Jayaraman, R (on the application of) v The Secretary of State for the Home Department

Paragraph 34A(v) of the Immigration Rules permits the Secretary of State to vary the timetable for providing biometric information. The scope of any variation must be determined from the communications and the history of the application. Where earlier deadlines and warnings have been given, a further communication will not ordinarily create an open-ended extension without a reasonable basis for that interpretation. Failure to provide biometrics within the varied period may render the application invalid. Problems arising from an applicant’s solicitor or postal arrangements do not, without more, establish illegality or procedural unfairness in judicial review.

The appellant applied for indefinite leave to remain but did not provide biometric information within the initial deadline or the subsequent extension. The Secretary of State treated the application as invalid. The appellant challenged that decision in the Upper Tribunal, arguing that an email and further letter had varied the deadline or created an open-ended extension. Upper Tribunal Judge Martin refused permission to apply for judicial review. The issue on appeal was the legal effect and proper interpretation of the Secretary of State’s communications of 7 January 2016.

Appeal dismissed.

1. Power to vary the timetable. Paragraph 34A(v) of the Immigration Rules allowed the Secretary of State to vary the timetable for providing biometric information. The Secretary of State exercised that power in response to the solicitor’s email of 4 January 2016 and the communications sent on 7 January.
2. Extent of the variation. The communications had to be assessed in the context of the application as a whole. The appellant had first been given 15 working days and then a further 10 working days, with express warnings that the application might be treated as invalid. The further copy of the 17 December letter was taken to have been served. The proper interpretation was that a further extension of 10 working days had been granted. Neither the appellant nor his solicitor could reasonably have understood the communication as granting an open-ended extension.
3. Communication and authority. The case was not one involving an uncommunicated administrative decision of the kind considered in R (Anufrijeva) v Home Secretary [2004] 1 AC 604. The Secretary of State’s communication had legal effect in the circumstances.
4. Public law challenge. Once the further 10-working-day period had expired without enrolment, the application could properly be rejected as invalid. The Secretary of State had followed the applicable procedure. The shortcomings of the applicant, his solicitor or the postal service did not convert the dispute into a proper public law challenge. The Upper Tribunal’s decision was therefore upheld.

• Court of Appeal (Civil Division): dismissed the appeal on 15 November 2018: [2018] EWCA Civ 2545.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Martin refused permission to apply for judicial review on 26 August 2016. An earlier paper application had been rejected by Upper Tribunal Judge Southern.
• Permission to appeal: permission was initially refused by Sir Stephen Silber and later granted by McCombe LJ after an oral hearing.