A Lesson In Why PBS Migrants Should Instruct An Immigration Solicitor
The best Immigration lawyers in London espouse the importance of having an Immigration solicitor assist PBS migrants in preparing their visa applications. The latest case of Mudiyanselage v Secretary of State for the Home Dept and other cases [2018] EWCA Civ 65, [2018] All ER (D) 04 (Feb) illustrates the value an Immigration lawyer can bring to ensuring entry-clearance is not denied because of incorrect documentation being submitted.
The Home Office is not always required to give second chances if you make a mistake in your application or supporting documents.
The case is a stark reminder that anyone seeking to enter the UK under the PBS must follow the requirements to the letter. An Immigration solicitor can ensure you do.
The facts of the case
Mudiyanselage v Secretary of State for the Home Department and other cases was one of six appeals held in November 2017 that challenged the law commonly labelled ‘evidential flexibility’ in relation to points-based system (PBS) applications under Part 6A of the Immigration Rules. It is an extremely complex decision. For the purposes of this article, we are only concerned with Mr Mudiyanselage’s case itself.
On 5th April 2013, Mr Mudiyanselage applied for leave to remain as a PBS Tier 1 (entrepreneur) migrant. He was required by the Immigration Rules, Appendix C to satisfy the maintenance requirements by showing that he had access to a minimum level of funds for a continuous period of at least 90 days, ending no earlier than 31 days before the date of the application. To meet this requirement, Mr Mudiyanselage submitted a letter from a financial institution stating the funds were held from 18th January 2013, i.e. for a period less than 90 days. However, the funds had in fact been held since 18th January 2012.
Mr Mudiyanselage’s solicitors (not connected with OTS Solicitors) informed the Home Office of the mistake on 30th May 2013 and said they would send in corrected documentation from the financial institution as soon as possible. The Secretary of State stated the letter never arrived. A corrected document was eventually supplied on 12th August 2013, two months after the refusal.
The application was refused on the basis that the letter from the financial institution did not show that the funds in question had been held for a sufficient period. It went on to say that:
“…the decision has been made not to request additional documentation or exceptionally consider the application under the provisions of para 245AA as it is not anticipated that addressing the omission or error would lead to a grant of leave”.
The decision of the Court of Appeal
An application for judicial review was denied. However, the applicant was able to appeal to the Court of Appeal. The appeal was unsuccessful.
The appellant based his appeal on four factors:
- The documentation given to the Home Office for leave to remain under the Tier 1 Entrepreneur Visa was “in the wrong format” so this required the Home Office to provide an opportunity to correct the mistake. However, this was rejected as the court held the refusal was based on the incorrect content of the document, not for how it was presented.
- The error was minor therefore an opportunity to correct it should have been provided. However, the court held the basic rule under para 245AA(a) is that the correct documentation must be supplied at the time the application is submitted.
- It was unfair for the Home Office to refuse to alter the rule as Mr Mudiyanselage solicitor had alerted the department to the mistake (although the letter never arrived). This was rejected on the same grounds as above; the correct documentation had to be submitted with the initial application.
- The appellant argued that, in certain circumstances, judicial review may be available where a decision is impaired by a mistake of fact, and that the Secretary of State made her decision based on the mistaken belief that Mr Mudiyanselage did not have the necessary funds for the requisite period. This point was rejected on the basis that the Secretary of State was entitled to make her decision based on the documents supplied by the applicant. It was not her fault they were incorrect.
In summary
This decision may seem harsh, and it is. The opportunity for the applicant to correct the mistaken documentation simply isn’t available. Remember, the Home Office is under pressure to reduce Immigration, therefore needs no excuse to reject applications.
The most important lesson from this case is to ensure you seek the best advice from an Immigration solicitor in London before you submit your application and supporting documentation. They will check everything over and ensure it is correct. This will protect you from the frustrating and sometimes heart-breaking experience of having an application rejected because of a silly mistake that you are barred from correcting.
OTS Solicitors is one of the most respected Immigration law firms in London and is a Legal 500 leading firm. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
For advice on PBS visa applications, please contact us on 0203 959 9123 to speak to one of our Immigration consultants.