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Applications turned down as invalid for non-payment of fees may be reinstated on appeal – the case of Basnet in the Upper Tribunal

In the case of Basnet (validity of application – respondent) [2012] UKUT 00113(IAC), the Upper Tribunal has made very helpful comments on the appeal procedure in relation to cases where an application is rejected by the UKBA as invalid for lack of payment and  the right of appeal is disputed.

The general rules is that there is no right of appeal against a decision to reject an application as invalid.  The standard procedure is to challenge such decision in High Court by way of judicial review.  However, judicial review does not always provide the necessary remedy. In many cases, the only adequate remedy may be guaranteed by the exercise of the right of appeal.

Thus, where the Home Office rejects an application for an alleged failure to make a payment, the burden of proof is on the Home Office to demonstrate that attempts had been made to claim the payment in accordance with the information provided on the application form, and that failure to take the payment was not due to a technical failure or human error.

Where the Home Office is unable or unwilling to provide such information, the decision to reject the application is to be treated as a refusal to issue further leave to remain, and the right of appeal arises in accordance with the general rules on the right of appeal against an “immigration decision”.

Duty judges are now required to make preliminary directions requesting the Home Office to provide evidence supporting their case.  Where such evidence is not provided, the Home Office is to be treated as having failed to discharge the burden of proof and the Appellant has the right to bring his case for a hearing at the First Tier tribunal.

Mr Justice Blake commented on procedural unfairness of the current  practice of rejecting the applications without giving the applicant a chance of rectifying a problem.  It is expected that the judgment will bring light into the kingdom of gloom and that new and fairer procedure rules will follow.

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