Jayaraman, R (on the application of) v The Secretary of State for the Home Department, Court of Appeal - Civil Division, November 15, 2018, [2018] EWCA Civ 2545

Resolution Date:November 15, 2018
Issuing Organization:Civil Division
Actores:Jayaraman, R (on the application of) v The Secretary of State for the Home Department
 
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Case No: C2/2016/3738

Neutral Citation Number: [2018] EWCA Civ 2545

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

Date: 15 November 2018

Before :

LADY JUSTICE SHARP

and

LORD JUSTICE PETER JACKSON

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Between :

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Edward Nicholson (instructed by KTS Legal Solicitors & Advocates) for the Appellant

Julie Anderson (instructed by Government Legal Department) for the Respondent

Hearing date: 8 November 2018

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Judgment

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. Since November 2016, the process is somewhat different: see current Paragraphs 34, 34A and 34B on valid and invalid applications. 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...

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