Invalid application due to payment problems?

[vinny]

If you had an in-country application declared as invalid due to payment problems, then see also Basnet (validity of application - respondent) Nepal [2012] UKUT 113 (IAC) (04 April 2012) (and The Immigration and Nationality (Cost Recovery Fees) Regulations 2007).

Do keep a copy of your application, including payment details, for your records.

See also Fairness and the Points-Based System: A contradiction in terms?

Update: Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC) > Ved & Anor (appealable decisions; permission applications; Basnet) (Tanzania) [2014] UKUT 150 (IAC) (27 March 2014).
Zahoor v Secretary of State for the Home Department [2014] EWHC 2751 (Admin) (08 August 2014).
Basnet case on failed payments for immigration applications revisited by tribunal > Mitchell (Basnet revisited) [2015] UKUT 562 (IAC) (8 October 2015).

Important:
Supreme Court criticises complexity of immigration rules (but dismisses case anyway) > Mirza & Ors, R (on the applications of) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016).

Ticking the Fee Box.

[vinny]

Have you been faced with an issue where you applied through postal application when your current leave to remain was valid; but application is returned as invalid after your current leave to remain has expired!?

This article is good one to read on the subject matter!

THE UKBA MUST PROVE THAT AN APPLICATION FOR LEAVE TO REMAIN WAS “INVALID” – ITS INABILITY TO OBTAIN PAYMENT FOR A FEE DOES NOT CONSTITUTE PROOF

[vinny]

Fairness to the rescue – Yes, again!

[vinny]

Invalid applications are returned for various reasons, but the most common one we have found is an inability for UKBA to take the application payment.

[manci]

they also wrote (in September 2012): .
As UKBA treats such applications as never having been made, the applicant still cannot benefit from 3C leave (Immigration Act 1971. As such technically, if they have worked after submitting their in-time application and prior to receipt of the notice stating their application is invalid, they will have been in breach of the conditions of their leave from the date of expiry of that leave.

Are UKBA really treating invalid applications as never having been made implying the restrospective cancellation of section 3C leave where the original leave expired before the rejection?

In these cases I believe the current practice of UKBA takes the commencement of overstaying from the date of the rejection rather than from the date of the expiry of the original leave.

[vinny]

As you rightly said,

7.18 There will be a number of safeguards to ensure that the amended rules are fair and proportionate:

• Where an applicant submits an application before their previous period of leave to enter or remain expires, but the application is rejected as invalid after their leave expires, the 28-day window in which the application may be submitted as an overstayer will start from the date on which the application was rejected, rather than when leave expired.

Unfortunately, they treat rejected in-time invalid applications (34C) different from refused in-time valid applications.

It would have been more fairer and proportionate if the UKBA had reinstated 17(1).

Update!

[MissyD]

I recently got hired after providing new employers with a copy of my last biometrics card, the letter that UKBA sent indicating they have the application and it's with a case worker, and a copy of my passport (I always take scans of my documents).

The employers stated that their accountants were not satisfied that I could prove I was legal and told them my letters were false.

They then came back to me telling me that I had to prove I was here legally and that I need to provide them with originals of my passport and biometric card. I explained that you are required to submit these documents to UKBA and they will have it until their decision is made on your application. They provide you with a letter which you have and there are case numbers, reference numbers etc on it, call them and enquire as to status as an employer because I cannot call to enquire as the letter states DO NOT CALL TO ENQUIRE AS TO STATUS...etc, etc...

They attempted to call but no one was answering.

They eventually sent an email to the Employers section requesting confirmation of status and this is where the drama unfolds - UKBA responded with a letter which basically said:


''I have undertaken a check as to whether the person named above currently has an outstanding application or appeal under consideration which allows them to undertake the work in question. Our records confirm this is not the case due to the following reason.
An application for leave in the United Kingdom has been submitted, but this was submitted after the expiry of the individual's previous status.''

NEWS TO ME........ of course I was immediately fired as UKBA also included pages detailing the fines the company will be liable for.

When I called the UKBA to clarify, the woman kept repeating the same line. I asked her how can that be when I submitted my application on time they sent it back with a false reason of 'although payment has been made it is the incorrect amount', when all they had to do was take the fee off from my card payment. She just kept repeating like a robot.

I then asked her so exactly what is my status and her response was I am an over stayer and have no right to work and I'm currently illegal.

I again said I have an application that was sent on time and there is an application pending and further to that, your letters to persons when telling them their application is invalid should explicitly state that they have now become an overstayer and not entitled to conditions under the last leave granted.

Again the robot answer of your application was invalid and not made in time.


This application was made in September

Letter of acknowledgement received about 2 weeks after

The letter for invalid due to 'although payment was made it was incorrect amount' was sent end October.

Resent Application this time with cheque payment

Acknowledgement letter received middle November

Biometrics request received in March

Still awaiting decision and due to their stance I cannot work.

Any advice?

[vinny]

Did you keep a copy of your payment details?

Moreover, note that

We turn to the question of who bears the burden of proving that an application has been validly made. This would normally fall on the applicant, who would discharge it by producing evidence of acknowledgement of receipt or proof of postage. Here the application was received in time, but the question of whether it was accompanied by accurate billing data can be answered only by the respondent. In those circumstances, we conclude that the evidential burden of demonstrating that the application was not “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” must fall on the respondent. We reach this conclusion both by application of first principles - the party that asserts a fact should normally be the one who demonstrates it; and because the respondent is responsible for the procedure to be used in postal cases, and the features noted above prevent both the issue of a prompt receipt and an opportunity to understand why payment was not processed. An applicant is not present when an attempt to process payment is made, and has no way of later obtaining the relevant information.

[MissyD]

yes I did..and it has my bank card details and all the checked boxes for payment by card.

Did you keep a copy of your payment details?

Moreover, note that

We turn to the question of who bears the burden of proving that an application has been validly made. This would normally fall on the applicant, who would discharge it by producing evidence of acknowledgement of receipt or proof of postage. Here the application was received in time, but the question of whether it was accompanied by accurate billing data can be answered only by the respondent. In those circumstances, we conclude that the evidential burden of demonstrating that the application was not “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” must fall on the respondent. We reach this conclusion both by application of first principles - the party that asserts a fact should normally be the one who demonstrates it; and because the respondent is responsible for the procedure to be used in postal cases, and the features noted above prevent both the issue of a prompt receipt and an opportunity to understand why payment was not processed. An applicant is not present when an attempt to process payment is made, and has no way of later obtaining the relevant information.

[manci]

yes I did..and it has my bank card details and all the checked boxes for payment by card.

at A1 of the application form which box did you tick?

[MissyD]

a1???


there's no A1 on my form

FLR-O

yes I did..and it has my bank card details and all the checked boxes for payment by card.

at A1 of the application form which box did you tick?

[MissyD]

any advice on how to proceed?

[vinny]

Appeal, if refused.

[MissyD]

thanks for the links provided...

at the moment its a real bother waiting on them to decide my application as I cannot work due to their response to the company....and this will be the response to any company that I get hired with...

any way legally around that?

Appeal, if refused.

[MissyD]

still waiting to hear from UKBA......

the waiting times they impose on persons requiring visas, especially ones that permit you to work are absolutely horrendous.

How do they expect you to support yourself, pay rent, etc, that is clearly not humane on any level....

They keep your documents for over 6 months, employers are hesitant to employ anyone with just the letter stating that they have your documents processing and then, in a situation like mine, where they are at fault, make it difficult to support one self....

they are a law unto themselves.

[imran1508]

Unfortunately you are at the mercy of the UKBA. I had a similar experience, terrible waiting time before I received a decision and documents. But hopefully you'll get the decision you want and you can move on with your life. I'm assuming you didn't appeal against the original refusal...

[MissyD]

Unfortunately you are at the mercy of the UKBA. I had a similar experience, terrible waiting time before I received a decision and documents. But hopefully you'll get the decision you want and you can move on with your life. I'm assuming you didn't appeal against the original refusal...

Which original refusal? there wasn't a refusal.

I am still awaiting their decision

[vinny]

thanks for the links provided...

at the moment its a real bother waiting on them to decide my application as I cannot work due to their response to the company....and this will be the response to any company that I get hired with...

any way legally around that?

If the UKBA cannot prove that your initial in-time application was invalid, then, logically, it was valid and you are not an overstayer. However, it may be difficult to convince an employer.

[MissyD]

they have now sent a refusal letter, keeping my passport saying I have to contact a local enforcement office
and I have no right of appeal against their decision.

They quoted a host of reasons why I was refused one being I made an application after my original leave to remain expired.

Any advice on how to proceed from here?

[vinny]

What were the host of reasons for your refusal?

If the refusal was incorrect, then irrespective of what the UKBA says, do appeal. Let a judge decide on your right of appeal. Based on case law, the UKBA must prove that your initial in-time application was invalid.

[MissyD]

In refusing your application consideration has been given to your private life under Article 8 which from 9th July 2012 falls under paragraph 276ADE of the rules.

- you have not lived continuously in the UK for at least 20 years therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (iii)

- You were not under the age of 18 years and had not lived continuously in the UK for at least 7 years therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (iv).

- You were not aged 18 years and above and under 25 years at the time of your application you have spent X years in your country before coming to the UK therefore, the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (v) as you have not spent at least half your life continuously in the UK.

- Having spent X years in home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country)' and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (vi).

-You made an application on 10 November 2012. However, your leave to remain expired on 27 September 2012. You therefore did not have leave to remain at the time of your application.

Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal.

Your case has been transferred to your local enforcement office. You must now contact them (between the hours of9am and 5pm,) Monday to Friday) by telephone on 0207 2380069 by 11 June 2013 at the latest to discuss your departure from the United Kingdom. We advise you to refrain from making any travel arrangements until you have discussed your caSe with your local enforcement office who will arrange to obtain your documents.

Should you fail to leave enforcement action will be taken against you.

Further consideration can be given to your case at that stage which could
could result in you being served with an enforcement decision which may generate a right of appeal.

[MissyD]

I do not have any ties with my home country as I am an only child from a single parent home and my parent and relatives area ll deceased.

I have not been back to my country for 3 years and my friends who I had whilst residing there all now live in the USA.

To return I would need to arrange housing, job, etc and this requires that I travel back and forth to do so. Something I have been unable to do due to my status here in UK.

What recourse is there?

[vinny]

I am not clear what category/application you had applied for and what your immigration history is.

[MissyD]

I won an appeal last year where I received discretionary leave.
The UKBA documents were sent to me 3 weeks before the expiry date of the leave to remain.

I applied for an FLR O in September 2012.

I submitted the FLR O in time requesting discretionary leave to remain for 18/24 months as I know the time frame I need in order to sort myself out for return to country of origin.

Then came the document about incorrect funds sent.

Then the information about my being an overstayer due to late application submission.

I was unable to get the Post Study visa as it stopped the month before my graduating and UKBA also had my documents at the time as I was renewing student visa.

not sure this clears it up.

[vinny]

By appealing, you are challenging their unilateral declaration of your initial in-time application as being invalid.

However, I am not certain that you continue to qualify for discretionary leave.