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The death of Basnet? Mitchell v SSHD

27 October 2015 Immigration

The case of Basnet v SSHD is now nearly 4 years old. I know this well, since I represented the appellant, Mr Basnet, at the Upper Tribunal in Edinburgh just a week before the birth of my daughter, who is now almost 4. Since then it is fair to say that a lot has changed. The case of Basnet was incorporated into Home Office policy. In addition paragraph 34C was added to the Immigration Rules, permitting, in the case of an alleged invalid application, a single opportunity for the applicant to rectify things, without suffering a break in their valid leave and all of the draconian consequences that could result.

Indeed many immigration rules have been amended to remove the punitive consequences of not having valid leave at the point of application, which further serves to ameliorate some of the nastier knock on effects of applying without extant leave (after an application has been invalidated).

I have also followed with interest the approach of the higher courts to the case. Basnet has survived encounters with the High Court of England and Wales in Zahoor and the Court of Appeal in Iqbal & Ors.

The Upper Tribunal also examined the principles in the case of Ved, a case which I considered tried to stretch the point too far, mainly by not resting on an immigration decision against which to appeal.

I read with interest therefore the very recent case of Mitchell (Basnet revisited). The appellant here sought to rely on Basnet to cure an invalid application made in 2010 and therefore argue a continuation of 3c leave and consequent entitlement to long residence under the rules. The Tribunal, consisting of Mr Ockelton, Vice President and Upper Tribunal Judge Macleman (who actually heard Basnet originally), rejected the appellant's arguments, primarily because so much time had passed before the matter was raised and also because there was doubt, from the evidence available, that the applicant had indeed completed her form correctly in 2010. The applicant appears to have been successful on other grounds, so its not all bad news.

What is extremely interesting though is the consideration of affidavit material from the Home Office that was intended for use in a Court of Session case. This material outlines the factual background to the processing of payments by the Home Office.

I remember at the time of Basnet the Presenting Officer in that case provided a great deal of detail on the Home Office's processing arrangements, which was relied upon heavily by the Upper Tribunal.

In Mitchell the Home Office seek to provide an updated version of the operation of the payment system. The Upper Tribunal on reviewing this makes the suggestion that given this new information 'a more nuanced approach to the burden of proof may be needed'. The Tribunal also concludes that 'there is some factual doubt on the conclusions in Basnet.'

I am unclear though what the difference is. The new system appears to involve the same risks as the old one. The critical point in Basnet was that we cannot exclude that someone simply mistypes a digit from one of the necessary card components written on to a form. As the tribunal records: "If full and valid card details are received these are input onto a system called TNS and sent via Streamline to be processed. The result is usually received within 50 minutes, and is either "successful" or "declined". The banks provide no further details of the reason for declining a payment. If the payment is successful the application is treated as a valid application." This seems to suggest that if someone mistypes a card number then the payment could be declined and the application invalidated, but that it would not be clear why the payment had been declined. One of the reasons for declining the payment, known only the bank apparently, is an 'incorrect card number'.

It is interesting to see the Home Office attempt to row back from Basnet by providing this updated evidence. I fail to see, and I might just be missing something, how this alters Basnet to any great degree. At most it now mandates an additional step of obtaining confirmation from the bank as to why a payment was declined. Of course if the card number is mistyped then the bank will have no record on that account. It is also important to remember the statutory background under the The Immigration and Nationality (Fees) Regulations 2015 which merely state the application must be 'accompanied by' the fee. 'Accompanied by' was determined by the Upper Tribunal in BE to mean an application was 'accompanied by such authorisation (of the applicant or other person purporting to pay) as will enable the respondent to receive the entire fee in question, without further recourse having to be made by the respondent to the payer.' 

The risk of human error inputting a card number still appears to be there. It may be that this is all moot now, given the inbuilt protections within the immigration rules and in particular the move to online applications where the applicant can put in their own card details as part of the application's submission. Hopefully this will bring an end to a sorry chapter in immigration practice here, with an entirely disproportionate approach to minor application errors causing real distress and lasting consequences to many people.

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