Neutral Citation Number: [2014] EWHC 1604 (Admin)
 
Case No: CO/9679/2013 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
ADMINISTRATIVE COURT IN BRISTOL

Bristol Civil and Family Justice Centre
2 Redcliff Street
Bristol
BS1 6GR 

Date: Tuesday 11th March 2014
 
B e f o r e: 

MR JUSTICE HICKINBOTTOM
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Between: 

THE QUEEN ON THE APPLICATION OF 
ELIZABETH KAREN BALDWIN nee MCINTYRE
Claimant

v 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant 
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Miss Galena Ward appeared on behalf of the Claimant 
Miss Mona Bayoumi appeared on behalf of the Defendant 
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J U D G M E N T

Mr Justice Hickinbottom:  
1.	The claimant, Mrs Elizabeth Baldwin formerly McIntyre, is a New Zealand national of British ancestry.  She was born in New Zealand in 1966, and is now aged 48.  She arrived in the United Kingdom in 2004 on an ancestry visa, and was granted leave to enter for 4 years.  She later extended that leave to 20 February 2013.  
2.	In January 2011, she married John Baldwin, a British citizen; and they have since lived together in Torquay.  He is a chartered building surveyor, who is the sole shareholder of company, JB Baldwin & Associates, through which he works.
3.	In 2013, the Claimant would have been entitled to have applied for an extension of leave on the basis of her ancestry.  However, she did not.  Following telephone discussions with the UK Border Agency (“UKBA”), on 10 February 2013 she completed a Form FLR(M), for leave to remain as the spouse of a person present and settled in the United Kingdom.  As part of that form she completed details of her Visa card for payment of the required fee, namely £561.  She sent off the form, which was received by UKBA on behalf of the Secretary of State on 13 February.  UKBA’s records show that payment was requested from that card the following day, 14 February; and was declined.  
4.	In her first statement dated July 2013 and submitted with her application for urgent expedition of this claim, the Claimant said:  
“I found this incredible as I completed the payments page with my visa card and had sufficient funds to cover the application throughout the period.” 
5.	However, in her second statement dated 18 October 2013, she said that, having checked her bank statement, there were insufficient funds in the account in the period 11 to 15 February; but then funds were replenished and would have been sufficient.  I now have copies of the bank statements for the relevant period which confirm that position.  There were insufficient funds in that short period because of various unremarkable small transactions on the account, which took the Claimant over her overdraft limit of £500.  In the circumstances, although Miss Ward did not accept that it was clear beyond doubt, she did concede that on the balance of probabilities the reason for the declining of the request was inadequate funds.  I consider that certainly to be the case.  Indeed, it seems clear to me beyond any sensible doubt that the reason for the declining of the payment request was that the account did not have sufficient funds in it to meet it.
6.	On 22 February, UKBA wrote to the Claimant saying that the application was invalid, because the specified fee had not been paid; and all the documents were returned to her, save for the payment page.  The covering letter said:  
“The passage next to the box ticked below provides more detail about the failure to pay the specified fee and steps you should take to ensure that you make the correct payment when returning your application.” 
There is then a single paragraph marked with an “X” in a box at its side, which reads as follows: 
“You have not made any payment and have not completed the payment page of the application form.  Details of how to pay the fee are given in the guidance notes within the application form.  You should ensure the payment page is completed before returning your application to the address given on the application form.”
The Secretary of State now accepts that that was not entirely accurate because, although payment had not been made in the circumstances I have described, the Claimant had not failed to complete the payment page.
7.	On 2 March 2013, the Claimant sent the application in again, with a cheque for the fee.  The cheque was good.  However, on 17 May, UKBA wrote to her refusing her application on the ground that the requisite evidence of income had not been provided, an assertion which she disputes.  That letter also considered her right to respect for both family and private life, concluding that she did not satisfy the requirements of either appendix FM2 or paragraph 267ADE of the Immigration Rules.  However, the letter indicated that the decision was not the subject of a right of appeal because it had been made after 20 February 2013, i.e. after her leave had expired.
8.	The Claimant commenced this judicial review, challenging the refusal of her application, on 24 July 2013.  An application for urgent consideration was refused that day.  On 7 October, His Honour Judge Jarman QC refused permission to proceed; but His Honour Judge Lambert granted permission at the renewal hearing on 22 November 2013.  Today I have heard the substantive application, at which the Claimant has been represented by Miss Galena Ward and the Secretary of State by Ms Mona Bayoumi.
9.	Miss Ward relies upon two grounds.  
10.	First, she submits that the application received by UKBA on 13 February 2013 was valid and in time.  
11.	She rightly concedes that, as the Claimant’s leave expired on 20 February, the application she sent on 6 March 2013, looked at discretely, although not invalid, attracted no right of appeal.  That is because, although section 82(1) of the Nationality Immigration and Asylum Act 2002 provides a right of appeal to the First-tier Tribunal in respect of “an immigration decision”, section 82(2) makes clear that a refusal of an application made at a time when the applicant did not have existing leave to remain is not “an immigration decision”.  Further, section 3C of the Immigration Act 1971 cannot assist the claimant in respect of the application made after the expiry of leave – see JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 – and Miss Ward does not suggest to the contrary.
12.	However, with regard to the earlier application, she submits that that was valid; and, being in time, attracted a right of appeal.  
13.	Section 51 of the Immigration Asylum and Nationality Act 2006 allows the Secretary of State to require fees to be paid for applications under the Immigration Rules.  By article 3 of the Immigration and Nationality (Fees) Order 2011 (SI 2011 No 1055), application for leave to remain must be accompanied by the fees specified in regulations made under section 51(3).  That subsection also enables the Secretary of State, in regulations, to provide for the consequences of not paying a required fee.  It is uncontroversial that, under the Immigration and Nationality (Fees) Regulations 2012 (SI 2012 No 971), the required fee for an application for leave to remain at the relevant time was £561.  Regulation 7 of the 2012 Regulations provides that:  
“Where these regulations specify a fee, which must accompany an application for the purposes of the 2011 Order the application is not validly made unless it is accompanied by the specified fee.”
The Fees Regulations are passed annually; but that provision has in substance been repeated in the regulations year-on-year for some time.  
14.	Miss Ward submits that the 13 February application was “accompanied by the specified fee”, because, as held in BE (Application Fee: Effective Non‑payment) [2008] UKIAT 89 at [14], an application is “accompanied by the fee”, if it is “… 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.”  	BE was a decision under the Immigration Nationality (Fees) Order 2007 (SI 2007 No 807), but that proposition was approved in respect of the materially similar 2011 regulations in Basnet v Secretary of State Home Department [2012] UKUT 00113 (IAC).  The 2012 Regulations are again in similar terms.  In Basnet at [20], having referred to the BE, Blake J said:  
“Validity of the application is determined not by whether the fee is actually received but by whether the application is accompanied by a valid authorisation to obtain the entire fee that is available in the relevant bank account.”
15.	As explained in BE at [12], in contrast to its predecessor, from 21 May 2007, the regime on payment was intended to be strict, the 2007 Regulations removing period of grace that had applied to that date.  As Miss Ward rightly points out, Basnet holds that, because of the UKBA policy of not returning the sheet of the application including payment details (no doubt to enable them later to show that payment information they relied upon in seeking payment, the burden of showing that the payment was not accompanied by the fee falls on the Secretary of State.
16.	As I have said, the reason why payment on the Claimant’s payment card in this case was refused was because, when the request for payment was made, there were insufficient funds in her account.  On the evidence, that is plainly so.  However, Miss Ward submits that simply because payment was declined once, that was not the end of the matter.  As a matter of fact in this case, had payment been requested between the 15 and 20 February 2013 (or, indeed, thereafter), the request would have been successful – or at least would not have failed for any reason that could have been lain at the door of the Claimant.  She submits that UKBA ought to have investigated why the payment had failed and/or attempted more than one request.
17.	However, Miss Ward was unable to criticise UKBA.  She accepted that it had made the requests for payment reasonably promptly after receipt of the application, as required or at least urged in Basnet  (see [32(1)].  She accepts that the payment request having been refused, UKBA returned the application to the Claimant reasonably promptly, albeit (as it turned out) it was not received by her until after her leave had expired.  She accepted that, once the payment request had been rejected once, there was no obligation on UKBA to contact the Claimant as applicant, or to make a second payment request.  The Claimant has not, Miss Ward consequently conceded, been the subject of any procedural unfairness such as to render the Secretary of State’s decision unlawful.  
18.	Nevertheless, she submitted that the Regulations properly construed mean that, where there was a reasonable opportunity for UKBA to obtain payment by way of a payment request between a refusal of a request and the expiry of leave, if UKBA did not exercise its power to make enquiries or a subsequent request for payment, in the terms of the Regulations the application had been accompanied by the relevant fee for that period; and thus the application was not invalidated.
19.	Miss Bayoumi submitted that that interpretation was incorrect.  She submitted that the question of validity crystallises at the moment the request for payment from the payment card was made.  It does not matter if there are or are not adequate funds before or after that time.  It was incumbent upon the applicant to ensure that there were sufficient funds in the account for the period from posting the application (which can be no more than 28 days before the leave expires) until the application has been processed – or at least until the expiry of leave, by when the Secretary of State ought to have processed the payment request, if the application had been made within good time.  That was not, Miss Bayoumi submitted, a significant burden to impose upon an applicant.  The Claimant in this case clearly thought that she had kept sufficient funds in her account throughout the relevant period.  It was her error that she had not.
20.	I find the submissions of Miss Bayoumi compelling.  
21.	In my view, Basnet is of limited value in relation to this case, because it was concerned with validity of authorisations.  The authorisation provided by the Claimant in this case was (it is now common ground) valid.  In this case, the request failed, not because the authorization was invalid, but because of insufficient funds when the request was made on the basis of a valid authorisation.  Basnet does not deal with that issue directly, although it presupposes sufficient funds will be available at the time of the request, as made clear from [20] which I have already quoted.
22.	This claim turns on the proper construction of regulation 7 of the 2012 Regulations (or its equivalent); and, in particular, the phrase “accompanied by the specified fee”. In my view, this means that when a fee is to be paid by way of a request on a payment card, the application is not “accompanied by the specified fee” if, when a request is made using a valid authorization, that request is declined because of insufficient funds in the account.  As Miss Ward conceded, UKBA is not obliged to make a second request.  The validity of the application is thus crystallised at the time of the first request.  
23.	Although this is a matter of construction, it comes as some comfort that Miss Bayomi’s interpretation, which I favour, results in an eminently sensible, practical and certain scheme; whereas the construction pressed by Miss Ward would result in great uncertainty, results depending on the particular facts of a case as to what might be a reasonable period in which the UKBA ought to have sought payment. 
24.	I accept that, if an applicant attends UKBA in person and his means of payment fails (for example, because a payment card is declined), he will or may have an opportunity to remedy that failure by (for example) offering another card that may not be declined or by paying in cash.  An applicant who applies by post does not automatically have that opportunity.  However, that does not mean that UKBA has an obligation to make enquiries as to why a payment has been declined or to make repeated requests for payment on a payment card if requests are declined.
25.	In this case, as I have indicated, Miss Ward quite properly did not rely upon procedural unfairness.  Of course, there may be cases in which UKBA act in such a way that procedural fairness demands that the rigours of the statutory scheme are not applied.  But this is not such a case.  Harsh as the result might be – and, in this case, I accept that the result is very harsh for the Claimant – in my judgment, the construction of the relevant regulation is clear.  Insofar as the result is harsh, it is because the statutory provisions lead to harsh results.  Since 2007, the potential for that harshness has been a deliberate element introduced into the scheme.  
26.	For those reasons, the first ground must fail.
27.	As her second ground, Miss Ward submitted that in this case the Secretary of State ought to have exercised her discretion to make a removal decision at the same time as the decision to refuse leave to remain, or shortly thereafter, or certainly by now.  Unless certified, her decision to remove would trigger a right of appeal.  The Secretary of State, she submitted, has acted irrationally or otherwise unlawfully in not exercising her discretion thus.
28.	Where an application for leave to remain was made on article 8 grounds, until 2011 it was the practice of the Secretary of State to delay making any removal decision and therefore the accrual of any right of appeal.  A challenge to that practice was rejected in R (Daley‑Murdoch) v Secretary of State for the Home Department [2011] EWCA Civ 161, the court holding that, as a matter of policy, it was not unfair or irrational to delay making a removal direction decision.  However, that being only a policy, the court indicated that in any particular case such a decision may be rendered unlawful by the specific circumstances.  In the light of Daley‑Murdoch, and cognisant of her article 8 obligations, the Secretary of State adopted a policy that provides that, in certain specified circumstances (e.g. where there are minor children), if requested, a removal decision will be taken, triggering a right of appeal if negative.  One of those circumstances is where there are “other exceptional or compelling reasons”.  
29.	Miss Ward concedes that the Claimant does not possibly fall within any of these policy categories, save for the one relying on “other exceptional or compelling reasons”; but she submits that the Claimant does fall within that category.  The Claimant has an impeccable immigration history, and her only failing was not to submit a proper application for further leave to remain within time in the circumstances I have outlined.  The impact of the delay in allowing her an appeal in respect of her substantive article 8 rights is, Miss Ward submits, devastating for the Claimant.  In this period of limbo, she cannot work – although she previously had a job.  She cannot make plans for the future, including pursuing plans to adopt a child here; and she cannot sensibly visit her family in New Zealand; because, if she were to do so, she could not return to the United Kingdom and, as she has been an overstayer, she cannot make an out‑of‑country  application to enter the United Kingdom as the spouse of a British citizen for 12 months.
30.	Strongly as that submission was made, I cannot accept it.  I appreciate that the Claimant is left in limbo to the extent that she is in the United Kingdom without leave and cannot put her article 8 case to a tribunal unless and until the Secretary of State makes a removal decision in respect of her.  I do not accept Miss Bayoumi’s description of the consequences of this as being simply “inconvenient”. It must be extremely unsettling and distressing for the Claimant and her husband.
31.	However, this situation is unfortunately far from rare.  “Exceptionality” implies some degree of rarity; and, although one can only sympathise with the Claimant for the position in which she now finds herself, I do not find there to be any ,exceptional or compelling reasons in this case such as to require the Secretary of State, under her own policy, to make a removal decision now.  Certainly the Secretary of State was and is entitled to conclude that there is none, which was the Secretary of State’s conclusion in her response to this claim in the letter from UKBA (now UK Visas and Immigration) dated 9 September 2013.  In that letter it was said, having set out the categories of the persons for whom a removal decision would be made promptly (including the category where there are exceptional or compelling reasons to make a removal decision quickly): 
“As no evidence has been supplied that your client can satisfy any of the criteria quoted above it is not considered that she should be issued with a removal decision at this stage.”
32.	As I have already indicated, in my judgment, that was a conclusion to which the Secretary of State was entitled to come.  Miss Ward makes no challenge to the policy itself.  There is no room here for an article 8 claim outside the policy; but, insofar as there is and I am required to exercise my own judgment on the article 8 issues, I am quite satisfied that the circumstances of this claim, sad and harsh as they are, are not arguably exceptional or compelling such that removal is not proportionate.  
33.	For those reasons, the second ground too must fail.  
34.	Therefore, whilst one can but sympathise with the Claimant, my very firm view is that the Secretary of State has not erred in law in the way in which she has dealt with the Claimant’s application for leave to remain or in any other way.  Consequently, this application for judicial review fails.