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Court of Appeal considers failure to enrol biometrics

In R (on the application of) Jayaraman v The Secretary of State for the Home Department [2018] EWCA Civ 2545 (15 November 2018), Peter Jackson LJ (with Sharp LJ’s agreement) considered the requirement to provide biometric information for an application for indefinite leave to remain and the grave consequences of failing to so do.  Jayaraman’s failure to enrol his biometrics led to the invalidity of his application and after the expiry of his limited leave to remain he was rendered an overstayer.

The Regulations

An applicant must apply for the the issue of a biometric immigration document in the manner specified in the Immigration Rules (Regulation 3 of the Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048)). Subsequent amendments to the Regulations required registration of biometrics for both limited and indefinite leave to enter or remain under 3(2)(a) or (b). Regulation 23(3) states that the consequences for failing to comply are refusal of the application for the biometric immigration document, treating the application for leave or entry clearance as invalid, and cancelling or varying the person’s leave to enter or remain.

The Rules

In late 2015 to early 2016, Paragraph 34A of the Rules required applicants to provide biometric information and make an appointment if required to by their application form or guidance.  The appointment must take place by the dates specified/agreed by the Secretary of State (‘SSHD’) . Paragraph 34C did not require the decision maker to contact the applicant to correct any error that renders the application invalid, if the failure was to enrol biometrics.

It should be noted that the Rules are now more generous:

  • An applicant must comply with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to – (a) making an appointment to provide biometrics” (Paragraph 34(9)).
  • As for invalidity, where the biometric requirements are not met, the SSHD “may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification” (Paragraph 34B(1)).
  • There is also further discretion. If the applicant does not comply with the notification, the application is invalid and will not be considered unless the SSHD exercises discretion to treat the application as valid if the appropriate fee has been paid and proof of identity provided (Paragraph 34B(2)).

The Court of Appeal’s Reasoning

Jayaraman was given several chances to enrol his biometrics:

  1. Thirteen days after submission of his application – the SSHD sent his solicitors a biometric enrolment letter requiring him to attend a post office within 15 working days to submit his biometric data. This was allegedly never received.
  2. One month after the first letter, a second letter was sent to the representatives referring to the first letter and providing an extension of 10 working days and warning of invalidity for non-compliance. This was posted to Jayaraman by his solicitors, under a cover letter marked ‘very urgent’ but second class and in the week of Christmas. Jayaraman allegedly never received this either…. READ FULL ARTICLE