‘Evidential Flexibility’ in Supreme Court

Imagine that you made a mistake in your immigration application but were later able to fix the problem because of the “evidential flexibility” policy. This issue has vexed both litigants and the courts for quite some time now. On appeal from a decision of the Court of Appeal (Pitchford and Davis LJJ, Sir Stanley Burnton) reported at [2014] EWCA Civ 2 (20 January 2014), the case of Manish Mandalia (Appellant) v Secretary of State for the Home Department (Respondent) Case ID: UKSC 2014/0059 will be heard by Lady Hale DPSC, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC on 7 May 2015. The issue that needs to be decided is whether the Home Office was required to afford Mr Mandalia an opportunity to correct an error in his application for leave to remain before refusing it. Mandalia is from India. He entered the UK on a student visa in 2009. When he applied for further leave to remain as a student in February 2012 he was required by the relevant Immigration Rules to accompany his application with bank statements covering a 28-day period that demonstrated a minimum continuous balance of £5,400. (Update: the Supreme Court allowed this appeal, see here).

The bank statements he supplied with his application showed a credit balance in excess of £11,000 throughout. However, Mandalia made a mistake and provided statements covering only a 22-day period from 29 December 2011 to 19 January 2012. He complained that the Home Office did not apply its “evidential flexibility” policy to him. Upper Tribunal Judge Martin did not deal with any evidential flexibility policy arguments. Under the policy Mandalia would have had a chance to correct his mistake before his application was refused and a decision to remove him was made.

Context

In the Court of Appeal, Mandalia’s case had been decided together with the cases of Falguniben Patel and Jovy Rodriguez. It was held that the Home Office was not under any obligation to afford Tier 4 (General) student applicants for leave to remain any opportunity to remedy defects in their applications in relation to maintenance funding requirements under the evidential flexibility policy. Although they could and would have remedied the deficiencies in their applications, the decision-maker was not obliged to contact these appellants to enable them to fix any problems.

Mandalia and Patel appealed decisions of the Upper Tribunal, upholding the refusals of their applications for leave to remain, to the Court of Appeal. Rodriguez had won on the argument that she was allowed an opportunity to provide missing documentation prior to her application being decided. Mandalia, Patel and Rodriguez’s applications were refused on the basis of their failure to furnish the evidence in the form of banks statements to receive the number of points required to achieve the level of maintenance funding requirements in Appendix C of the Immigration Rules.

All of them submitted that before refusing their respective applications the Home Office was under an obligation to apply its evidential flexibility policy and provide them with an opportunity to correct the errors they had made because they had been in a position to do so. This was the “common issue” in proceedings and Rodriguez (in person representing herself, [2013] UKUT 42 (IAC)) succeeded in the Upper Tribunal whereas Patel failed on it. However, the point was not heard in Mandalia’s appeal.

Court of Appeal

An uneasy Court of Appeal described the provisions for students in Tier 4 (General) as “very complex” and Davis LJ remarked at para 39 that “mercifully, it is not necessary to set them all out here.” According to Davis LJ (with whom Pitchford LJ and Sir Stanley Burnton agreed), the evidential flexibility policy was not designed to provide an applicant for leave to remain the opportunity first to remedy any defect or inadequacy in an application or supporting documentation so as to save the application from refusal after examination.

The primary issue before the court was the correctness of the decision and reasoning of the Upper Tribunal in Rodriguez’s case. That presidential decision, [2013] UKUT 42 (IAC) (McCloskey J and Spencer UTJ), held that a letter dated 19 May 2011 from the UK Border Agency to the Joint Education Task Force was “of unmistakable importance and of unambiguously clear import”. The letter, written by Jeremy Oppenheim (National Lead: Temporary Migration, UK Border Agency) was said to represent a movement from a mechanistic application of the rules, towards one of greater flexibility, discretion and fairness. Finding that the “letter did not merely notify certain interested agencies of the advent of a new ‘flexibility policy’”, the Upper Tribunal held that:

It also heralded unequivocally the introduction of a new practice whereby all applicants would be notified of the absence of mandatory evidence from their applications and would be given the opportunity to rectify the relevant shortcoming prior to rejection. This is the ordinary and natural meaning of the words in the letter.

The letter was linked to the commencement of section 19 of the UK Borders Act 2007 which restricted the evidence an appellant could rely on at appeal to that which was provided to the original decision-maker. The Upper Tribunal placed considerable emphasis on the fact that the letter – which said that the Home Office remained confident that the points-based system (PBS) is accessible and understandable – recognised that the potential for human error will always exist. The letter said that:

… caseowners employ a measure of flexibility when considering PBS applications. For example, caseowners operate a system which allows them to contact applicants to request further documentation or clarification where appropriate.  In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection.

The Court of Appeal was confronted by issues regarding whether (a) Mr Jeremy Oppenheim’s letter was representative of a binding new policy; (b) the decision-maker ignored the relevant process instruction policy in Rodriguez’s case; (c) correspondence sent by the Home Office on receipt of Rodriguez’s application obliged it to give an opportunity to supplement documentation supplied; and (d) Mandalia and Patel’s appeals ought to succeed.

Extracting the germane points in the presidential Upper Tribunal’s decision, Davis LJ was utterly unimpressed with the road taken by McCloskey J and Spencer UTJ. His Lordship, therefore, lamented at para 58 that:

I am afraid that I disagree at almost every single stage.

Moreover, the court declined (at para 79) an invitation to impart general guidance as to how limited grants of permission to appeal are to be framed. Referring to Guidance Note 2011/No 1, as amended, issued by Blake J (President) in 2011, Davis LJ nonetheless said at para 80 that “[t]he guiding consideration must always be, where it is intended that a grant of permission to appeal is to be limited or restricted, that the grant is unambiguously clear.” Davis LJ did not buy into the Home Office’s application to set aside the grant of permission to Mandalia on the basis that the court had no jurisdiction.

Held

The Court of Appeal found it surprising at para 85 that the letter could be understood to convey (“unequivocally heralded”) a wholesale relaxation of the evidential flexibility policy. This was because the letter sought to address minor errors in the application process. Davis LJ also discerned at para 86 that the wording of the letter referred to existing policy and the third paragraph of the letter was unequivocal that the introduction of the provision in section 19 of the 2007 Act did not require applicants to do anything differently. Critically, the letter’s “language is permissive (‘allows’), not mandatory” and the court held at para 86 that “as regards the trialling of a validation stage referred to in the last paragraph, there is nothing to show that that was designed to introduce new policy.” Giving close scrutiny to the words “validation stage” and “mandatory evidence”, Davis LJ was puzzled that “the Upper Tribunal apparently felt able to proceed on the footing that the trial necessarily extended to Ms Rodriguez’s application.”

The court explained that the Help Text accessible to applicants made it clear that a student’s application will be considered valid when the specified particular requirements – including providing a passport, photographs, fee etc and completing the “mandatory sections” in the application form – have been adhered to. Davis LJ’s analysis was aided by and accorded with Sullivan LJ’s approach (at paras 49 to 51) in Alam [2012] EWCA Civ 960 where it was held that the distinction between information which is mandatorily required on an application form and information contained in the specified documents is a “real one”. As his Lordship said:

86. … In a context such as the present, such phrases are not to be taken as being used haphazardly. The Immigration Rules themselves – as does the prescribed application form – distinguish between information which is mandatorily required on an application form and information contained in the specified documents. Failure to provide what may be called mandatory information may mean that an application will be rejected at the outset as invalid without further consideration. But a failure to supply specified documents sufficient to establish the required number of points would not cause an application to be rejected at the outset as invalid: rather it would be refused after substantive consideration … In my view, this particular sentence of the letter of 19 May 2011 is to be read as having regard to that distinction and is to be so interpreted. I do not, with respect, think it bears the very wide interpretation attributed to it by the Upper Tribunal.

The court considered that there was some recklessness in the tribunal’s decision as there was a need for “caution” prior to the letter confidently being dually evaluated as being of “unambiguously clear import” and representing policy “unequivocally heralding the introduction of a new practice”. On proper analysis, the failure to provide specified documents sufficient to establish the required number of points would not be considered invalid from the outset, but would be rejected after substantive consideration. Accordingly, the letter made reference to existing policy, and mooted the possibility of some sort of trial, “with an eye to what was very shortly to be contained in the revised process instruction.”

The court did not find any evidence to hold that the evidential flexibility policy had been ignored or remained unappreciated. The decision-maker had taken the policy on board and was well aware of it. The text of all the refusal letters expressly stated that “[t]his decision has been made in line with the Immigration Rules and the Tier 4 Policy Guidance” and at para 88 et seq Davis LJ roundly rejected the Upper Tribunal’s conclusion that the policy “was simply ignored.” Notably, requests for information were not meant to be speculative. Sufficient reasons to believe the evidence existed were required and Davis LJ went on to hold that:

92. … Taken overall, the Evidential Flexibility process instruction is demonstrably not designed to give an applicant the opportunity first to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration.

Rodriguez

Accordingly, there was no evidence or reason to believe that Rodriguez had other funds available at the time of her application and the policy did not have to be applied in her favour. In line with Alam, the court also said that post application correspondence (advising the applicant that “if there was any problem with the validity of the application, such as missing documentation or omissions on the form”) deals with the validity of applications and not with the substantive issue of the points to be awarded on consideration. So the Home Office was not obliged offer a chance to make good any errors in documentation and it succeeded in the appeal against Rodriguez.

Mandalia

Mandalia’s case failed for the same reason because an enquiry in relation to the availability of additional bank statements would have been “complete speculation” on the part of the Home Office. Davis LJ opined at para 102 that it made “no real difference” that in Mandalia’s case the failure was to supply statements covering the necessary 28-day period and that the supplied statements did demonstrate a sufficiency of funds. The court held that whilst the Upper Tribunal misunderstood the scope of Mandalia’s appeal, remitting his case served no purpose because the only outcome would be dismissal.

Patel

Patel’s case was no different and produced the same result. The court repeated Moses LJ’s para 12 reasoning in Raju [2013] EWCA Civ 754 that “[t]here is no room in the points-based scheme for a near-miss.” Davis LJ also reminded the parties of Stanley Burnton LJ “succinct” decision in Miah [2012] EWCA Civ 261 (see here: as endorsed by the Supreme Court itself in Patel [2013] UKSC 72, see here) where he held that there was a “sliding scale” and that “a rule is a rule”.

Therefore, Davis LJ upheld the decision of Renton UTJ that the evidential flexibility policy did not oblige the Home Office in every case where there was a failure to meet the requirements of rules to make further enquiries and it had not been obliged to enquire whether Patel had further funds available.

Comment

Lord Neuberger PSCLeaving aside the question of whether or not the evidential flexibility policy heralded the introduction of a new practice, one thing is for sure: the fact the Supreme Court has launched a video on demand service has ushered in a new era of convenience and transparency. Emphasising that the move is a unique educational tool, the President Lord Neuberger announced:

Now justice can be seen to be done at a time which suits you.

In case readers are interested in other types of law, I also do some blogging on UK Supreme Court cases and other financial issues on this company law blog.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Court of Appeal, Immigration Rules, India, PBS, s 19 UKBA 2007, Students, Tier 4, Tribunals and tagged , , , . Bookmark the permalink.

4 Responses to ‘Evidential Flexibility’ in Supreme Court

  1. Abid Mahmood says:

    I have read your blog after it was brought to my attention by a colleague. I am Abid Mahmood. I appeared on behalf of Mr Mandalia at the Supreme Court. Just to let you know that judgment has been reserved by the Supreme Court. The Court did not give an indication as to when judgment will be handed down, but I suspect it might be later this legal term. I am aware there is quite a lot of interest in the case from lawyers and litigants in persons with ongoing cases so this update might prove useful for them.

    Best wishes,

    ama@no5.com

  2. mkp says:

    Hi Abid, I saw you in the hearing. I liked your point that your client was not given any coverage under the policy at the FtT stage. I also liked your point that Davis LJ has led himself up the garden path as he considers the Tier 4 (General) policy guidance to be the one and the same as the evidential flexibility policy. Thanks a lot for commenting. I hope you win!

  3. naveed says:

    Congrats on your win in this case

  4. Amjad says:

    Congratulations on your winning Mr Abid.

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