Supreme Court Allows Evidential Flexibility Appeal

On 14 October 2015, a generous Supreme Court allowed four appeals in as many judgments. In Gohil [2015] UKSC 61 and Sharland [2015] UKSC 60, among other things, “opening the floodgates” the court held that Varsha Gohil and Alison Sharland were entitled to have their divorce settlements reopened and seek new payouts because their former husbands had concealed vital financial information during their divorce cases. In Shahid [2015] UKSC 58, the court found that the appellant – who was convicted of the racially-aggravated abduction and murder of a 15-year-old boy – was segregated unlawfully during three separate periods totalling 14 months and that his article 8 rights had been violated. And in the immigration case of Mandalia [2015] UKSC 59, holding that the government’s “high level of pedantry” was “misplaced” the court unanimously allowed a Tier 4 (General) student’s appeal and quashed the refusal of his visa extension application. Presently aged 33, an Indian national, Mr Manish Mandalia entered the UK as a student in February 2008. His visa was extended until 9 February 2012. With just two days to spare, on 7 February 2012 he sought to renew his leave to continue his studies but his application was refused because his bank statements were not as specified by the rules.

Pursuing a two-year certified accountancy course, Mandalia submitted his application with evidence that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application whereas the rules underpinning his application exacted that his bank statements needed to show that he had held the said amount for a consecutive period of 28 days. He complained that the evidential flexibility policy, which allowed him to cure his mistake before his application was refused and a decision to remove him was made, was not applied to him. The question for Lady Hale DPSC and Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC was whether the home office acted unlawfully in refusing Mandalia’s application without first inviting him to provide a further bank statement or statements which showed that he had also held at least £5,400 throughout the missing/preceding six days?

The Supreme Court held that an applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but also free-standing from it.

Context

The appeal turned on the PBS Process Instruction: Evidential Flexibility (or the “process instruction”/“evidential flexibility policy”), designed to facilitate the efficient processing of applications falling within the points-based system (PBS) under part 6A of the Immigration Rules. (The PBS was implemented on a phased basis beginning in 2008.) According to the Supreme Court, where an overseas student’s application for an extension of leave to remain was faulty merely because the applicant had been required to supply bank statements showing a specified minimum bank balance (as evidence of funding) for a 28-day period before the application but the statement provided covered only a 22-day period (albeit showing an earlier statement with sufficient funds existed) the home office should have given the applicant an opportunity to furnish the necessary additional statement before refusing the application.

Equally, as decided by the Court of Appeal in AA (Afghanistan) [2007] EWCA Civ 12 at para 13, in tribunal appeals the home office is under a duty to put relevant policy material before the tribunal to avoid it being misled. Mandalia’s near four-year long court battle is also embedded in the tendentious section 85A provision inserted into the Nationality, Immigration and Asylum Act 2002 – by section 19(2) of the UK Borders Act 2007 – the operation of which produced the effect of precluding evidence not submitted to the decision-maker from later fixing the refused application upon appeal to the tribunal. Judge Forrester had not been alerted to the process instruction by the home office presentation officer and equally in subsequent proceedings Upper Tribunal Judge Martin did not deal with the evidential flexibility policy issue either.

The co-existence of the refusal of Mandalia’s application for leave to remain and the decision to remove him only made matters worse and the ambiguity of the terms on which permission to appeal was granted to the Upper Tribunal meant that whilst the appeal against his removal decision was allowed no argument was heard on his challenge under the process instruction to the first-tier judge’s decision to dismiss his appeal against the refusal of his application.

Even though the Tier 4 (General) application form Mandalia posted to the home office specified the minimum balance, the form nonetheless failed to specify the period the applicant had to cover and instead advised applicants to refer to the Immigration Rules and connected guidance prior to filling it out and completing it. The statement supplied with the application, numbered “64”, demonstrated an opening credit balance of £11,090.60 and a closing credit balance of £12,071.05. The statement recorded 10 transactions between 29 December 2011 to 19 January 2012 and between these 22 days it showed a lowest intermediate balance of £11,018.34.

However, irrespective of the fact that Mandalia did in reality possess sufficient funds to be granted a visa, these details fell short of the pedantic 28-day requirement exacted by the rules because the statement covered a consecutive period of only 22 days and therefore he failed to score the 10 points for evidence of funds. The letter acknowledging the receipt of the application was clear that if errors regarding missing documentation or omissions on the form became apparent, a caseworker would advise Mandalia on the steps he needed to take in order to rectify the problem.

That, of course, famously never happened and instead the application was refused – thereafter Mandalia no doubt suffered from stress and uncertainty for years until he finally won his epic battle in the Supreme Court. The process instruction encouraged limited evidential flexibility vis-à-vis omissions and imparted shorthand guidance to PBS caseworkers that although it originated as a policy devised for refusals solely on the absence of a piece of evidence or information, in its revised form (a) applicants had seven working days to produce additional evidence and (b) so long as requests for information were not speculative, no limits existed on the amount of information that could be requested from an applicant. In light of feedback from the National Audit Office and the Independent Chief Inspector, the reason behind the expansion of the policy to cater for multiple pieces of information was that applicants refused for failing to provide a single piece of evidence were benefitting under the process instruction but those with multiple pieces of missing information were often successful on appeal (a costlier and more time consuming alternative). In cases of missing evidence and minor errors, the process instruction advised caseworkers to apply a 19-step procedure of which the first five steps applied to the instant appeal.

The fifth step was for the caseworker to contact the applicant but only after first considering whether any evidence was missing, whether the application would fail irrespective of the missing information, whether bank statements were missing from a series and whether the caseworker was sure that the evidence existed and if not a line manager’s input/approval needed to be sought before performing the fifth step (which was to be enacted even in cases where the line manager was “unsure”).

With this neat bureaucratic machinery in mind, Lord Wilson was quite perturbed by the fact that that the PBS was grounded in the 2006 White Paper entitled A Points-Based System: Making Migration Work for Britain Cm 6741. Much to his Lordship’s bewilderment, its stated aim was to create “a more efficient, transparent and objective application process” but that instead of streamlining the visa process, as recorded by Jackson LJ in Pokhriyal [2013] EWCA Civ 1568 at para 4, the PBS lent itself to be likened to the type of peculiarities originating in the Byzantine Empire which meant that applicants, many of whom were not native English speakers, found it hard to navigate their way through the points scoring mechanism laid down in the rules. On the other hand, recognising that it may be that the PBS may “not [be] difficult for caseworkers to administer” Lord Wilson seized the opportunity to reverse the flow of injustice by suppressing the uncertainty thrown up by the sharp edges of the rules.

The Court of Appeal

In the Court of Appeal, Mandalia’s case had been decided together with the cases of Falguniben Patel (an Indian) and Jovy Rodriguez (a Filipina). Roundly rejecting the proposition that the evidential flexibility policy had been ignored or remained unappreciated, Sir Stanley Burnton and Davis and Pitchford LJJ thought otherwise and unanimously dismissed Mandalia’s appeal at [2014] EWCA Civ 2, see here. In the case of Jovy Rodriguez, reported as [2013] UKUT 42 (IAC), McCloskey J had concluded otherwise but Davis LJ held at para 58 that “I am afraid that I disagree at almost every single stage.”

The Court of Appeal had been handicapped by the lack of any analysis of the effect of the process instruction by both tiers of the specialist immigration tribunal but it nevertheless remained adamant that the requirement to inquire as to bank statements missing “from a series” did not extend to a preceding period.

Dismissing the conjoined appeals Davis LJ 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 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.

Davis LJ described the provisions for students in Tier 4 (General) as “very complex” and at para 39 his Lordship expressed great relief and said, “mercifully, it is not necessary to set them all out here.”

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 contention that the policy “was simply ignored.” For Davis LJ, at para 92, the evidential flexibility process instruction was demonstrably not designed to give an applicant the opportunity first to remedy any defect or inadequacy in his or her application or supporting documentation so as to save the application from refusal after substantive consideration.

The Supreme Court

Delivering the only judgment, Lord Wilson was unimpressed by the home office presenting officer’s lack of diligence and his Lordship found regrettable that official’s failure to draw the process instruction to the tribunal’s attention as home office policy. It was not possible to expect Mandalia to have known about it. At the outset of his judgment, his Lordship observed that the purpose of the PBS was to create “a more efficient, transparent and objective application process” but that antithetically the judiciary complained – as Jackson LJ had done in Pokhriyal – that it had “achieved a degree of complexity which even the Byzantine emperors would have envied.” The court felt sympathy for students, it noted that Parliament had approved of the home secretary’s view that the PBS is the optimum mechanism for managing immigration for the categories of person detailed therein and Lord Wilson explained at para 2:

the management of this type of immigration, in principle highly valuable for the UK, is a profound social challenge, of which the complexities are beyond the understanding of the courts.

In discussing the legal effect of the policy, Lord Wilson touched upon a string of cases. His starting point was Saadi [2001] EWCA Civ 1512 where Phillips of Worth Matravers MR (as he then was) held that government policy and the legitimate expectation to which such a policy gives rise can be used to restrict the exercise of statutory powers. Lord Wilson preferred to treat the present case as an instance of treating individuals consistently with official policy rather than as an example of the doctrine of legitimate expectation and his Lordship therefore said at para 29 that:

Since 2001, however, there has been some departure from the ascription of the legal effect of policy to the doctrine of legitimate expectation. Invocation of the doctrine is strained in circumstances in which those who invoke it were, like Mr Mandalia, unaware of the policy until after the determination adverse to them was made; and also strained in circumstances in which reliance is placed on guidance issued by one public body to another, for example by the Department of the Environment to local planning authorities … So the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing

Lord Wilson said the point had been ideally made by Laws LJ in Nadarajah [2005] EWCA Civ 1363 where he emphasised at para 68 that “public bodies ought to deal straightforwardly and consistently with the public” and held that unless there is good reason not to public authorities must generally honour their promises to preserve “good administration”.

Unsurprisingly, echoes of Lord Dyson’s lead judgment in Lumba (JUSTICE intervening) [2011] UKSC 12 are found in Lord Wilson’s judgment in the instant case. In Lumba, which concerned Walumba Lumba (a Congolese) and Kadian Delroy Mighty (a Jamaican), divided on some of the vexing issues which confronted it, among other things the court held by majority that the home secretary was liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties. It was also held that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability and since they suffered no loss they should recover no more than nominal damages of £1; they were not entitled to recover exemplary damages.

Importantly, in Lumba, at para 35 Lord Dyson thought public law gives the individual the right to have his case examined under whatever policy the executive sees fit to adopt if that policy is a lawful exercise of the discretion conferred by statute. His Lordship said that unless there are good reasons for not doing so, decision-makers must follow published policy and policy should not be so rigid as to amount to a fetter on the discretion of decision-makers. Applying Lord Dyson’s rationale to Mandalia’s case, Lord Wilson found that the process instruction was a lawful exercise of the power conferred on the home secretary under section 4(1) of the Immigration Act 1971. Moreover, the process instruction was sufficiently flexible and its legal effects were not construable as fettering caseworkers’ discretion.

In Gu [2014] EWHC 1634 (Admin), a case boasting almost identical facts as Mandalia’s appeal, Foskett J fell into the trap of thinking that for something to be “missing” from a sequence the sequence itself needed to be evidenced from its beginning to its end. Espousing Davis LJ’s approach below in the present case, Foskett J elected to dismiss a Chinese student’s application for judicial review on the basis that where an applicant like Mandalia had submitted a bank statement numbered 64, his statements numbered 62 and 63 were incapable of being construed as “missing from a series”. However, Lord Wilson reasoned otherwise and he overruled the decision in Gu and to his Lordship’s mind it was erroneous to believe that a sequence could only be implied in circumstances where two “pillars” clearly marking the start of a series and its end were apparent. Remarking at para 33 that he found the home office’s “submission to be misplaced even at the high level of pedantry on which it has been set,” because of the express advice to caseworkers set out the process instruction itself his Lordship formulated the view at para 34:

… it was not the task of the unfortunate caseworker even to attempt to split such hairs.

In view of the facts, it was all too apparent to Lord Wilson that the caseworker ought to have requested further evidence from Mandalia as the statement numbered 64 was in fact the last in the series and so the statements covering the preceding six days were missing from that series.

Such “missing from a series” statements were only one example of further evidence which should have been requested and uncertainty as to whether evidence existed meant that the applicant should have been given the benefit of the doubt. Exercising such a fluid discretion militated in favour of the caseworker following the process instruction and as noted above, there was no limit on the amount of information that could be requested. In other words, the caseworker should have requested Mandalia to provide the statements which covered the first six days of the 28-day period failing which the refusal of his application was unlawful.

Comment

Will a happy ending to the longstanding evidential flexibility controversy mean that the home office will reopen thousands of old files to provide applicants refused visas the opportunity to cure the mistakes they had made so that fresh consideration can be provided to their cases?

Even if this miraculously turns out to be true, as past cases in the PBS genre such as Alvi [2012] UKSC 33 and Pankina [2010] EWCA Civ 719 – where the rules had been gamed and modulated by external means – have already shown applicants who have borne the brunt of the home office’s unlawful behaviour will as a rule of thumb be short-changed because time related and geographic exceptions may be carved out to disentitle them from relief/reconsideration. The opening of any (potential) “floodgates” under the Mandalia judgment remains to be seen.

Yet, Miss Nazmun Ismail, who represented Mandalia, said that applying the process instruction not only helps the home office “gain more respect for itself” by operating the rules fairly but also makes the rules “intelligible and transparent” to unrepresented applicants (and not just to PBS caseworkers). Of course, now that the evidential flexibility saga has come to an end, the victims of the home office’s unlawful behaviour are still suffering as their tribunal appeals have probably already been dismissed and, save those electing to remain unlawfully, they have left the UK altogether.

As for those who have remained and have litigation pending, Mr Abid Mahmood (who led Nazmun Ismail in the Supreme Court) and his chambers jubilantly announced that:

The effect of this judgment is that other cases at the Court of Appeal and elsewhere awaiting this decision now have a clearer picture of the duties on the home office when dealing with [PBS] applications.

Equally, on the theoretical level, Professor Mark Elliot has also welcomed Lord Wilson’s approach and the influential public law academic remarked:

Mandalia represents the clearest acknowledgement so far at Supreme Court level that it is necessary to disaggregate legitimate-expectation and consistent-application-of-policy cases – a judicial stance that is to be welcomed …

By critiquing cases such as Rashid [2005] EWCA Civ 744, Professor Elliot has long argued that “the dignity and equality of individuals demands that established policies be applied to them equally advantageously” and it is therefore “necessary to disaggregate legitimate-expectation and consistent-application-of-policy cases”. (In TN, MA and AA [2015] UKSC 40, see here, the Supreme Court recently held that Rashid – an asylum case turning on the courts’ ability to intervene to give appropriate relief to compensate for an abuse of power by the state – lacks a satisfactory principle, is unclear and should no longer be followed.)

In relation to the outcome in Mandalia, Professor Elliot appears to have been particularly delighted with Lord Wilson’s conclusion that the applicant’s right to the determination of his application in accordance with policy (which acts “as a sort of Rawlsian veil of ignorance” and prevents abuses of power) is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but also “free-standing” from it.

In any event, appeal rights for all in-country PBS applications were abolished, and replaced with administrative review, by the staged transition to the Immigration Act 2014 which not only constricted the appellate regime but also introduced wholesale changes in relation to access to services, marriage and numerous other complicated issues which may well end up in the Supreme Court one day. Indeed, as the home secretary Theresa May and minister for immigration James Brokenshire have recently announced, in addition to introducing criminal offences for rogue employers and landlords, the Immigration Bill 2015-16 intends to fortify the new system further and widen the scope of the nebulous “deport first appeal later” provisions of the 2014 Act by applying them in all cases if removal pending appeal would not cause serious irreversible harm, or otherwise breach human rights.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Immigration Rules, Legitimate Expectation, PBS, Students, Tier 4, UKSC and tagged , , , , . Bookmark the permalink.

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