JUDGMENT
Mandalia (Appellant) v Secretary of State for the
Home Department (Respondent)
before
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Reed
Lord Hughes
JUDGMENT GIVEN ON
14 October 2015
Heard on 7 May 2015
Appellant Respondent
Abid Mahmood James Eadie QC
Nazmun Ismail Mathew Gullick
(Instructed by Fountain
Solicitors
)
(Instructed by The
Government Legal
Department
)
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LORD WILSON: (with whom Lady Hale, Lord Clarke, Lord Reed and Lord
Hughes agree)
Question
1. In 2008 the appellant, Mr Mandalia, who was then aged 25, came from India
to the UK in order to study. His visa, as extended, was due to expire on 9 February
2012. On 7 February 2012 he applied to the UK Border Agency (“the agency”) for
a further extension of it in order to study accountancy. The rules referable to his type
of application were that it had to be accompanied by a bank statement or statements
showing that he had held at least £5,400 for a consecutive period of 28 days ending
no earlier than a month prior to the date of his application. Mr Mandalia
accompanied his application with a bank statement but it showed 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. The statement which he provided did not cover
six of the requisite 28 days. The extra coverage might have been either of the six
days immediately following the period of 22 days covered by his statement or of the
six days immediately preceding it; but in what follows it will be convenient to
address the deficit in his coverage as being the latter. The agency refused Mr
Mandalia’s application for a further extension. The question is: did it act unlawfully
in refusing his application without having first invited him to supply a further bank
statement or statements which showed that he had also held at least £5,400
throughout those six preceding days? On 20 January 2014 the Court of Appeal, by
a judgment delivered by Davis LJ with which Pitchford LJ and Sir Stanley Burnton
agreed, gave a negative answer to that question: [2014] EWCA Civ 2, [2014] Imm
AR 588. Mr Mandalia’s appeal to this court requires us to consider, in particular,
the agency’s instructions to caseworkers which then applied to their processing of
such applications.
The Rules
2. In March 2006 the Secretary of State presented to Parliament a White Paper
entitled “A Points-Based System: Making Migration Work for Britain” Cm 6741.
In Australia the rules for controlling immigration for the purposes of work or study
had been encompassed in a points-based system and the White Paper heralded the
introduction of an analogous system in the UK for the control of immigration for
such purposes from outside the EU. According to the White Paper a key outcome of
the system would be “a more efficient, transparent and objective application
process” (paragraphs 3, 25). The system was introduced into the Immigration Rules
(“the rules”) as “Part 6A: POINTS-BASED SYSTEM”, which became operative in
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stages beginning in November 2008. Since becoming operative, the provisions of
Part 6A, including the appendices to it, have been amended on numerous occasions.
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.
3. The points-based system has five tiers. Into Tier 1 fall highly skilled workers,
entrepreneurs and investors. Into Tier 2 fall ordinary skilled workers if sponsored
by a UK employer. Tier 3, designated for certain low-skilled migrants, has never
been brought into operation. Into Tier 4 fall students if sponsored by educational
establishments and they are subdivided into “General” students, broadly
encompassing adults, and “Child” students, broadly encompassing minors. Into Tier
5 fall temporary workers.
4. Mr Mandalia’s application was therefore for leave to remain in the UK as a
Tier 4 (General) Student.
5. Mr Mandalia wished to become a certified accountant by pursuing a two-year
course of study at the BPP University College of Professional Studies. The college
furnished him with a document entitled “Confirmation of Acceptance for Studies”,
by which he secured the points which satisfied requirement (c) of Rule 245ZX of
the rules and paragraph 113 of “Appendix A: Attributes”.
6. But requirement (d) of Rule 245ZX obliged Mr Mandalia also to secure
points under “Appendix C: Maintenance (Funds)”. An understanding of requirement
(d) is achieved only by travel through seven stages.
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i. Paragraph 1A of Appendix C provided:
“(a) The applicant must have the funds specified in the relevant
part of Appendix C at the date of the application.
(b) …
(c) If the applicant is applying as a Tier 4 migrant, the applicant
must have had the funds referred to in (a) above for a
consecutive 28-day period of time.”
The relevant part of Appendix C was in paragraphs 10 to 14.
ii. Paragraph 10 provided that, as a Tier 4 (General) Student, Mr
Mandalia had to score ten points for funds.
iii. Paragraph 11 provided that he would secure ten points only if the
funds shown in tabulated form were available to him “in the manner
specified in paragraph 13”.
iv. The table in paragraph 11 required him to show not only funds with
which to pay the fees for the first year of the course (being a
requirement which Mr Mandalia satisfied) but also, and here I refer to
the figures in the table as they stood on 7 February 2012, £600 per
month for nine months (ie £5,400), as evidence of his ability to
maintain himself while pursuing the course.
v. Paragraph 13 provided that funds would be available to Mr Mandalia
only where “specified documents” so demonstrated.
vi. Rule 245A of the rules, as it stood on 7 February 2012, provided that
“specified documents” meant documents specified by the Secretary of
State in a publication entitled “Tier 4 of the Points Based System –
Policy Guidance” (“the policy guidance”).
vii. The version of the policy guidance operative on 7 February 2012,
namely the version dated July 2011, made clear, at para 182, that the
consecutive 28-day period identified in para 1A(c) of Appendix C to
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the rules was a period ending no earlier than a month prior to the date
of the application and, at para 188, that, of the five types of document
which could demonstrate availability of the funds, one was Mr
Mandalia’s bank statements.
7. The rules therefore required Mr Mandalia to demonstrate, in particular by the
provision of bank statements, that he had held at least £5,400 for a consecutive
period of 28 days ending no earlier than 7 January 2012.
Mr Mandalia’s Application
8. Mr Mandalia completed the form appropriate to an application for leave to
remain as a Tier 4 (General) Student. It ran to 43 pages. Section L of it was entitled
“Maintenance (Funds)”. Section L7 said:
“The student must have £600 for each calendar month of their
course up to a maximum of nine months. … Please state what
this amount is:”
In the box Mr Mandalia wrote “£5,400”. Section L24 said:
“Please tick to confirm the documents submitted as supporting
evidence to show the student has access to the required amount
of money for maintenance and funds.”
Mr Mandalia ticked the first box, entitled “Personal bank or building society
statements”.
9. The bank statement which Mr Mandalia enclosed with his application form,
submitted by post with the requisite fee on 6 February 2012 and received by the
agency on the following day, was a statement relating to a current account held in
his name with HSBC. It covered the period from 29 December 2011 to 19 January
2012, namely 22 days. Importantly the statement was numbered sheet 64 and the
opening entry for 29 December 2011 was a credit balance “brought forward” of
£11,090.60. The closing balance was a credit balance “carried forward” of
£12,071.05. Transactions occurring between those dates amounted only to eight
modest debits and two less modest credits. The balance was at its lowest on 6
January 2012: it was then £11,018.34.
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10. By letter to Mr Mandalia dated 8 February 2012, the agency acknowledged
receipt of his application and said that it would be passed to a casework unit. The
agency added:
“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.”
11. By letter to Mr Mandalia dated 21 April 2012, the agency, which had made
no further contact with him following its letter dated 8 February 2012, informed him
that his application had been refused in accordance with the rules and the policy
guidance and that a decision had also been made for his removal from the UK
pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006 (“the
2006 Act”). The agency made clear that the ground for refusal of his application was
that he had failed to demonstrate that he had held £5,400 for a full 28-day period
and that he had therefore failed to secure the requisite ten points.
12. It will already be apparent that nothing in the application form itself could
have alerted Mr Mandalia to the requirement to enclose bank statements which
demonstrated that his holding of at least £5,400 had endured for a consecutive period
of 28 days (“the 28-day requirement”). It would have been easy for the agency to
explain the 28-day requirement in its instruction in section L24. It is probable that,
when he obtained the form, Mr Mandalia also obtained a leaflet entitled “Help Text”
which, on the front of the form, the agency advised him to read prior to completing
it. But, although not every page of the leaflet in its then current form is before the
court, the agency accepts that, again, there was nothing in it to alert Mr Mandalia to
the 28-day requirement. The Secretary of State relies, however, on the following
advice set out at the beginning of section L of the form:
“Before filling in this section of the form, the student should
refer to the Immigration Rules … the help text leaflet available
with the form and … Policy Guidance …”
The respective links to gaining access to the rules and to the policy guidance on the
agency’s website were duly set out within that sentence. So the Secretary of State is
able to say that, were an applicant such as Mr Mandalia to follow the advice set out
at the beginning of section L, he would, on arrival at Rule 245ZX of the rules and at
para 1A of Appendix C, learn of the 28-day requirement; and that, on arrival at para
182 of the policy guidance, he would notice it again and would also learn that the
28-day period was required to end no earlier than a month prior to the date of the
application.
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The Proceedings
13. Mr Mandalia appealed to the First-tier Tribunal (Immigration and Asylum
Chamber) against the agency’s refusal of his application. He represented himself at
the hearing before the Tribunal Judge; a Home Office Presenting Officer represented
the Secretary of State. On 2 July 2012 the tribunal dismissed Mr Mandalia’s appeal
on the ground that his application had fallen foul of the 28-day requirement. He had
enclosed with his notice of appeal statements numbered 62 and 63 relating to his
account with HSBC. The statement numbered 63 was confined to transactions on 28
December 2011 and so Mr Mandalia had also enclosed statement numbered 62,
which covered all preceding transactions from 29 November 2011 onwards. The
statements demonstrated that, on the missing six days between 23 and 28 December
2011, Mr Mandalia’s credit balance had been £11,280.30 for the first five days and
£11,127.98 for the sixth day.
14. In May 2011 a controversial provision, inserted (by section 19(2) of the UK
Borders Act 2007) into the Nationality, Immigration and Asylum Act 2002 as
section 85A, had come into force. The effect of subsections (3) and (4) had been to
disable the First-tier Tribunal from considering evidence adduced by Mr Mandalia
in the course of his appeal unless he had submitted it to the agency in support of his
application. Strictly speaking, therefore, his bank statements numbered 62 and 63
were inadmissible before the tribunal. The judge probably took the view that
reference to those statements would be impermissible only if they were to provide a
basis for allowing the appeal; and that, in briefly setting out his reasons for
dismissing it, it would be unrealistic for him not to explain that Mr Mandalia’s
possession of the requisite £5,400 throughout the first six of the 28 days had by then
become clear.
15. At the end of his reasons the judge of the First-tier Tribunal observed that, in
the light of the fresh evidence, a further, more careful, application by Mr Mandalia
for extension of his visa might well succeed. This court has received vigorous
submissions on each side about the circumstances in which, on payment of a further
fee, Mr Mandalia might have been able to make a further application. But in my
view his ability to do so, to the extent that it existed, is irrelevant to the issue raised
in the appeal.
16. Mr Mandalia took specialist advice about the possibility of an appeal to the
Upper Tribunal (Immigration and Asylum Chamber) and, with the help of the
adviser, applied to the Upper Tribunal for permission to appeal. The adviser was
aware of a document which had been issued by the agency to caseworkers on 17
June 2011 entitled “PBS Process Instruction: Evidential Flexibility” (“the process
instruction”) and which had subsequently been published on the agency’s website.
The grounds of the proposed appeal were that, in refusing Mr Mandalia’s application
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without first having first drawn his attention to his failure to demonstrate that he had
held the requisite £5,400 throughout the first six of the 28 days, the agency had
unlawfully departed from its policy set out in the process instruction. Mr Mandalia
also sought permission to appeal against the agency’s decision to remove him from
the UK on the ground that, in the light of the Upper Tribunal’s construction of the
terms, as they then were, of section 47 of the 2006 Act in Ahmadi v Secretary of
State for the Home Department (which was later to be upheld in the Court of Appeal
[2013] EWCA Civ 512, [2014] 1 WLR 401), the decision had been premature.
17. A judge of the Upper Tribunal duly granted to Mr Mandalia permission to
appeal but he did so in somewhat ambiguous terms. Two other judges of the Upper
Tribunal construed his permission as limited to the appeal against the removal
decision; and on 12 December 2012, in the light of its decision in the Ahmadi case,
the Upper Tribunal allowed Mr Mandalia’s appeal in that respect. The result was
however that the Upper Tribunal never addressed his challenge, by reference to the
process instruction, to the First-tier Tribunal’s decision to dismiss his appeal against
the refusal of his application.
18. When in the Court of Appeal Mr Mandalia sought to renew his challenge to
the refusal of his application, the Secretary of State responded to the effect that
permission to make that challenge had been refused in the Upper Tribunal and that
the Court of Appeal therefore had no jurisdiction to entertain an appeal in relation
to it. Mr Mandalia countered by submitting that, on its proper construction, the
Upper Tribunal’s grant of permission had included permission to make that
challenge; that the two judges of the Upper Tribunal who had considered otherwise
had been wrong; that the Upper Tribunal should accordingly be taken to have
dismissed that part of his appeal; and that the Court of Appeal therefore had
jurisdiction to entertain his appeal against the dismissal of it. This issue was not
resolved until the start of the substantive hearing of Mr Mandalia’s appeal in the
Court of Appeal, when it upheld his submissions in relation to it and turned to
consider the merits of his appeal.
19. It follows, however, that the Court of Appeal was handicapped by the lack of
any analysis of the effect of the process instruction on the lawfulness of the agency’s
decision by either of the specialist tribunals below. It was unfortunate not only that
the judge’s grant of permission to appeal to the Upper Tribunal was couched in
ambiguous terms but also that other judges of the Upper Tribunal misconstrued it
and so declined to address that part of Mr Mandalia’s appeal which was based on
the process instruction. But it was still more unfortunate that no reference had been
made to the process instruction before the First-tier Tribunal. Mr Mandalia could
not be expected to have been aware of it. 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
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Mr Mandalia’s appeal: see AA (Afghanistan) v Secretary of State for the Home
Department [2007] EWCA Civ 12 at para 13.
20. The Court of Appeal determined Mr Mandalia’s appeal together with two
other appeals in which the effect of the process instruction was also raised. In the
first of the other appeals the Secretary of State was the appellant and Ms Rodriguez
was the respondent. The agency had refused her application for extension of her
student visa for failure to secure points under Appendix C. By reference to the
process instruction, the Upper Tribunal had ordered that the agency’s refusal be
quashed. In the second of the other appeals Ms Patel was the appellant and the
Secretary of State was the respondent. She was appealing against the order of the
Upper Tribunal by which, in contrast, it had declined to quash the agency’s refusal
of her application for extension of her student visa for failure to secure points under
Appendix C. In all three appeals the decision of the Court of Appeal went in favour
of the Secretary of State. So it allowed her appeal in Ms Rodriguez’ case and
dismissed the appeals of Mr Mandalia and Ms Patel. There was some difference –
which Davis LJ described as no real difference – between the facts in Mr Mandalia’s
case and those in the cases of Ms Rodriguez and Ms Patel. For they had both
enclosed bank statements which did indeed cover the requisite 28 days but which
showed that, on four of those days in the case of Ms Rodriguez and on one of them
in the case of Ms Patel, their credit balances had fallen below the amount of which
they were required to demonstrate possession. The Court of Appeal accepted that
each of them would have been able to demonstrate possession of other funds which,
had the agency drawn their attention to the deficit, would have repaired it; but it held
that the agency had nevertheless been entitled to refuse their applications without
having drawn it to their attention.
The Process Instruction
21. As its full title indicated, the process instruction was addressed to the
agency’s caseworkers who were processing applications for visas by reference to
the points-based system. The reference in the title to evidential flexibility was an
indication in shorthand that the instruction was that caseworkers should show some,
albeit limited, flexibility in relation to applications from which requisite information
had been omitted and, in particular, which had not been accompanied by requisite
evidence.
22. The introduction to the process instruction was as follows:
“In response to significant feedback from the caseworking
teams, as well as from our customers, from August 2009 a
flexible process was adopted allowing PBS caseworkers to
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invite sponsors and applicants to correct minor errors or
omissions in applications both main and dependant submitted
under Tiers 1, 2, 4 and 5.
The instruction enabled caseworkers to query details or request
further information, such as a missing wage slip or bank
statement from a sequence. Three working days [were] given
to the customer to provide the requested information.
This instruction only applied to cases which would be refused
solely on the absence of a piece of evidence or information.
Where the application would fall for refusal even if the missing
evidence was submitted, a request to submit this further
information would not be made.
The introduction of this instruction resulted in a reduced refusal
rate. However, those that fell for refusal where multiple pieces
of information were missing were often successful on appeal.
Following analysis of allowed appeals and feedback from the
National Audit Office … and Chief Inspector …, the original
Evidential Flexibility instruction has been reviewed to meet the
recommendations put forward in these reports …
As such, there have been two significant changes to the original
Evidential Flexibility instruction:
1) The time given to applicants to produce additional evidence
has been increased … to seven working days; and
2) There is now no limit on the amount of information that
can be requested from the applicant. However, requests for
information should not be speculative, we must have sufficient
reason to believe that any evidence requested exists.”
23. The process instruction then identified 19 steps which the caseworker was to
take “when an application has missing evidence or there is a minor error”.
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24. In step one the caseworker was to ask himself whether there was missing
evidence. If his answer was “yes”, he was to proceed to step two.
25. In step two he was to ask himself whether the application would fall to be
refused even if the missing evidence was provided. If his answer was “no”, he was
to proceed to step three.
26. Step three was as follows:
“We will only go out for additional information in certain
circumstances which would lead to the approval of the
application.
Before we go out to the applicant we must have established that
evidence exists, or have sufficient reason to believe the
information exists.
Examples include (but are not limited to):
1) bank statements missing from a series;
2) …
3) …
4) …
The evidence listed in Annex A is not exhaustive, but provides
caseworkers with guidance as to the circumstances when
evidence can be requested.”
In Annex A it was reiterated that it might be appropriate to ask an applicant under
Tier 4 to provide “[m]issing bank statements from a series.”
27. Step four addressed the caseworker who was unsure whether the evidence
existed. He was to discuss the issue with his line manager. Here the instruction was
that “[w]here there is uncertainty as to whether evidence exists, benefit should be
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given to the applicant and the evidence should be requested”. So the question was
whether the line manager was satisfied that the missing evidence existed or had
reasonable grounds to believe that it existed. If the answer to the question was “yes”
or even if the answer was “unsure”, the caseworker was to proceed to step five,
which was to contact the applicant. The later steps are irrelevant to the appeal.
28. In that Mr Mandalia’s application was made on 7 February 2012, it is agreed
that the process instruction represented agency policy which in principle applied to
it. It should be noted, however, that, in respect of all applications made on or after 6
September 2012, the process instruction was withdrawn and the facility for a
caseworker to seek further information or evidence prior to determining an
application was instead governed by a new rule, namely rule 245AA, inserted into
the rules. The new rule, which was amended with effect from 13 December 2012
and re-amended with effect from 1 October 2013, seems to give caseworkers
substantially less flexibility than did the process instruction. But the encouragement
to contact an applicant survives if “[s]ome of the documents in a sequence have been
omitted (for example, if one bank statement from a series is missing)”.
The Legal Effect of Policy
29. In 2001, in R (Saadi) v Secretary of State for the Home Department [2001]
EWCA Civ 1512, [2002] 1 WLR 356, Lord Phillips of Worth Matravers MR, giving
the judgment of the Court of Appeal, said in para 7:
“The lawful exercise of [statutory] powers can also be
restricted, according to established principles of public law, by
government policy and the legitimate expectation to which
such a policy gives rise.”
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 (see R (WL) (Congo) v Secretary of State for the Home
Department [2010] EWCA Civ 111, [2010] 1 WLR 2168, para 58). 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, which was best articulated by Laws LJ in
R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ
1363, as follows:
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“68 … 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.”
30. Thus, in R (Lumba) v Secretary of State for the Home Department (JUSTICE
intervening) [2011] UKSC 12, [2012] 1 AC 245 (in which this court reversed the
decision of the Court of Appeal reported as R (WL) (Congo) but without doubting
the observation in para 58 for which I have cited the decision in para 29 above),
Lord Dyson said simply:
“35. The individual has a basic public law right to have his or
her case considered under whatever policy the executive sees
fit to adopt provided that the adopted policy is a lawful exercise
of the discretion conferred by the statute.”
There is no doubt that the implementation of the process instruction would have
been a lawful exercise of the power conferred on the Secretary of State by section
4(1) of the Immigration Act 1971 to give or vary leave to remain in the UK.
31. But, in his judgment in the Lumba case, Lord Dyson had articulated two
qualifications. He had said:
“21 … it is a well established principle of public law that a
policy should not be so rigid as to amount to a fetter on the
discretion of decision-makers.”
But there was ample flexibility in the process instruction to save it from amounting
to a fetter on the discretion of the caseworkers. Lord Dyson had also said:
“26 … a decision-maker must follow his published policy …
unless there are good reasons for not doing so.”
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But the Secretary of State does not argue that there were good reasons for not
following the process instruction in the case of Mr Mandalia. Her argument is
instead that, properly interpreted, the process instruction did not require the
caseworker to alert Mr Mandalia to the deficit in his evidence before refusing his
application. So the search is for the proper interpretation of the process instruction,
no more and no less. Indeed in that regard it is now clear that its interpretation is a
matter of law which the court must therefore decide for itself: R (SK (Zimbabwe)) v
Secretary of State for the Home Department (Bail for Immigration Detainees
intervening) [2011] UKSC 23, [2011] 1 WLR 1299, para 36, Lord Hope of
Craighead). Previous suggestions that the courts should adopt the Secretary of
State’s own interpretation of her immigration policies unless it is unreasonable,
made for example in Gangadeen and Jurawan v Secretary of State for the Home
Department [1998] Imm AR 106 at p 115, are therefore inaccurate.
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:
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“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
Page 16
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?
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.
