OA065892013

This appeal comes before me following the grant of permission to the appellant by Designated First-tier Tribunal Judge Baird in respect of the determination of First-tier Tribunal Judge Aujla who dismissed the appeal by way of a determination dated 29 October 2013. An oral hearing had not been sought by the appellant and no written submissions or further evidence was adduced in support of the appeal.

The appellant is a citizen of Guyana born on 6 August 1992. She seeks entry clearance to join her mother, the sponsor, for settlement. The application was refused under paragraph 301(ii) of HC 395 on the basis that the respondent was not satisfied that the appellant was under 18 years of age. It is the respondent�s case that the appellant made her application on the wrong form and paid the wrong fee (i.e. for her own circumstances). The judge agreed and concluded that the Entry Clearance Officer had been entitled to refuse her on the basis that she was not a minor child as the form required.

Permission was granted on the basis that there may have been unfairness by the respondent in not alerting the appellant to the fact that she had applied on the wrong form and providing her with an opportunity to rectify her error.

Alternatively, Ms Kansal relied on Rule 34 submitting that the ECO should have treated the application as invalid because the wrong fee had been paid and returned the fee to the appellant. That way she could have re-submitted the application correctly and paid the right fee.

Ms Kansal submitted that the appeal should be remitted to the ECO for consideration under paragraph 317.