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Supreme Court upholds evidential flexibility policy

The Supreme Court has given judgment in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59 about the interpretation and application of the Home Office’s Points Based System evidential flexibility policy. Regular followers of the blog will be familiar with this policy, which was first published here on Free Movement courtesy of Jane Heybroek. This was in 2012, despite the policy being in operation since 2009. It was later also published to the Home Office website.

For some reason the Supreme Court considered that the policy was withdrawn for applications made on or after 6 September 2012 but in fact it is still very much alive and present on the gov.uk website (last updated August 2014).

Implications for immigration law

On one level, Mandalia obviously concerns the application and interpretation of this evidential flexibility policy, which potentially softens some of the very sharp edges of the Points Based System used for managing skilled and student migration.

Complexity itself not unlawful

I have previously described the system in unflattering terms: “a system that is dementedly complex, which transcends mortal comprehension and yet which also allows for subjective and arbitrary decision making”. I find I am in good company, as the list of senior judges who have publicly criticised its complexity and the general tendency towards badly drafted immigration laws grows longer by the week. That list now includes Lord Wilson, giving the only judgment in Mandalia:

In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291, Jackson LJ observed at para 4 that they had “now achieved a degree of complexity which even the Byzantine emperors would have envied”. On any view, and contrary to a forecast in the White Paper, it is difficult for applicants, for many of whom English is not even their first language, to navigate their way around the requirements. It may be, however, that, as intended, the system is not difficult for caseworkers to administer. Certainly they have to a substantial extent been relieved of the obligation to consider whether to exercise discretions in their processing of applications. The sharp edges of the rules have cut out hard cases which have found their way to the courts and which have inevitably attracted at any rate the sympathy of the judges and sometimes – I speak for myself – nascent reservations about the suitability of the system which have not been easy to suppress. But suppressed they must be. For 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; and, by not exercising its right to disapprove Part 6A of the rules, Parliament has indorsed the Secretary of State’s considered opinion that a points-based system is the optimum mechanism for achieving management of it.

Speaking for myself, I have concluded that complexity, which was once simply incompetent, has gradually become intended. The tortuous nature of modern immigration law is the legislative manifestation of the “hostile environment”, deliberately making life as hard as possible for migrants and their families, employers or colleges. I had hoped for more from the Supreme Court, law maker that it is, rather than the shrugging of shoulders we see here.

Home Office must produce relevant policies in court

Mr Mandalia had applied under this arcane system for permission to study. He was required by the rules and the application form to show a certain amount of money in his bank account. The rules went on to say that the money had to be held for a continuous period of 28 days but the application form was silent on this point. Nevertheless, Mr Mandalia submitted statements showing he had considerably in excess of the required amount. However, he missed out some pages from the necessary series of bank statements.

Absurdly, his application was refused by an official at the Home Office. Even more absurdly, this official failed to apply the Home Office’s evidential flexibility policy, which at the very least enabled Home Office officials, amongst other things, to request documents missing from a series of documents, bank statements being given in the policy as a specific example. Piling perversity and negligence onto these absurdities, on appeal to the First-tier Tribunal the judge was barred by the “controversial” section 85A of the 2002 Act from adducing the missing bank statements and the Home Office Presenting Officer failed to alert the judge to the evidential flexibility policy. This was a breach of the HOPO’s duties:

But, irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office Presenting Officer clearly failed to discharge his duty to draw it to the tribunal’s attention as policy of the agency which was at least arguably relevant to Mr Mandalia’s appeal: see AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12 at para 13.

This is an important reminder to HOPOs that they do have a duty to produce relevant policies and instructions, particularly in cases involving litigants in person. Experience suggests this rarely if ever happens in practice. A failure to do so might be remedied by an appeal to the Upper Tribunal or, as discussed later, perhaps by a set-aside application. Returning to Mr Mandalia, though, the First-tier judge followed the inflexible approach to such cases that was then and remains fashionable with the immigration judiciary. The appeal was dismissed.

Mr Mandalia fared no better in the Upper Tribunal. An adviser assisted him with an application for permission to appeal and flagged up the existence and relevance of the evidential flexibility policy. The grounds also pleaded an obscure and utterly pointless (ed. – boom boom!) jurisdictional point turning on section 47 of the 2006 Act, and following an ambiguous grant of permission (all too common in the UTIAC) on this latter ground alone the Upper Tribunal allowed Mr Mandalia’s appeal. This did Mr Mandalia no service at all and certainly did not allow him to study in the UK as he wished.

On appeal to the Court of Appeal, the Court permitted Mr Mandalia to plead the evidential flexibility issue. However, the Court somehow contrived to dismiss his appeal, with Davis LJ giving the leading judgment: Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 with Free Movement write up here. Davis LJ held that the policy permitted Home Office officials to request missing evidence but imposed no obligation. The debate in the Court of Appeal was framed by the terms of the determination in Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC), in which now President McCloskey held that there had been a wholesale revision of the underlying approach to the Points Based System to allow for greater flexibility.

Evidential flexibility policy obliges flexible approach

The Supreme Court sticks to the terms of the evidential policy itself. The Secretary of State argued, relying of comments by Davis LJ in the Court of Appeal and Foskett J in the case of Gu v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), that Mr Mandalia’s case was not a “missing sequence” case because the missing bank statements all fell at one end of the necessary time period. Lord Wilson refers to the judges as “highly respected” before dismissing this point, and doing so with prejudice so to speak:

Speaking for myself, I consider the Secretary of State’s submission to be misplaced even at the high level of pedantry on which it has been set.

In any event, Lord Wilson continues, the policy instruction emphasises the need for flexibility and goes on:

Conferred, as he was, with that necessary degree of flexibility, how could the caseworker have followed the process instruction otherwise than by requesting Mr Mandalia to provide the statement or statements which covered the first six of the 28 days?

There is more in that rhetorical vein before Lord Wilson goes on to hold that the evidential flexibility policy obliged the Home Office caseworker to request the missing evidence. This explicit reference to there being an obligation effectively restores the position in Rodriguez and overrules not only the Court of Appeal judgment but also later Upper Tribunal judgments on the same issue.

Does standard letter give rise to legitimate expectation?

Lastly, Lord Wilson ends by leaving open a very interesting question on the effect of the standard letter sent by the Home Office in response to immigration applications. The version received by Mr Mandalia read:

If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise you what action you need to take to rectify the problem.

This letter might well be read as saying that missing documentation or omissions on the form could be rectified and that the Home Office would give an opportunity do so. It is what it says, at least. On this letter, Lord Wilson dodges the issue and says he reaches his conclusions without reference to the letter:

I reach this conclusion without reference to the terms of the agency’s letter to Mr Mandalia dated 8 February 2012, set out in para 10 above. The Secretary of State may well be correct to say that, however broad the apparent assurance that Mr Mandalia would be advised about deficits in his application, the intention of the letter’s author was to limit the assurance to deficits in what the Secretary of State describes as the initial validity of the application as opposed to deficits which might emerge on its substantive consideration. But this distinction carries a subtlety which would have been lost on Mr Mandalia. No doubt he would reasonably have understood the letter to make clear that, were there to have been a deficit in his evidence of having held the requisite funds, it would be drawn to his attention before his application was refused. It is, however, unnecessary to decide whether the letter conferred on Mr Mandalia a legal entitlement to that effect.

There is clearly some scope for arguing legitimate expectation in this context, although I think all those familiar with the Upper Tribunal would have reason to doubt the success of such an argument in that forum. See the obiter comments of Upper Tribunal Judge Southern in R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 191 (IAC), for example, in which he goes out on something of a legal limb to suggest legitimate expectation cannot override the requirements of the Immigration Rules.

What should the wrongly refused do now?

There are a very considerable number of applicants under the Points Based System who should have benefited from the evidential flexibility policy but who have instead, we know now, been wrongly and unlawfully refused. The immigration tribunal and Court of Appeal failed to protect their legal entitlements and many have now either left the United Kingdom — studies, jobs or businesses abandoned — or remain here unlawfully.

It is worth reiterating that the evidential flexibility policy is, despite what the Supreme Court rather puzzling wrongly says, alive and well and still applicable to current cases (at least it is at the time of writing). The policy supplements the new more flexible rules introduced at paragraph 245AA from 6 September 2012. The judgment in Mandalia does therefore have some continuing practical utility in immigration cases, unless or until the policy is withdrawn.

For those whose appeals were wrongly dismissed, the First-tier Tribunal has a power to set aside earlier determinations at paragraph 32 of the procedure rules. There is a possibility this mechanism might be used to overturn at least some old determinations. There are preconditions which must be met:

(a) a document relating to the proceedings was not provided to, or was not received at an appropriate time by, a party or a party’s representative;
(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate time;
(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.

Whether any of these apply in an individual case is unclear. A failure by the Home Office to produce a copy of the evidential flexibility policy might fall within (a), (b) or (c). If the policy was provided, though, and the judge simply followed the Court of Appeal judgment in Mandalia, the remedy would have to be an out of time application for permission to appeal. This would need to be made as soon as possible.

Alternatively, in some circumstances it might be feasible to make a new application to the Home Office. This possibility is fraught with difficulties, though, because it involves trying to get back on a horse that has already bolted. The original course of studies, job offer or business will have long gone and it is impossible to offer proper restitution. It might be argued that fairness demands that the wrongly refused applicant is at least given another crack at the whip and permitted an opportunity to take up a new course or job, but this is not an easy case to make in legal terms.

There is also a possibility the Home Office itself might announce a policy to offer some kind of recompense to those affected. This has occurred in the past following adverse judgments against the Home Office. Such policies tend to be highly restrictive. If anything is announced, it will certainly be publicised here on Free Movement.

Wider public law significance

Practicing immigration lawyer that I am, I tend to be more interested in the immediate impact of judgments for my clients. As discussed already, Mandalia is a mixed bag in this respect. It is hugely frustrating that, in practice, Mandalia comes too late for so very many clients who have been wrongly denied status by the Home Office.

The judgment is also interesting from a wider and more long term public law perspective, though. I can highly recommend the excellent write up by Professor Mark Elliot on his blog Public Law for EveryoneLegitimate expectations and the consistent application of policy.

Professor Elliot observes that there has sometimes been insufficient clarity in distinguishing between an individuals’ legitimate expectations and a (putative) overlapping-but-distinct requirement to treat individuals consistently with official policies. As he says:

Where the individual knows of the policy and derives a legitimate expectation from it, this is a distinction without a difference. But where the individual — as in the present case — does not know of the policy, the distinction presents itself in a more obviously relevant form.

Lord Wilson observes that on the facts of the case it would be “strained” to see Mr Mandalia’s right to be treated fairly as a manifestation of the doctrine of legitimate expectation. Rather he endorses Laws LJ’s judgment in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363:

Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.

This is consistent with the line already taken by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 but Professor Elliot argues Mandalia is an even clearer disaggregation of legitimate-expectation and consistent-application-of-policy cases.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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