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

Under the Immigration Rules, an application route is characterised by how the application form is submitted. A process requiring the completed form to be printed, signed and sent by post is the specified application form route. It is not the relevant online application process merely because the form was completed or paid for electronically, or supporting documents were sent online or by post. The contested requirements that a form be marked as specified and bear a commencement date are satisfied where those matters are clearly displayed beside the form and on its first page. Because the application was correctly classified, the Court did not need to determine the alternative materiality issue concerning biometric information.

The appellant, a Tier 4 student migrant, challenged the Secretary of State’s decision treating his application for leave to remain as invalid because he had not enrolled his biometric information. He had completed the application electronically, printed and signed it, and sent it with supporting documents by post using the print and send process.

Whipple J dismissed the judicial review claim. Permission to appeal was granted on the classification issue but refused on the question whether the Secretary of State should have reused earlier biometric information. The central issue before the Court of Appeal was whether the application was made through the relevant online application process or by using a specified application form. A further issue was whether any error in classification would have been material.

1. Appeal dismissed. Lord Justice Haddon-Cave gave the substantive judgment, with Lord Justice Floyd agreeing. The Court upheld Whipple J’s dismissal of the judicial review claim.
2. At the relevant time, paragraph A34 of the Immigration Rules provided two alternative routes: the relevant online application process and the specified application form route. The print and send process fell within the second route. The decisive feature was that the completed application form itself had to be printed and sent by post. Electronic completion, online payment and the posting of supporting documents did not change that characterisation.
3. Paragraph 34B expressly required a specified application form to be sent by prepaid post. The appellant had followed that process. The Court also rejected technical objections under paragraphs 34(ii) and 34(iii). The wording identifying the form as specified appeared beside the form icon and was sufficient to satisfy the marking requirement. The reference to April 2014, displayed beneath the icon and on the first page, clearly identified when the form came into force.
4. The Court endorsed the same distinction recognised in R (on the application of Wasif) v Secretary of State for the Home Department [2015] UKUT 0270 (IAC). The Court corrected a minor factual detail in Whipple J’s description of the process, but considered that correction strengthened rather than weakened her conclusion.
5. Since the Secretary of State had applied the correct legal framework, there was no error of law. The alternative issue of materiality therefore did not arise and was not determined. The appeal was dismissed.

• Court of Appeal (Civil Division) — In [2019] EWCA Civ 368, the appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — Whipple J dismissed the appellant’s judicial review claim in JR/14157/2014. Permission to appeal was granted on the classification of the application but refused on the issue of using earlier biometric information.