Court of Appeal

Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC) overturned in Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754

This in an appeal concerning four Tier 1 PSW applicants in whose case the Upper Tribunal concluded that they were entitled to the 75 points they needed for PSW visa because although they had not sent the required documents when they sent their PSW applications to the Home Office, they had been awarded the qualification by the time the Secretary of State made her decision. The Secretary of State appeals against this Upper Tribunal decision in this case.

The appeal turned on the construction of the relevant provisions in the Immigration Rules and the Home Office contended that the relevant rule requires the qualification to have been obtained within the period of 12 months prior to the making of the application. The Court held that Paragraph 34G of the Immigration Rules precludes the concept of a continuing application which starts when it is first submitted and concludes at the date of the decision.

The Court held that an application is made when paragraph 34G says it is made and AQ  is not authority for the proposition that the applications were ‘made’ throughout the period starting with the date of their submission and finishing with the date of the decisions.

This judgment has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC) and bad news for PBS applicants indeed, although from the wording of the judgement it is arguably that it only applies in quite narrow circumstances.

This does not mean that applications are always closed at the date the application is submitted. The normal rule remains that an application is open and can be varied up until the date of decision: JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. However where PBS applicants supply further documents after the date of application it is only helpful if the documents go to show the situation before the date of application.

In any case where documents were missing or in wrong format and the application was subsequently refused without any regard to evidential flexibility policy then the decision may be successfully challenged on appeal.

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