Walker, R (on the application of) v Secretary of State for the Home Department

The statutory and rule-making framework may prescribe procedures for immigration applications made both within and outside the Immigration Rules. Where a specified form requires mandatory photographs or documents, failure to provide them ordinarily invalidates the application. Any discretion to overlook non-compliance is exceptional and depends on relevant material being placed before the Secretary of State when the application is considered. A later application cannot operate as a variation of an earlier application which was invalid from the outset.

The claimant, a Jamaican national, sought judicial review of the Secretary of State’s refusal to grant further leave to remain and of the Asylum and Immigration Tribunal’s refusal to accept that an appealable immigration decision had been made. Her initial application was submitted shortly before her existing leave expired, but it lacked a required photograph. It was returned as invalid and resubmitted after expiry of leave.

The central issue was whether the first application was valid, whether the form and photograph requirements applied to an application made outside the Immigration Rules, and whether the later application could be treated as a variation of the first.

1. Outcome. Permission was granted on the validity issue, but the substantive claim was refused. Permission was refused on the Article 8 and no-appealable-decision grounds. No firm conclusion on delay was required.
2. Statutory power and scope of the Rules. Section 50(1) of the Immigration, Asylum and Nationality Act 2006 expanded the rule-making power under section 3 of the Immigration Act 1971 so that Immigration Rules could prescribe procedures for applications or claims whether or not made under the Rules. The wording of section 50(2), concerning any application in connection with immigration, supported the same conclusion.
3. Specified forms and invalidity. The form was specified under paragraph 34 of the Immigration Rules. Paragraph 34A(vi)(a) therefore required the application to include mandatory photographs and documents, and paragraph 34C made non-compliance fatal to validity. This applied even though the application was made outside the substantive Immigration Rules.
4. Discretion. The Secretary of State’s instructions allowed exceptional flexibility, but discretion depended on relevant material being available at the time. The claimant’s form made the photograph mandatory, the covering letter said the photographs had been provided, and the resubmission gave no explanation capable of supporting an exercise of discretion. The case was therefore materially different from R (Forrester) v SSHD [2008] EWHC 2307 (Admin), where the grounds for exercising discretion had been before the decision-maker.
5. Variation and section 3C leave. JH (Zimbabwe) v SSHD [2009] EWCA Civ 78 concerned a valid in-time application which could potentially be varied under section 3C(5) of the Immigration Act 1971. Here the first application was invalid, so there was no application capable of variation before the claimant’s leave expired.

First-instance judicial review proceedings. The court granted permission on the validity-of-application issue but refused the substantive claim.