England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UTJ Martin
JR4369/2016

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 November 2018

Lord Justice Peter Jackson:

1. This appeal concerns the requirement to produce biometric information in support of an application for indefinite leave to remain, and the consequences of not doing so.

The legal framework

2. The Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048) were made under the power granted to the Secretary of State by section 5 of the UK Borders Act 2007 to make regulations requiring a person subject to immigration control to obtain and provide a document recording biometric information when making a range of applications. Regulation 3 requires an applicant to apply for the issue of a biometric immigration document in the manner specified in the Immigration Rules. Regulation 23 sets out the consequences of a failure to comply with this requirement, including an obligatory requirement to treat the application as invalid.
3. The present case concerns the Immigration Rules that were in force in late 2015/early 2016.^[1] In practice, following receipt of an application in proper form, the Secretary of State would send a 'biometric enrolment letter' with a barcode page that the applicant was required to take to a post office, where photographs and fingerprints would be taken electronically. The legal underpinning for this appeared in Paragraphs 34A and 34C of the Rules then in force:

"34A. Where an application form is specified, the application or claim must also comply with the following requirements:

…

(iv) if the application form and/or relevant guidance notes require the applicant to provide biometric information, such information must be provided as specified,

(v) an appointment for the purposes specified in subparagraph (iv) must be made and must take place by the dates specified in any subsequent notification by the Secretary of State following receipt of the application, or as agreed by the Secretary of State.

…

34C. 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… the following applies:

(a) Subject to sub-paragraph (b), the application will be invalid and will not be considered. ...

(b) The decision maker may contact the applicant or their representative in writing and give the applicant a single opportunity to correct any omission or error which renders the application invalid, save for failure to enrol their biometric information. The amended application and/or any requested documents must be received at the address specified in the request within 10 business days of the date on which the request was sent."

The facts

4. The appellant, Mr Thangaraj Jayaraman, is an Indian citizen aged 51. In 2008, he was granted leave to enter the UK as a Tier 2 (ICT) migrant, entitling him to work as a head chef. He was granted three renewals of his visa and on each occasion was issued with a biometric residence permit, the last of which expired on 14 November 2015.
5. On 4 November 2015, Mr Jayaraman's solicitors submitted an application on his behalf for indefinite leave to remain on the basis of 5 years' residence. He gave his solicitors as his point of contact. On 17 November, a biometric enrolment letter was sent to the solicitors requiring him to attend at a post office within 15 working days to submit biometric data. Mr Jayaraman took no action in response to this letter. His solicitors disclaim receiving it. A second letter was sent on 17 December, referring to the first letter, providing an extension of 10 working days and warning that the application might be rejected as invalid if the information was not provided. The letter included a paragraph advising that if there were exceptional circumstances, making the applicant unable to enrol biometric information within the timeframe, an explanation should be sent by email to the Home Office's 'Appointment Exceptions' team. The solicitors received that letter on 21 December. They did not query the fact that this was clearly a chasing letter, but instead forwarded it to Mr Jayaraman at his home address on 22 December. They did this under cover of a letter marked 'Very Urgent' (but nonetheless sent by second class post in Christmas week) in which they told him he had until 5 January to provide his biometric information. Mr Jayaraman states that he did not receive this letter either but that he spoke to his solicitor on 4 January 2016, who on the same day sent an email to the Appointment Exceptions team explaining that the deadline was about to expire, asking them to send a further letter to their client directly, and supplying his address. On 7 January, the Appointment Exceptions team sent the following response to the solicitor by email:

"Thank you for your email, a letter has been sent to Mr [Jayaraman] as directed today.

Please advise your client that they should enrol as soon as possible on receipt of the letter."

6. Despite this communication, Mr Jayaraman states that he did not receive any further letter. Instead, the Home Office sent the solicitors a letter dated 22 January. It was received on 27 January and included the following:

"We wrote to you on 17 December 2015 to notify you that your client's application or claim was invalid due to non-enrolment of biometrics. We told you the specific reasons for this and gave you the opportunity to provide the required fee, additional information or documentation. Your client has failed to do so within the specified timescale and, for the reasons set out below your client's application or claim is being rejected as invalid."

The reason for the decision was given later in the document in these terms:

"You must attend at a participating Post Office, to provide your biographical and biometric information by the dates specified in any such notification we send you following receipt of your application, or as otherwise agreed by us. Despite being asked to do this on two occasions, your client has failed to enrol their biometrics in the give timeframe." (sic)

The letter informed Mr Jayaraman that his passports were being retained and that he was liable to removal. He was also served with notice in form IS.96 that he was liable to be detained and that he must report to an immigration official on 10 February.

7. On 16 February 2016, Mr Jayaraman's solicitors wrote a pre-action letter complaining that his application had not been treated fairly. He had been resident in the UK for more than eight years and had been continuously working and paying taxes. He had been shocked to receive the rejection notice at a time when he was waiting to receive a new biometric letter. The result of the notice would be the inevitable refusal of any future applications, as Mr Jayaraman would by then be treated as an overstayer.
8. There was no reply to this letter, and on 21 April 2016 judicial review proceedings were issued in the Upper Tribunal (Immigration and Asylum Chamber). In her grounds for contesting the claim, the Secretary of State stated that Mr Jayaraman had been given ample opportunity to provide his biometrics information, first on 17 December and again on 7 January, when it asserted that a further request had been sent. Further clarification has been provided to this court in the form of a record showing the dispatch of the November and December letters and the sending of a further copy of the December letter on 17 January.
9. In the meantime, on 17 February 2016 Mr Jayaraman submitted a further application for indefinite leave to remain, which remains to be determined.

The decisions of the Upper Tribunal

10. The application for permission to apply for judicial review was rejected on paper by Upper Tribunal Judge Southern on 13 June 2016. He noted that it was not easy to discern what public law challenge was being made from the grounds then filed. He remarked that the Secretary of State appeared to be being held responsible for a failure of communication between the applicant and his solicitor.
11. A renewed application for permission, now supported by grounds drafted by counsel, was heard by Upper Tribunal Judge Martin on 26 August 2016 and was again rejected. The judge gave a short judgment, of which these are the material parts:

"4. On the applicant's behalf it is said that the Secretary of State, in response to an email sent from his solicitors on 4 January, varied the timescale within which the applicant should provide his biometric information, and, in issuing a letter saying that she was treating the application as invalid on 22^nd January, had acted unlawfully, and it is said the letter referred to in that email of 7 January was never received.

5. With regard to that, I find the grounds do not have merit. The letter was sent, quite properly, as it was requested to, to the applicant's representatives on 17 December. What possessed the representatives to send a letter by second-class post three days before Christmas is beyond me; however, that is what they did, and, not surprisingly, the letter was not received within a reasonable time, or at all. The representatives, having been told that that that letter had not been received, then emailed the Secretary of State, on 4^th January, who said that a second letter would be sent. It is reasonable to suppose from that that the Secretary of State was agreeing to amend the timescale. However, the solicitors had the original letter (of which a copy was sent to the applicant on 17^th December) and they had the document which had to be taken to the post office by the applicant. The solicitors could and should have indicated to their client that he should take that letter immediately and do as was required. They did not, and indeed did nothing until when, on 22 January, more than 10 days after the email of 7 January, the Secretary of State rejected it as invalid. The fact that the Secretary of State referred only to the letter of 17 December in that letter makes no difference whatsoever.

6. The Secretary of State cannot be said that to have acted unfairly in following the procedures she is required to do, and cannot be held responsible for the actions of the post office or the solicitors in this case, and any remedy that the applicant may have is not against the Secretary of State. For that reason, the grounds are unarguable, and permission is refused."

12. It can be seen that the judge was prepared to accept that the timetable might have been varied on 7 January, but that she noted that even after 10 further working days, no biometric information had been provided.
13. Mr Jayaraman's application for permission to appeal to this Court was refused by Sir Stephen Silber on 3 March 2017. He noted the claim that the two requests for information had been lost in the post but said this did not mean that the request was not properly served. Permission was subsequently granted by McCombe LJ after an oral hearing on 7 December 2017.

Submissions

14. For the Appellant, Mr Nicholson submits that the judge failed to consider the significance and legal effect of the email dated 7 January 2016. He argues that this amounted to a variation of the timescale for compliance with the biometric registration requirements, as permitted by Paragraph 34A(v) and that it was therefore unlawful for the Respondent to reject the application for indefinite leave as invalid. He submits that in focusing on the failure to comply with the 17 December timescale rather than the varied timescale, which she appeared to accept the Secretary of State had allowed, the judge erred in law. As to the January letter, he refers to the well-known authority of R (Anufrijeva) v Home Secretary [2004] 1 AC 604 at 622 for the proposition that a decision takes effect only upon communication. He further argues that, even on the basis that a copy of the December letter was re-sent in January and is taken to have been received, it could not amount to a limited extension of time: the sending of a copy of a letter of 17 December allowing 10 working days would not by that stage be meaningful and accordingly he argues that the variation made by the Secretary of State was in effect open-ended and continuing.
15. On behalf of the Secretary of State, Ms Anderson correctly submits that the court's proper focus in its judicial review role is illegality, not mistakes or maladministration. She was reluctant to concede that the Secretary of State had (and still has) a discretion to extend time, or that time was in fact extended in this case but did not raise any contrary arguments in either regard. In the end, her submission was that the application for judicial review had not disclosed any proper public law grounds as first drafted and that when it was put into proper form the Upper Tribunal was right to reject it on the basis that there was anyhow no compliance with a varied timetable. The simplicity of the system benefits applicants generally. There is no legal obligation on the Secretary of State to assist an applicant to comply, particularly as an applicant who is not out of time can always make a second application. Mr Jayaraman, who knew his compliance was outstanding, was given several opportunities to provide the biometric data. There was no error of law on the part of the Upper Tribunal, but even if there was, it would have been entitled to refuse relief in its discretion.

Conclusions

16. I am in no doubt that Paragraph 34A(v) allowed the Secretary of State to vary the timetable for the provision of biometric information and that in this case, she did so. A further copy of the letter of 17 December was sent on 7 January and must be taken to have been served upon Mr Jayaraman. What variation then was the Secretary of State agreeing to? This calls for an assessment of the 7 January communications in the context of the history of the application as a whole.
17. Mr Nicholson's argument is that the open-ended terms of the email and the sending of a copy of a letter whose time for compliance had as a matter of logic expired could not be interpreted as an extension of time limited to just 10 further working days. In my view, this argument is based upon a very narrow reading that ignores the overall context. The Secretary of State had already given the applicant 15 working days followed by an extension of 10 working days, and Mr Jayaraman and his solicitor had been expressly warned that his application was at risk of being found to be invalid. The second extension granted on 7 January was not one to which he was entitled. I accept that the email did not set out the Secretary of State's position as clearly as it could have done, and also that the solicitor had requested the issue of a further biometric letter, rather than a copy of the earlier one, but that ultimately makes no difference. On any view, the solicitor had throughout remained in possession of a copy of the letter of 17 December, yet neither he nor his client took any steps to pursue the application effectively. In the meantime, a further period of 10 working days came and went. This was not "an uncommunicated administrative decision" of the kind considered in Anufrijeva.
18. The correct interpretation of these events is that the Secretary of State was agreeing to a further extension of 10 working days only. Mr Jayaraman and his solicitor could not reasonably have believed anything else. The suggestion that an open-ended extension had been granted does not merit serious consideration. The Immigration Rules and surrounding legislation are designed to create a simple system where the need to exercise discretion is limited. The effect of this claim for judicial review was indeed to seek to make the Secretary of State, who had at each stage behaved lawfully, responsible for the shortcomings of the applicant and his solicitor. In so far as the latter may have contributed to the failure to present a valid application, that cannot translate into a proper public law challenge.
19. I would accordingly dismiss this appeal.

Lady Justice Sharp:

20. I agree.
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Note 1    Since November 2016, the process is somewhat different: see current Paragraphs 34, 34A and 34B on valid and invalid applications.    [Back]