US & Anor v The Secretary of State for the Home Department

A valid immigration application is not invalid merely because it is enclosed with a separate, invalid application by another family member. Where each application requires separate payment, the Secretary of State must assess whether the particular application was accompanied by the appropriate fee. An unpublished practice of treating all contemporaneous family applications as a single invalid application lacks a proper basis. The Secretary of State could instead ask whether valid applications should proceed separately.

The Malaysian appellants, husband and wife, applied before the expiry of their leave for leave to remain under the points-based scheme. Their applications were submitted with their daughter’s separate application in one envelope.

The fee paid was sufficient for the appellants’ joint applications but insufficient for the daughter’s application. The Secretary of State treated all three applications as invalid. An Immigration Judge dismissed the appellants’ appeals, treating the applications together. On reconsideration, the Upper Tribunal considered whether the appellants’ validly funded applications were invalidated by their daughter’s invalid application.

1. The appeals were allowed. The Immigration Judge erred by treating the appellants’ applications as invalid merely because their daughter’s separate application was not accompanied by the required fee.
2. The fee arrangements required the husband and wife to apply together, but required their daughter’s application to be made and paid for separately. The appellants’ joint application was accompanied by the appropriate payment.
3. The Secretary of State had no proper reason to treat a properly funded application as invalid because an invalid application by a family member was in the same envelope. A practice of treating all applications made simultaneously by family members as a single whole could be published in the guidance, but the Tribunal found no proper basis for its use in this case.
4. Where only some applications received together are valid, the Secretary of State could ask whether the applicants wish the valid applications to be processed or all applications to be treated as invalid.
5. The appellants were entitled to the leave sought because their first application was valid and was made in time. Their daughter’s application could remain invalid without affecting that conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): on reconsideration, allowed the appellants’ appeals and held that the Immigration Judge had erred.
• Asylum and Immigration Tribunal: Immigration Judge Jhirad dismissed the appeals, treating the appellants’ and their daughter’s applications together.