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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wijesinghe, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1558 (Admin) (04 June 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/1558.html Cite as: [2015] EWHC 1558 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
____________________
THE QUEEN (on the application of CHARITH MISSAKA WIJESINGHE) |
Claimant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Miss J. Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 27 January 2015
____________________
Crown Copyright ©
HHJ Deborah Taylor :
Factual Background
"Thank you for the application by the above-named on Form Tier 4. It will now be passed to a casework unit.
If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem. If there is an issue with the fee you have paid, your application will be rejected and details sent to you on how to make another application.
You should expect to receive further correspondence from us giving you instructions for the next steps in making your application……….
We would appreciate it if you did not enquire about the progress of the application before you hear from us. It is not possible to make enquiries in person about the progress of an application at any of our Public Enquiry Offices, Biometric Enrolment Centres or via our Immigration Enquiry Bureau…….."
Where an application form has been specified in accordance with the Immigration Rules (HC395) the application must comply with the requirements set out in paragraph 34A of these rules and the Immigration ( Biometric Registration) Regulations.
The box crossed on the form to indicate that a requirement had not been met was that which stated
Any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified( we have highlighted the relevant parts on the form which have not been completed)
The form ICD.3463 Ex Gratia Payment Approval was completed by the caseworker. The mandatory sections which had not been completed on the application form were identified as H ("About your previous address"), J ("About your immigration status"), K ("Have you ever claimed public funds") L1-2, L5-24 ("About your course") and M ("About your maintenance"). There were therefore substantial parts of the form left incomplete.
Preliminary Issue: Application to debar the defendant from defending the claim
"the defendant … who wishes to contest the claim or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence within 35 days of the order ..
"A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve-
(a) detailed grounds for contesting the claim or supporting it on additional grounds; and
(b) any written evidence
within 35 days after service of the order granting permission".
That provision was reinforced in the order of HHJ Serota QC. Mr Jafar submitted that the obligation is mandatory, and the Court should exercise its general power to strike out for non – compliance under Rule 3.4(2)(c), albeit there is no automatic sanction applicable to this rule. He referred to the approach taken by this court in R ( on the application of Jasbir Singh and ors) v SSHD [2013] EWHC 2876 (Admin) to successive extensions of time, and submitted that no good reason has been given for the failure to serve detailed grounds in time, and that it is a substantial breach of the rule and order which justifies the striking out of the defence.
The application for judicial review
34A. Where an application form is specified the application or claim must also comply with the following requirements:
(i) Subject to paragraph A34 the application must be made using the specified form,
(ii) any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable;
(iii) any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified.
Paragraph 34C provides
Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A such application or claim will be invalid and will not be considered.
Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day.
This page tells you what action to take if you receive an invalid application on a specified application form.
You must reject an application as invalid if it does not meet the specified requirements of paragraph 34A of the Immigration Rules. Although the rules do not specify a time limit for when you can reject an application, you must do this as soon as possible. You must complete all validation checks, including fee exceptions where they apply, before you reject the application. This ensures that the applicant is not given the impression that their application is valid in all other respects, if there is more than one requirement that their application does not meet.
Action for caseworkers
If you are going to reject the case as invalid, then you must do the following:
• Mark the application as 'Invalid' and sign and date this at the top of section 1, or the front page of the form if different.
• Note the reasons for considering the form to be invalid in the case notes field of CID.
• Return the form and any photographs or documents to the applicant or immigration adviser with an ICD.3676 covering letter. This will be an ICD.3678 or ICD.3679 if there are fee issues.
• Enter REJECT into the CID outcome field.
….
This page tells you when it may be appropriate to use discretion when assessing whether an application made on a specified form is valid.
Because the requirements for an application to be valid are specified in the Immigration Rules, there is an element of discretion. The requirements have been limited to things which are relatively simple to check, important to the decision making process and which applicants normally have no difficulty in complying with. The exercise of any discretion will therefore be confined to exceptional circumstances, and must be authorised by an officer of at least SEO level (Deputy Chief Caseworker or equivalent).
If the application was received more than three months ago and does not meet the specified form requirements, you must use discretion when you consider whether it is valid and not reject it as invalid. You must request more information if you need this to make a decision on the application. If the applicant does not provide this within the timescale you have set, you must refuse the application.
You must not use discretion and accept an application or claim as valid if a specified fee has not been paid. The requirements for the payment of fees are in the relevant fees regulations. An application that does not include the correct fee is invalid because of the regulations rather than the Immigration Rules.
If you use discretion to accept an application as valid, you must consider it under the Immigration Rules and published policy appropriate to the application.
Submissions
Conclusions
You must not use discretion and accept an application or claim as valid if a specified fee has not been paid. The requirements for the payment of fees are in the relevant fees regulations. An application that does not include the correct fee is invalid because of the regulations rather than the Immigration Rules.
Nonetheless, the element of discretion within the Guidance is limited to exceptional cases. The letter sent to the claimant ( which, on his case, he did not read and on which he did not rely) is in standard form, and in my judgment within the same category as the letter of 19 May 2011 which was considered in Rodriguez. Like that letter it does not represent a new policy binding on the defendant, but an expression of the policy set out in the Guidance.