Kousar & Ors v The Secretary of State for the Home Department

An application under the points-based immigration system is invalid where the applicant fails to provide the specified authority for payment of the required fee. Sufficient funds, or information from which the correct fee could be inferred, does not cure the omission.

The Basnet evidential approach applies where the applicant demonstrates that the necessary payment steps were taken and the failure occurred in processing. It does not shift the burden where the defect is apparent on the application form. Evidential flexibility cannot supply a missing payment authority. An invalid application is not an immigration decision carrying a statutory right of appeal.

The First Appellant applied for further leave to remain as a Tier 1 (Entrepreneur) Migrant on the day before her existing leave expired. She completed the application form but failed to tick the box authorising collection of the fee. The Secretary of State treated the application as invalid.

She then made a fresh application after her leave had expired. That application was valid but was refused on its merits. The First-tier Tribunal treated the first application as valid, applied the Basnet approach and allowed the appeal. The Upper Tribunal held that the First-tier Tribunal had no jurisdiction because the first application was invalid and the second application generated no right of appeal under the legislation then in force. The central issues were whether the jurisdiction point could be raised late, whether Basnet applied, and whether evidential flexibility or fairness required acceptance of the first application.

1. Appeal dismissed. Lord Justice Irwin held, with Baker and Lindblom LJJ agreeing, that the Respondent was entitled to raise the jurisdictional objection before the Upper Tribunal. Tribunal jurisdiction is statutory and cannot be created by consent, waiver or failure to take the point below.
2. The first application did not comply with Immigration Rules paragraph 34A(ii) and paragraph 34C. The Appellant had not authorised payment in the specified form. The payment pages were separated and sent to the Respondent’s commercial partner, so the tick was a substantive authority rather than a mere formality. The points-based system favoured clarity and objective compliance, and the result was neither unfair nor disproportionate.
3. The Basnet principle did not assist. In Basnet, the applicant had authorised payment and had sufficient funds, while the issue was whether a later processing failure had occurred. The evidential burden could then fall on the Secretary of State. Here, the defect was apparent on the face of the form. Following Mitchell (Basnet Revisited), the Secretary of State need provide further evidence only where the applicant first demonstrates that the necessary steps to authorise and effect payment were taken.
4. Paragraph 245AA of the Immigration Rules could not cure the omission. The missing matter was an authorisation, not information elsewhere in the form or a defective document within the defined evidential-flexibility process. Mudiyanselage confirmed that there was no general policy permitting correction of minor errors.
5. The second application was a fresh application made after the expiry of leave. Although valid, it did not give rise to a statutory right of appeal. The First-tier Tribunal therefore had no jurisdiction, and the merits of that application did not arise in this appeal.

• Court of Appeal (Civil Division) — The appeal from the Upper Tribunal was dismissed. The Court held that the First-tier Tribunal had lacked jurisdiction because the first application was invalid.
• Upper Tribunal (Immigration and Asylum Chamber) — Deputy Judge Hanbury held that the First-tier Tribunal had erred in law and had no jurisdiction to entertain the purported appeal.
• First-tier Tribunal — Judge Lewis treated the first application as valid and proceeded to consider the merits.