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As a direct access immigration barrister I remember a few years back doing a lot of PBS cases where a document or two had not been submitted by the Applicant. Often this was the fault of the Applicant’s who had made the applications themselves. I had a lot of clients who had probably made student visa extensions and then thought they could make a Tier 1 or more complex application and fell foul of the notoriously complex or as one Judge described it Byzantine rules. Some had been poorly represented. At first it was possible to turn up with the missing document and the appeal would be allowed. Often on the spot. One might think this was an effective and useful way of disposing of cases, those who had the documents / met the rules would win and could go onto contribute to the economy and those who did not and would leave.

However due to the SSHD losing appeals rather than improving the quality of the decisions or making the rules simpler the SSHD brought into effect s.85A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which meant that if the documents were not submitted they could not be adduced.

The harshness of this silly rule, silly in my view, was militated by the Evidential Flexibility Policy. This was to be found firstly in the Immigration Rules themselves (paragraph 245AA among places) and then among a policy guidance handed out to caseworkers that basically allowed caseworkers a wide margin to ask for missing documents, indeed if there was any doubt it was for the SSHD to ask the Migrant. Unfortunately this policy was not properly disseminated let alone followed.

This lead to the Upper Tribunal decision in Rodriguez [2013] UKUT 42 which found that there was a policy, it favoured migrants and the failure to give migrants the benefits of the doubt or to follow the policy was unlawful. The headnote to this sensible decision provided:

“Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (“PBS”). This was revised with effect from May 2011. In its policy letter of 19th May 2011, UKBA states that during an unspecified trial stage applicants will be contacted where mandatory evidence is missing from their applications and given the opportunity to provide this. UKBA is under a public law duty to give effect to this policy in all cases to which it applies.

As regards all other applications, to which the policy letter does not apply, UKBA case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998.”

The SSHD was not happy with the outcome and appealed and the case came before the Court of Appeal and was reported as Rodriguez [2014] EWCA 2. LJ Davis gave the lead judgment and disagreed with almost everything said by the President in the Upper Tribunal in allowing the appeal. At [91] having found that the policy did not assist the LJ stated that there was no obligation to give the Appellant the opportunity to make good the shortfall.

And there Evidential Flexibility appeared to die. After the decision, a pretty harsh decision and one in my view that ignored the plain words of the policy and its purpose, the mention of EVP either outside or inside the rules would be a futile argument to pursue.

Happily matters did not end there. The case was appealed and the Supreme Court allowed the appeal against Rodriguez in the case now known as Mandalia [2015] UKSC 59. Lord Wilson gave the leading speech, which whom the remainder of their Ladyships and Lordships agreed (Lady Hale, Lord Clarke, Lord Reed and Lord Hughes). In total five of the highest judges in the land.

The Supreme Court gave pretty short shrift to the entire idea that the SSHD was not under any obligation. Indeed it might be seen that the Court of Appeal found that there was no such thing as EVP and the policy did not really exist or have to be followed. In a fairly short, but thankfully definitive decision the Supreme Court found that EVP did exist and contrary to what was said earlier there was an obligation on the SSHD if she considered that missing evidence might exist to consult with a senior colleague and then give the Applicant the benefit of the doubt and ask for the material. A more striking turn around is hard to see. It is yet another example of the Supreme Court making decisions that do not perhaps chime with the executive’s wishes or the somewhat conservative Court of Appeal.

If there was any doubt as to outcome it can be found in the following paragraphs of Lord Wilson’s speech [21 – 28] sets out the policy guidance. At paragraphs [29 – 35] he considers whether the policy has legal effect. Lord Wilson clearly finds that it bound the policy maker as can be seen from [32 – 35]:

Interpretation of the Process Instruction
32.  In step three of the process instruction a specific example was given of a situation in which the caseworker should request the applicant to provide further evidence: it was where a bank statement was “missing from a series”. This court has received elaborate submissions about whether, in circumstances in which Mr Mandalia had submitted a bank statement numbered 64, his statements numbered 62 and 63 can be said to have been “missing from a series”. The conclusion of the Court of Appeal was that they were not “missing from a series”. Davis LJ said:

“102 … this was not a “missing sequence” case; and it would again have been complete speculation on the part of the Secretary of State as to whether bank statements – if available at all – for the preceding period or the succeeding period would have shown the availability of funds in the required amounts.”

The Secretary of State concedes that a bank statement numbered 64 clearly indicates that statements for the preceding period are “available”; but otherwise she commends the analysis of Davis LJ. Indeed in R (Gu) v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), [2015] 1 All ER 363, Foskett J adopted it. The facts in the Gu case were almost identical to those in the present case but, by the date of Mr Gu’s application, the process instruction had been withdrawn and instead the court had to consider the references in the first version of rule 245AA to a document omitted from a “sequence” as well as to a bank statement missing from a “series”. In dismissing Mr Gu’s application for judicial review of the refusal of his application, Foskett J held:

“24 … something cannot be ‘missing’ from a sequence until the sequence itself exists. To my mind that means that at least the start and the end of the sequence must be in evidence for the sequence to exist. Something missing from it can only, therefore, be from within those two limits.”

Thus emboldened by the analysis of two highly respected judges, the Secretary of State submits that it is only when the applicant has provided the caseworker with what she calls two “pillars”, namely the pillar which marks the start of a series and the pillar which marks its end, that the caseworker can properly conclude that something is missing from the series which he should invite the applicant to provide.

33. 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. Mr Mandalia’s bank statements numbered 62, 63 and 64 formed a series. It must have been obvious to the caseworker, as he studied statement numbered 64, that it formed the last in a series and that the statement or statements which covered the preceding six days, and which turned out to be the statements numbered 62 and 63, were missing from the series.

34. But in my view it was not the task of the unfortunate caseworker even to attempt to split such hairs. The process instruction rightly stressed the need for flexibility by telling him:
a) in the introduction that there was now no limit on the amount of information that could be requested, provided that the request was not speculative;
b) in step three that bank statements missing from a series represented only an example of the further evidence which should be requested; and
c) in step four that, where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested.
35. 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? Of course it would have seemed possible to the caseworker that, although Mr Mandalia had held more than double the requisite funds throughout the later 22 days, he had not held the requisite funds throughout the first six days. But why was that possibility more likely than that an applicant who had provided statements covering only the first and last of the 28 days had not held the requisite funds throughout the intervening 26 days? In one sense every request by a caseworker for further evidence would have been “speculative” but what was there in Mr Mandalia’s application to render a request to him more “speculative” than any other? Was there not, at the very least, doubt, the benefit of which should have been given to him?

It seems to me that the Supreme Court thought the matter quite simple. The SSHD published a policy. It was intended to benefit Applicants and he was clearly not impressed by the SSHD’s argument reduced to being described as a “high level of pedantry”. Indeed it is sadly disturbing that the SSHD reduced herself in this case to essentially rely on pedantry to try and escape the effect of what was a clearly a sensible and user friendly policy designed to avoid overt and unjust refusals. What makes, in my view the SSHD’s view even more laughable is that the entire premise behind the Tier 1 (Entrepreneur) Scheme and indeed the Tier 4 Student visa route is to encourage (so we are told) genuine investors / students. I am as yet unaware of the government saying we want no foreign students and no investors or entrepreneurs – indeed the who Tier 1 (Entrepreneur) route was opened up to encourage investment.

Perhaps I have saved the best for last which is Lord Wilson’s conclusion in paragraph [35] and again I note the ease by which the Supreme Court dealt with this matter, it is right that by the stage of the Supreme Court, the Appellant Rodriguez had fallen away but there is still a considerable difference in length of the decisions.

At paragraph [36  – 37 ] Lord Wilson concluded, under the heading, answer:

Answer
36. I conclude that the answer to the question identified in para 1 above is “yes”: the agency’s refusal of Mr Mandalia’s application was unlawful because, properly interpreted, the process instruction obliged it first to have invited him to repair the deficit in his evidence. 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.
37. The court should therefore allow this appeal; should overrule the decision in the Gu case; and should quash the refusal of Mr Mandalia’s application so that, no doubt following the provision of further, updated information made by him pursuant to request, it may lawfully be re-determined.

What is the effect of this decision?

Sadly as a result of the hiatus caused by the deviation by the Court of Appeal a large number of cases will have been dismissed, rejected, appeals lost, leave lost and people departed who have all missed out had the original decision of the Upper Tribunal been upheld or had the Court of Appeal not found that the clear policy instructions did not have to be followed. The only caution to this tale is that the helpful policy was cut down dramatically in September 2012.

However I would urge anyone who had an application refused between the policy coming into being in 17 June 2011 and it being heavily amended in September 2012 on the basis of missing documents and who either appealed or did not appeal to get in touch with me or a suitably qualified lawyer. The consequences of an unlawful refusal may go far. It might be that an individual has lost out of a grant of ILR and / or British Citizenship as a result. It might that further applications were incurred that did not succeed.

Like the rejection by the Court of Appeal of the legality of the Detained Fast Track (“DFT”) the consequences of this decision may well go far.

As noted if you have had an appeal dismissed during this period, or indeed shortly after September 2012 I would really advise contacting a lawyer for a consultation. I am aware that shortly after the policy guidance was removed that paragraph 245AA was introduced with guidance that was if I recall fairly liberal at first and that it was only after a number of revisions did paragraph 245AA become the neutered EVP that it is today.

If I was advising someone who lost on the basis of the Court of Appeal’s decision I would potentially be looking at making a further application outside the Rules predicated upon what has happened with a view to a challenge to the higher Courts if required. I think it would be unlawful for the SSHD to ignore the consequences of the Supreme Court’s decision on this particular issue but that any further application would need to be properly crafted and made to ensure the best prospects of success.

On a personal level as a direct access immigration barrister I remember with horror the Court of Appeal decision in Rodriguez and the manner it appeared to be exploited by certain judges and home office representatives, I recall cases where even on the cut down 245AA rule an individual succeeded but the merest mention of EVP would visibly, in my view, cause the Court to become hostile. I recall a particularly unpleasant hearing before a High Court Judge in the Upper Tribunal who referred to my arguments predicated as they were on EVP (and I had produced every copy of the policy going back to 2011) as “waffle” and then criticised me personally for “bringing it (“EVP”)up during the hearing for the first time”. The only difficulty for this particular judge was that I had raised EVP in the original grounds of review. Something I felt compelled to point out to the apparent horror of the of the UT Judge sitting next to the High Court Judge. Having pointed it out the Judge withdrew the criticism from the official transcript. My frustration with the entire process was that it was never in doubt that this particular client possessed all the relevant money / documents and was defeated by, in my view, an over reliance upon the Court of Appeal’s decision in Rodriguez.

On both a personal and professional level I hope that there are individuals who benefit from the Supreme Court’s decision. The entire debacle at the Court of Appeal seemed highly unfair to me. It was not a bad or merely technical argument on which the Appellants had succeeded in the Upper Tribunal. It was an argument predicated on a straightforward and plain reading of the published policy of the time.