Baldwin, R (On the Application Of) v Secretary of State for the Home Department

An application paid by payment card is not accompanied by the specified fee where a valid payment authorisation is declined because the account lacks sufficient funds. Validity crystallises when the first payment request is made, and the Secretary of State need not investigate the failure or make repeated requests.

Procedural fairness may exceptionally require flexibility in applying a strict fee regime, but harshness alone is insufficient. A policy providing for an early removal decision where there are exceptional or compelling reasons does not require such a decision in every case producing serious personal consequences. Exceptionality implies rarity.

The claimant, a New Zealand national with leave to remain based on ancestry, applied in time for further leave as the spouse of a British citizen. The payment request made using her Visa card was declined because there were insufficient funds, and the application was treated as invalid. A later application, supported by a cheque, was refused after her leave had expired.

She sought judicial review, arguing that the first application was valid and that the Secretary of State should have made a removal decision so that she could appeal the substantive human-rights issues. The central questions were the construction of the fee regulations and whether the removal policy required an early decision on the facts.

1. Claim dismissed. The Secretary of State had not erred in law in treating the first application as invalid or in declining to make an immediate removal decision.
2. Under regulation 7 of the Immigration and Nationality (Fees) Regulations 2012, an application paid for by payment card is not accompanied by the specified fee if a request made using a valid authorisation is declined because of insufficient funds. Validity crystallises when the first request is made. The Secretary of State is not obliged to investigate why payment failed or to make a second request.
3. BE (Application Fee: Effective Non-payment) [2008] UKIAT 89 concerned the need for an authorisation enabling the entire fee to be obtained. Basnet v Secretary of State for the Home Department [2012] UKUT 00113 (IAC) was of limited assistance because it addressed validity of authorisation rather than failure caused by insufficient funds. It nevertheless supported prompt processing of the payment request.
4. The strict result was harsh, but the statutory scheme had deliberately contained that potential harshness since 2007. No procedural unfairness arose on these facts. Exceptional cases might require flexibility where the Secretary of State’s conduct makes that necessary.
5. The policy concerning early removal decisions, adopted in the light of R (Daley-Murdoch) v Secretary of State for the Home Department [2011] EWCA Civ 161, did not require a decision here. The claimant’s distress and practical difficulties were serious but not exceptional or compelling. The Secretary of State was entitled to reach that conclusion, and there was no separate Article 8 route outside the policy requiring removal.
6. The later out-of-time application attracted no right of appeal under sections 82(1) and 82(2) of the Nationality, Immigration and Asylum Act 2002, and section 3C of the Immigration Act 1971 did not assist.