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

An online application made through the prescribed process is made on submission, even though mandatory documents are due later. Failure to supply a document may invalidate the application when considered, without retrospectively erasing it from the date of submission. Transitional provisions applying the old Immigration Rules to applications made before a specified date include the initial validity assessment. Reading application as valid application would leave no date for an invalid online application and prevent the procedural deadline operating. The statutory policy governing continuation of leave pending a variation decision is distinct and does not control the meaning of application in the Rules.

The appellant, an Indian national whose Tier 4 leave was due to expire on 25 October 2014, submitted an online application for further leave on 22 October. The Rules required his passport to be provided within 15 working days. It was not provided by the deadline. After the appellant’s passport was seized on 15 November, the Secretary of State rejected the application as invalid on 19 November.

A Deputy High Court Judge dismissed the judicial review claim: [2015] EWHC 3633 (Admin). The appeal concerned whether application in the transitional provisions in HC693 meant a valid application, whether online submission started the procedural clock, and what effect later possession of the passport had.

Appeal dismissed. Lord Justice Irwin gave the judgment and Lord Justice Lewison agreed.

1. The relevant provisions of the Immigration Rules required an online application in the specified form and mandatory supporting documents within 15 working days. Paragraph 34G fixed the date of an online application as the date of submission. The scheme therefore distinguished making the application from the later assessment of compliance and validity.
2. The transitional provision in HC693 applied to an application made before 6 November 2014. The phrase requiring the application to be decided under the Rules in force on 5 November was broad enough to include the initial consideration of validity. Treating application as meaning valid application would leave no date for an invalid online application and would prevent the 15-day period from beginning. It would also create an incoherent division between the Rules governing validity and those governing the substance of the application.
3. The reasoning in R (Iqbal) v SSHD concerning section 3C of the Immigration Act 1971 arose in a different statutory context. Section 3C conferred the advantage of continuing leave while a variation application remained undecided. That policy did not govern the timetable established by the Immigration Rules. However, the Supreme Court’s reasoning concerning Ehsan provided an apt parallel: a later failure to comply with a requirement did not retrospectively invalidate an application from its inception. There was no material distinction between biometric information and a passport for that purpose. This differed from failure to take a step required for validity at the outset, such as payment of the fee.
4. The appellant had made an application in proper form through the online portal on 22 October. It was valid at that time. The later failure to provide the passport caused it to be invalidated when the matter was considered on 19 November, but not retrospectively from the beginning. The appeal was nevertheless dismissed, leaving the rejection as invalid under the applicable Rules undisturbed.

By way of an alternative observation, the court stated that, if necessary, the procedural clock would run from online submission even where the application later proved invalid from the outset.

• Court of Appeal (Civil Division): appeal dismissed. Judgment dated 17 July 2018, [2018] EWCA Civ 1669.
• High Court of Justice, Queen’s Bench Division, Administrative Court: judicial review claim dismissed by a Deputy High Court Judge on 15 December 2015, [2015] EWHC 3633 (Admin).