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

Paragraph 34 of the Immigration Rules is construed using ordinary principles of statutory construction, beginning with the natural meaning of its words in context. A later application made while an earlier application remains outstanding is a variation of that earlier application under paragraph 34BB(2).

A variation must itself comply with paragraph 34. If it fails to do so, paragraph 34E makes the variation invalid and prevents its consideration. That invalidity does not extend to the original application. Until a variation has complied with the biometric process, the original valid application remains eligible for determination.

The applicant sought judicial review of the Secretary of State’s decision of 20 August 2018. The decision rejected an application for indefinite leave to remain as invalid because the applicant had not supplied biometric information, and treated him as an overstayer.

He had made an earlier valid application for leave to remain on family and private life grounds. His later application was treated as a variation. The central issue was whether invalidity of that variation under paragraph 34E of the Immigration Rules also invalidated the earlier application.

1. The application for judicial review was granted. The Secretary of State’s decision of 20 August 2018 was quashed because it rested on an erroneous construction of paragraph 34 of the Immigration Rules.
2. Paragraphs 34 to 34F were to be construed by ordinary principles of statutory construction, beginning with their natural meaning in context. Paragraph 34BB(2) meant that the later indefinite-leave application was a variation of the earlier outstanding application.
3. Paragraph 34E required that variation to comply with paragraph 34 as if it were a new application. The biometric obligation was forward-looking: compliance could occur only after the Secretary of State issued the biometric enrolment letter. The variation was pending compliance until then, and became invalid when the applicant failed to provide the biometric information within the required time.
4. The wording of paragraph 34E confined the consequence of non-compliance to the variation. It provided that the variation would be invalid and would not be considered. It did not invalidate the original application, which remained valid and eligible for determination.
5. R (Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department [2016] UKSC 63 and R (Singh) v Secretary of State for the Home Department [2018] EWCA Civ 1669 were distinguishable. They concerned applications rather than a variation under the materially different version of paragraph 34E applicable here. The Secretary of State was ordered to pay the applicant’s reasonable costs, subject to detailed assessment if not agreed.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the Tribunal quashed the Secretary of State’s decision of 20 August 2018: [2019] UKUT 417 (IAC).
• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal to the Court of Appeal was refused.