Shana Milini Jo Mitchell v Secretary of State for the Home Department

Where an application is facially incomplete because its payment mandate is unsigned, the reasoning in Basnet v SSHD does not require the Secretary of State to prove that the application was invalid. The applicant is aware of a defect apparent on the form and must establish that an in-time valid application was made.

Prompt challenge is important. Payment records are retained for 18 months, during which the Secretary of State can ordinarily investigate whether payment was taken and the applicant can obtain relevant information. The reason for a bank’s refusal remains available to the account holder, so the burden of proof may require a nuanced approach.

The appellant, a Jamaican national, applied for leave to remain on health grounds. The First-tier Tribunal dismissed her appeal under the Immigration Rules but allowed it on Refugee Convention grounds, finding that she had a well-founded fear of persecution in Jamaica.

She appealed only the rejection of her claim to ten years’ lawful residence. She contended that an application posted shortly before her previous leave expired was valid and therefore extended her leave under section 3C of the Immigration Act 1971. The Secretary of State had returned that application as invalid because the payment mandate was not signed. The central issue was whether Basnet v SSHD [2012] UKUT 0113 (IAC) placed the burden on the Secretary of State to prove that invalidity.

1. Appeal dismissed. The First-tier Tribunal was entitled to find that the appellant had not established ten years’ lawful residence. Its findings allowing the appeal on Refugee Convention grounds and dismissing it under the Immigration Rules were affirmed.

2. Basnet v SSHD [2012] UKUT 0113 (IAC) did not govern this case. In Basnet, the application was facially complete and the alleged failure concerned collection of payment after submission. The relevant facts were therefore solely within the Secretary of State’s knowledge. Here, the asserted defect, an unsigned payment mandate, was apparent from the form and within the applicant’s knowledge. The appellant and her representatives had also treated the first application as invalid at the time and did not assert that it had been signed until years later.

3. Accordingly, the appellant could not place the burden on the Secretary of State to prove that the January 2010 application was invalid. The contemporaneous evidence supported the Secretary of State’s position. There was no valid in-time application capable of extending leave under section 3C of the Immigration Act 1971.

4. The Tribunal added that payment pages are retained for 18 months. During that period the Secretary of State should be able to investigate whether payment was obtained, while an applicant may obtain the payment page and seek the bank’s reasons for a declined payment. Since the Secretary of State does not receive those reasons, the burden-of-proof analysis in a completed-mandate case may require a more nuanced approach.

5. No anonymity order was made.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal concerning ten years’ lawful residence and affirmed the First-tier Tribunal’s decision.

• First-tier Tribunal: Judge Agnew dismissed the appeal under the Immigration Rules but allowed it on Refugee Convention grounds.