Visa applicants - the requirement for biometric enrolment
04 January 2019
Christmas and New Year is for many people a time to catch up on their reading and tackle the great novelists, so as to try and gain an insight into the turgid meanderings of human folly or, at least, to be entertained by them.
We, on the other hand, turned to the judgement of the Court of Appeal in the case of "Jayaraman". It was shorter than most of the great novels but had some similar characteristics.
Mr Jayaraman was an Indian head chef. Presumably he must have been a good one: he held a Tier 2 Intra-Company Transfer visa, which had been extended on various occasions.
Now, in November 2015 he had been such a head chef for a good few years. Under the rules in force at that time (and differently from now) Tier 2 ICT visa holders could acquire indefinite leave to remain after five continuous years.
So he instructed firm of solicitors X to submit on his behalf an application to the Home Office for indefinite leave to remain. And thus the wheels of fate were put in motion. If he had instructed solicitors Y then the wheels might have turned differently, but he didn’t. As is common practice, in the application form solicitors X put their postal address as the contact address for Mr Jayaraman.
It appears that on 17 November the Home Office wrote to the solicitors - as is standard procedure -requesting Mr Jayaraman to attend a post office and provide his biometric details (ie have a photograph and fingerprints taken). They gave - as is also standard practice - 15 working days for this to be done.
Solicitors X deny ever having received such a letter and so of course he did not comply. The Home Office then on 17 December sent - still standard practice - another such letter, with another deadline.
This time the solicitors did receive the letter, on 21 December, and they forwarded it on to Mr Jayaraman by post on 22 December. The perceptive reader will have spotted the fact that this was very close to Christmas. And here a note of obscure humour was introduced: the solicitors marked the envelope "very urgent" but they sent the letter by second-class post.
But this ultimately did not matter, because Mr Jayaraman did not receive the letter in any case.
This second letter said that he had to provide his biometric details by 5 January 2016. On 4 January, by now becoming worried about the situation, he telephoned his solicitors and asked them what was going on, and only then found out about this second letter.
So his solicitors emailed the relevant part of the Home Office to tell them that their client had not received the second letter, and asked them to send yet another one. The Home Office emailed back, saying that they would, but that this time they would send it to him direct, not to them.
But it seems that he did not receive this third letter either. So by this stage the plot had become very thick indeed. The Home Office then wrote to the solicitors to tell them that Mr Jayaraman’s application was now deemed to be invalid because, despite being given various opportunities, he had not provided his biometric details.
But it was worse than this. He was by now an overstayer and he no longer had legal status in the UK. His passports had been retained by the Home Office and he was served a notice of liability to removal.
And thus the dysfunctional drama had unfolded. We have no reason to doubt that Mr Jayaraman was a hard-working migrant, doing a worthwhile job who, as the rules then stood, had every expectation of acquiring settlement. As we all know, a lot of British people love Indian food.
Could it really be that in such a situation such a worthwhile individual could lose not only the right to settlement but the right to remain in the UK, and all because of administrative cockups that were not his fault? Could it possibly be fair?
Well, he thought not, and he took the matter to law. Eventually the case reached the Court of Appeal, which has recently published its decision. A decent ordinary person’s moral fight for justice against "the system"? Well, in a way perhaps, but interestingly his lawyers did not attempt to argue in a general way that the decision was unfair - they presumably calculated that such an argument was doomed to failure. Instead they tried to argue that the decision was wrong on a technical legal basis.
But to no avail. As the court pointed out, the second letter had been in the hands of his solicitors and they had not succeeded in communicating with him about it. As the court squarely put it, this was not an "uncommunicated administrative decision" within the legal meaning.
So Mr Jayaraman lost, and we feel deeply sorry for him. We have often said that it is wise to instruct a lawyer in your immigration application but, very importantly, you should instruct a competent one.
At Garth Coates Solicitors we fully understand how sometimes - and in a situation such as this - it is necessary to communicate with the client with the utmost urgency in order to avoid disaster.
Garth Coates Solicitors