Kapil Basnet v The Secretary of State for the Home Department

For an application requiring a fee under the Immigration & Nationality (Fees) Regulations 2011, validity turns on whether it was accompanied by the fee, not on whether payment was successfully processed. An application is accompanied by the fee where it includes a valid authority enabling the respondent to obtain the whole fee from available funds without further recourse to the payer.

Where the respondent asserts that an in-time postal application was invalid because payment failed, the respondent bears the evidential burden of showing that the necessary payment authority was not supplied. The respondent’s payment-processing system should preserve and provide the information needed to resolve that issue. Tribunal duty judges should direct its production where validity is disputed.

Kapil Basnet v The Secretary of State for the Home Department concerned a Nepalese student who applied, before his leave expired, to extend his Tier 4 leave. The respondent later treated that application as invalid after an attempted card payment failed, without identifying the particular reason. The appellant promptly made a further application, which was refused because it was out of time and he could not meet the higher maintenance requirement.

The First-tier Tribunal held that it lacked jurisdiction because no fee had been paid. The appellant appealed to the Upper Tribunal. The issues were whether the Upper Tribunal could entertain that appeal, whether the original application was validly made, and consequently whether there had been a right of appeal to the First-tier Tribunal.

1. Appeal allowed. The First-tier Tribunal erred in holding that it lacked jurisdiction. Its determination declining jurisdiction could be appealed to the Upper Tribunal; the position was on all fours with Abiyat (Rights of Appeal) Iran [2011] UKUT 314 (IAC).

2. Regulation 37 of the Immigration & Nationality (Fees) Regulations 2011 makes an application invalid unless it is accompanied by the specified fee. That inquiry is not whether the payment was ultimately collected. Applying BE (Application Fee: Effect of Non-payment) [2008] UKAIT 00089, the question is whether the application included authority enabling the respondent to obtain the entire fee without further recourse to the payer.

3. Where the respondent alleges that an application received in time was not accompanied by such authority, the evidential burden lies on the respondent. The respondent controls the postal-payment process and alone can answer whether accurate billing information was supplied. Its procedure destroyed the billing page and retained no processing record, leaving the appellant and the Tribunal without the best evidence.

4. On the evidence, the respondent had not shown that the appellant supplied incorrect payment details. The appellant had sufficient funds and gave credible evidence that he had provided correct data. It was more probable than not that the first application was accompanied by the fee and was validly made.

5. There was therefore a right of appeal to the First-tier Tribunal. As it was undisputed that the application should succeed on its merits if validly made in time, the appeal originally brought to that Tribunal was allowed. The respondent was to decide the period of leave in light of the appellant’s current circumstances.

The Tribunal added that the postal-payment procedure appeared substantively unfair and required review. It advised First-tier Tribunal duty judges to direct production of the relevant payment information where the validity of an application is put in issue.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal and remade the decision, holding that the original application was validly made.
• First-tier Tribunal: held that no valid appeal was before it and declined jurisdiction, because the application fee had not been paid.