Zahoor Ahmed & Ors v Secretary of State for the Home Department

Where a postal immigration application is facially complete and the Secretary of State later attempts to take payment, the Secretary of State bears the legal burden of proving that the application was invalid because payment was declined. The payment process is within her knowledge and control.

Delay in challenging invalidity does not transfer that burden. It may, however, affect whether the Secretary of State has discharged an initial evidential burden and ultimately the legal burden. The outcome depends on the quality of the Secretary of State’s payment evidence, the availability of payment records, any delay in seeking them, and the appellant’s rebuttal evidence.

The appellants’ October 2012 applications for Tier 4 leave and dependent leave were treated as invalid after an alleged rejection of card payment. Their later applications were refused because the bank evidence was then out of date.

An earlier First-tier Tribunal allowed the appeals, finding that the Secretary of State had not proved invalidity. That decision was set aside by the Upper Tribunal and the appeals were remitted. On remittal, the First-tier Tribunal dismissed the appeals, holding that the appellants bore the burden of proving that they had supplied correct payment details and had sufficient funds.

The central issue was whether, under Basnet (validity of application – respondent) [2012] UKUT 113 (IAC) and Mitchell (Basnet revisited) [2015] UKUT 562 (IAC), the burden of proving invalidity rested on the Secretary of State where the applications were facially complete but payment was allegedly declined.

1. Appeals allowed. The First-tier Tribunal materially erred by placing the burden of proving validity on the appellants. Its decision was set aside.

2. The Tribunal endorsed the distinction in Mitchell (Basnet revisited) [2015] UKUT 562 (IAC). An appellant bears the burden where an application is facially incomplete, such as an unsigned payment mandate. That was not this case. The applications were not alleged to be facially defective; the Secretary of State alleged that the issuing bank declined payment after a further payment-processing stage.

3. Applying Basnet (validity of application – respondent) [2012] UKUT 113 (IAC), the Secretary of State bore the legal burden on the balance of probabilities. The decisive payment-processing events occurred after submission, were outside the appellants’ knowledge and control, and were within the Secretary of State’s knowledge.

4. Delay in challenging invalidity did not alter the allocation of that burden. It was relevant to whether the Secretary of State had produced sufficient initial evidence and, with other evidence, had ultimately proved invalidity. A GCID entry recording that payment was declined was sufficient to require rebuttal evidence from the appellants. It was not sufficient, on the facts, to discharge the ultimate burden.

5. The Capital One letters, stating that no payments had been declined during the relevant period, were material rebuttal evidence. They supported the possibilities that either incorrect card details were supplied or that the Secretary of State entered them incorrectly. There could be no presumption that the appellants made an error or that the payment system was infallible.

6. The appellants’ evidence that the card details had been carefully checked, together with the absence of fuller payment evidence from the Secretary of State, established that the October 2012 applications were valid. Their leave therefore continued under Immigration Act 1971, section 3C. The 2014 decisions were not in accordance with the law because they proceeded on the erroneous basis that the applications were first made in February 2013. The outstanding applications await lawful consideration.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeals, set aside the remitted First-tier Tribunal decision for material error of law, and re-made the decisions in the appellants’ favour.

• First-tier Tribunal: On 10 January 2017, dismissed the appeals after holding that the appellants had not proved the validity of their October 2012 applications.

• Upper Tribunal (Immigration and Asylum Chamber): On 25 May 2016, set aside an earlier First-tier Tribunal decision which had allowed the appeals, and remitted the matter for reconsideration in light of Mitchell (Basnet revisited) [2015] UKUT 562 (IAC).

• First-tier Tribunal: On 20 October 2015, allowed the appeals on the basis that the Secretary of State had not proved that the October 2012 applications were invalid.