Entry Clearance Officer, New Delhi v Jaspreet Kaur

An entry-clearance application requiring a fee is not valid unless it is accompanied by the required payment. Where the Immigration Rules do not effectively establish the application date, the date must be determined by the applicable statutory scheme.

An online application and online fee paid contemporaneously are treated as made on submission. Where the fee is paid only when the signed printed form is handed over, the application is made on that later date. A service provider acting with ostensible authority may nevertheless create conspicuous unfairness where it accepts an application in an obsolete category and takes a higher fee, so that refusal under the new rules is unlawful on the particular facts.

The Entry Clearance Officer appealed against a First-tier Tribunal decision which had allowed Jaspreet Kaur’s appeal to the limited extent of remitting the matter for a lawful decision. She had sought entry clearance as a domestic worker in a private household.

Her online form was submitted on 4 April 2012, but she handed over the signed form, documents and application fee on 9 April 2012. Changes to paragraph 159A of the Immigration Rules took effect on 6 April 2012. She met the earlier Rules but could not meet the amended requirements.

The central issues were the date on which the application was made, whether the transitional provisions applied, and whether the commercial partner’s handling of the application rendered the refusal unlawful.

1. The Entry Clearance Officer’s appeal was allowed in part. The First-tier Tribunal had erred in treating the requirement that the claimant be paid in accordance with the National Minimum Wage Act 1998 as guidance rather than an express requirement of paragraph 159A of the Immigration Rules. The principles in Pankina v SSHD [2010] EWCA Civ 719 and Alvi [2012] UKSC 33 did not invalidate a refusal based on that Rule.

2. The Tribunal held that paragraph 30 of the Immigration Rules did not effectively determine the date of an entry-clearance application because the relevant fee was imposed under the statutory scheme made under the Immigration, Asylum and Nationality Act 2006, rather than under the Consular Fees Act 1980. Regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 made payment a condition of validity. An application not accompanied by the fee was a nullity.

3. An online application made with contemporaneous online payment was valid on submission. Where payment followed later, the online submission was not accompanied by payment. The valid application was made only when the signed printed form and fee were handed over. Accordingly, this application was made on 9 April 2012 and did not fall within the transitional provisions. The appeal under the Immigration Rules was dismissed.

4. However, the commercial partner had accepted the application under the former category and taken the higher former fee while acting in the ordinary course of its contracted functions. It had ostensible authority to do so. On these exceptional facts, the claimant was entitled to infer that discretion had been exercised to consider the application under the former Rules. Refusal under the new Rules was conspicuously unfair and therefore not in accordance with the law.

5. The Tribunal allowed the appeal on that latter ground and directed that entry clearance be granted as a domestic worker.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for error of law. Re-made the decision by dismissing the appeal under the Immigration Rules but allowing it because the refusal was not in accordance with the law.

• First-tier Tribunal: Allowed the claimant’s appeal to the limited extent of remitting it to the Entry Clearance Officer for a lawful decision.