeal and the fact that unlawfulness resulted from the invalidity of an earlier in-time application were not sufficiently exceptional. No proper distinction arose between that situation and cases involving longer periods of overstaying. The Secretary of State was not required to decide removal at that stage.