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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaur & Anor, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWCA Civ 821 (28 June 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/821.html Cite as: [2017] EWCA Civ 821 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE COKER
Case No JR/9174/2015
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF (1) MANJIT KAUR (2) POONAMDEEP KAUR |
Applicants |
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- and – |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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The Respondent was neither represented nor appeared
Hearing date: 19 June 2017
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Crown Copyright ©
Lord Justice Hickinbottom :
Introduction
Background
"I… understand that my visa application fee will be refunded only if the application is withdrawn in writing within 3 months and 7 days of the original date of application and prior to the submission of biometric data or any processing taking place."
As I understand it, that properly reflected the Secretary of State's policy with regard to refund of fees.
"On attendance the [Registration Officer] refused to accept the application claiming that some documents were missing. It later transpired that the [Officer] was referring to English language certificates for Manjit Kaur. The certificate however was in the bundle and therefore appointment of the [Applicant] was ineffective. However, the [Officer] assured the [Applicant] that the appointment would be rescheduled and notification would be given."
The primary complaint was therefore that the applications were complete and the Registration Officer had, for some reason, refused to process them by (amongst other things) not collecting the Applicants' biodata. It certainly seems clear that, as a result of the Officer considering that Mrs Kaur had not provided sufficient evidence of having passed an English language test, no biometric data were collected. In respect of the further appointment, the Applicants say that, despite the assurance and despite attempts by their solicitors (12 Bridge Solicitors ("12 Bridge")) to obtain one, no new appointment was given.
"… the VAC will contact you or you will need to create and pay for a fresh application and make a request for a refund for the fee for the original application."
The email confirmed that any final decision on any visa application would be made by an ECO assigned to the case "on the merits of the evidence and documentation supplied".
"If you made your appointment within your online application you will need to make a new application."
The appointment confirmation, in the form received by the Applicants in this case, also confirms:
"Failure to submit documents may result in delay and/or lead to refusal of your application."
The Judicial Review Claim
"… and that we can attend again to provide all the documents. We were informed by the officer that an appointment would be arranged for us to attend again and we could provide the documents to them then." (paragraph 6).
That does not address the issue of whether a new application was or was not necessary – it does not suggest that the Officer expressly said that it would not be necessary – and, given that Mrs Kaur's account of that meeting so far as the language test documents was found to be wanting by the judge, I have no real doubt that, had the judge taken this new evidence into account, her decision on this ground would not have been different.
The Appeal
The Review Application
"Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it."
That emphasises the need for the party in default to keep the court informed, and to ensure that the procedural position is regularised promptly. However, the Civil Appeals Office does not in practice require a formal application to be made to extend time for filing documents: it will act upon a letter or email. That is reflected in the standard letter issued by the office at the outset of an appeal, which states:
"If you are unable to comply with any of the relevant time limits and there are good reasons for an extension of time, you should write, wherever possible before the time limit has expired, to the Civil Appeals Office setting out the reasons and the length of extension sought. You will then be informed whether or not an extension has been granted."
Conclusion