Zahoor v Secretary of State for the Home Department

An application is accompanied by the specified immigration fee where it supplies authorisation or billing data enabling the Secretary of State to obtain the entire fee without further recourse to the payer. Validity depends on that accompanying authorisation, not on whether payment is actually obtained.

Where the Secretary of State alleges invalidity because payment failed, the evidential burden of proving what billing data were supplied and whether they were correctly used rests on the Secretary of State. An erroneous invalidity decision does not determine the application, terminate section 3C leave, or prevent the applicant proving validity in later proceedings. A later application may be treated as a variation of the earlier application. The decision under challenge was therefore required to be reconsidered under the pre-9 July 2012 Immigration Rules.

The claimant, whose limited leave to remain was due to expire, attempted to apply as the spouse of a person present and settled in the United Kingdom. His first personal application was rejected because the form had been dated too early. He then submitted a postal application before his leave expired, supplying debit-card billing data.

The Secretary of State later treated that application as invalid because the bank had not paid the fee. The claimant submitted a further application, which was treated as fresh and refused on the basis that he had no leave. The First-tier Tribunal declined jurisdiction over his appeal. Following reconsideration, the Secretary of State granted limited leave under Appendix FM rather than considering the application under paragraphs 281–289 of the Immigration Rules. The central issue was whether the earlier application was valid and whether the later application varied it.

1. Judicial review allowed. The decision dated 5 October 2012 was set aside and remitted for reconsideration.
2. The correct question under regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 was whether the application was accompanied by the specified fee. In a card-payment case, that meant whether accurate billing data and authorisation had been supplied which would enable the Secretary of State to obtain the entire fee without further recourse to the payer. Actual receipt of payment was not the test.
3. The evidential burden of proving what billing data had been supplied and whether it had been correctly used lay on the Secretary of State. The claimant had proved that the application was sent and that the relevant account contained sufficient funds. The Secretary of State had retained no billing or processing evidence and had applied the wrong test. The application was therefore valid.
4. Section 3C of the Immigration Act 1971 operated automatically when the in-time application was made and the existing leave expired without the application being decided or withdrawn. The Secretary of State’s assertion that the application was invalid did not determine its validity, extinguish the application, or terminate the extended leave. The Secretary of State remained under a duty to decide it.
5. The later application was properly analysed as an application to vary the earlier application, particularly because it changed the method of payment and did not withdraw the earlier application. Such variation was permitted by section 3C(5). The claimant could establish the validity of the earlier application in the later decision and related proceedings without first having the earlier administrative decision quashed.
6. The First-tier Tribunal had erred in declining jurisdiction. The refusal based on the legally erroneous conclusion that the claimant lacked leave was itself an immigration decision capable of appeal. The Secretary of State’s reconsideration had wrongly treated the later application as fresh and had failed to consider the validity of the earlier application.
7. The Secretary of State was directed to reconsider the application under paragraphs 281–289 of the Immigration Rules, and to consider the unfairness caused by the administrative errors when deciding the length and commencement of leave and whether to exercise discretion to grant immediate indefinite leave to remain.

The judgment describes earlier proceedings before the First-tier Tribunal, which held on 7 February 2012 that it had no jurisdiction to hear the claimant’s appeal. The Secretary of State later withdrew and reconsidered the underlying decision pursuant to a consent order. This judicial review challenged the reconsideration decision dated 5 October 2012.