I CAME across a recent UK High Court decision which is extremely useful as it confirms that, in appropriate cases, judges are prepared to accept that the Home Office can lose applicants’ documents.
The case is called Kisuule, R (on the application of) v Secretary of State for the Home Department  EWHC 2966. As the citation shows, this was a Judicial Review which came before Mr Justice Edwards-Stuart sitting in the High Court.
The claimant was Mr Kisuule, a Ugandan national who applied for further leave to remain in the UK on a Tier 4 student visa, together with his wife and son as his dependants. The application was submitted on November 27, 2009, before the expiry of his visa on November 30, 2009.
On January 11, 2010, Kissule received a letter from the Home Office returning his application and supporting documents on the ground that the passport photographs required had not been included. Kisuule argued that when he received the letter, he immediately telephoned the Home Office to explain that he was completely certain that he had submitted his photographs with his visa application. He says that he was told on the phone that if he re-submitted his application and the missing photographs within 28 days, his application would be treated as having been made on November 27, 2009.
However, this telephone advice is not what the letter of January 11, 2010, stated. The letter stated that the application was being returned as invalid because it did not contain photographs as specified in the application form. The letter went on to say:
“Arrangements will be made to refund any fee which you have paid if we have not received a valid application within 28 days of the date of this letter.
If you still wish to make an application for leave to remain you must return your application forms using the enclosed address label. The application forms must not be returned to the address given on the application forms.”
On January 18, 2010, the Applicant re-submitted the application, together with the photographs in a separate envelope marked “photographs as requested”, and significantly for the hearing, the same supporting documentation.
On March 3, 2010, the Home Office refused the application on the grounds that;
- His bank statements were now out of date (he had re-submitted the same bank statements believing what he had been told in the phone conversation that if he re-submitted his application and the photographs, his application would be treated as having been made on November 27, 2009), and;
- In any event, the bank statements did not show the required sums of money to cover his and his family’s maintenance.
As a result, he was not given a right of appeal as his application was considered to be out of time.
The claimant wrote back to the Home Office setting out what had transpired and what he had been advised on the phone. The Home Office refused to reconsider their decision.
At the Judicial Review hearing in the High Court, the claimant gave evidence and confirmed that after receiving the letter of January 11, 2010, he phoned the Home Office Public Enquiry office to confirm his version of events. He told the court that the application was very important to him and he was well aware that it had to be completed correctly. He also said that his wife double checked the form and the enclosures to ensure that nothing had been missed.
The High Court Judge accepted the Applicant’s evidence that he rang the Home Office Public Enquiry office and had the conversation as stated. He was not prepared to accept that the claimant was making a deliberate fabrication. He made a finding of fact that it was more probable than not that the Applicant did enclose the photographs in his application of November 27, 2009, and that, somewhere on the way to the desk of the case worker who considered the application on January 17, 2010, the photographs became detached from the rest of the application.
The Home Office had submitted no evidence to show what the system was for dealing with documents received by post at the Croydon office, so there was no evidence to suggest that what he considered to have been the probable sequence of events was inherently unlikely.
In the light of this finding, the Judge confirmed that the photographs were enclosed with the original application form and the application was therefore validly made on November 27, 2009, and the subsequent decision to treat it as having been made on January 18, 2010, was therefore wrong.
This declaration also had the effect of making the Home Office’s decision that the bank statements attached did not cover the required period wrong.
However, this was not the end of the matter because the Home Office was also contending that even if the application was made on November 27, 2009, it was bound to fail because the bank statements supplied did not show that the claimant had the required funds. Having looked at all the bank statements, the High Court Judge concluded that sadly, the Claimant indeed did not have the required funds over the required period.
However, the Judge concluded that having declared his application to have been validly made before the expiry of his visa, it followed that a refusal of his application carried a right of appeal. At the appeal, the Claimant would have been able to argue other Convention arguments, such as Article 8. The Judge observed that this was an individual who was still studying, although it was not clear to him at what point he had reached in his studies. He hinted that the Home Office might wish to grant him some sort of leave.
This decision is therefore critical in that,
- It confirms what we have always know that the Home Office do indeed lose applicants’ documents from time to time;
- This may be prayed in aid in appropriate circumstances, but that;
- This is always ultimately a question of credibility – whether the court is prepared to believe an applicant’s version of events over the Home Office.
Finally, you may have noticed that the Judge did not go into what was said or not said in the telephone conversation with the Home Office because of his key finding that the application of November 27, 2009, had been validly made.
It is often observed, however, that the Home Office public enquiries phone lines are manned by operatives who are not necessarily well informed, to put it politely, and their advice ought to be taken with a generous pinch of salt.
Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on email@example.com or ph. 0121 212 0451 or visit Genesis Law Associates’ website at www.genesislaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information