\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n – – – – – – – – – – – – – – – – – – – – –
\nNo appearance for the Appellant in Mudiyanselage
\nMr Sajid Mustafa (instructed by Solicitors\u2019 Inn) for the Appellant in Khan
\nNo appearance for the Appellant in MA (Pakistan)
\nMr Shahadoth Karim (instructed by Ineyab Solicitors) for the Appellant in Negbenebor
\nMr Darryl Balroop (instructed by Moorehouse Solicitors) for the Appellant in Igwe & Others
\nMr Edward Nicholson (instructed by Direct Access) for the Appellants in Kokab
\nMr Tom Poole (instructed by the Treasury Solicitor) for the Respondent in MA (Pakistan), Khan and Mudiyanselage
\nMr Zane Malik (instructed by the Treasury Solicitor) for the Respondent in Negbenebor and Igwe
\nMr Ben Keith (instructed by the Treasury Solicitor) for the Respondent in Kokab
\nHearing dates: 8th <\/sup>& 9th<\/sup> November 2017
\nFurther written submissions 14th<\/sup> November 2017
\n– – – – – – – – – – – – – – – – – – – – –
\nApproved Judgment<\/p>\nLord Justice<\/strong> Underhill<\/strong> :<\/strong><\/p>\nINTRODUCTION<\/u><\/strong><\/p>\n\n- These six appeals were listed, in two groups of three, on consecutive days before the same constitution of this Court because they raised issues about an area of immigration law commonly labelled \u201cevidential flexibility\u201d. The first group consisted of Mudiyanselage<\/em>, Khan<\/em> and MA (Pakistan<\/em>); and the second of Negbenebor<\/em>, Igwe<\/em> and Kokab<\/em>.\u00a0 The Secretary of State, who is the Respondent in the first five cases, instructed Mr Tom Poole in the cases listed on the first day and he gave us a most lucid and helpful overview of the field.\u00a0 She instructed Mr Zane Malik in Negbenebor<\/em> and Igwe<\/em>, and he too provided a clear and comprehensive skeleton argument.\u00a0 As for the individual Appellants, Mr Khan was represented by Mr Sajid Mustafa, Ms Negbenebor by Mr Shahadoth Karim and Ms Igwe by Mr Darryl Balroop.\u00a0 For reasons which I explain below, there was no appearance in the cases of Mudiyanselage <\/em>and MA (Pakistan)<\/em>. \u00a0In Kokab<\/em> \u2013 which, as will appear, is of a rather different character from the other cases \u2013 the Appellants were represented by Mr Edward Nicholson and the Entry Clearance Officer (\u201cthe ECO\u201d) by Mr Ben Keith.<\/li>\n
- It will be convenient if I start by considering the effect of the Rules and the guidance relevant to evidential flexibility generally, together with the case-law, before addressing the individual appeals. To some extent that exercise will determine the issues raised in at least the first five appeals.<\/li>\n<\/ol>\n
THE BACKGROUND LAW<\/u><\/strong><\/p>\nINTRODUCTORY<\/u><\/p>\n\n- The issue of evidential flexibility arises in relation to the Points-Based System (\u201cthe PBS\u201d) which governs the grant of leave to enter and leave to remain for would-be migrant workers and students. In his judgment in Mandalia v Secretary of State for the Home Department<\/em> [2015] UKSC 59, [2015] 1 WLR 4546, to the substance of which I shall return in due course, Lord Wilson gave a short introduction to the PBS in the following terms (pp. 4599-50):<\/li>\n<\/ol>\n
\u201c2. In March 2006 the Secretary of State presented to Parliament a White Paper entitled \u2018A Points-Based System: Making Migration Work for Britain\u2019 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 \u2018a more efficient, transparent and objective application process\u2019 (paragraphs 3, 25). The system was introduced into the Immigration Rules (\u2018the rules\u2019) as \u2018Part 6A: POINTS-BASED SYSTEM\u2019, which became operative in stages beginning in November 2008. Since becoming operative, the provisions of Part 6A, including the appendices to it, have been amended on numerous occasions. \u2026<\/p>\n \n- 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 \u2018General\u2019 students, broadly encompassing adults, and \u2018Child\u2019 students, broadly encompassing minors. Into Tier 5 fall temporary workers.\u201d<\/li>\n<\/ol>\n
(The passage which I have omitted at the end of para. 2 is reproduced at para. 43 below, where it is more directly apposite.)<\/p>\n \n- The basic structure of the rules with which we are concerned is as follows. Part 6A comprises a series of paragraphs all starting \u201c245\u201d but distinguished, in a rebarbative system which makes navigation far from straightforward, by a series of following letters from (currently) AAA to ZZE.\u00a0 These set out a number of general provisions together with the requirements which applicants under the various tiers must satisfy.\u00a0 Some of those requirements relate to the number of points which an applicant must qualify for under various Appendices.\u00a0 In particular Appendix A prescribes the points which applicants for each tier must score for \u201cAttributes\u201d and Appendix C prescribes the points for \u201cMaintenance (Funds)\u201d: the points available are set out in a series of tables, but the requirements of the table may be amplified in a further paragraph or paragraphs.<\/li>\n
- In order to prove that they satisfy the relevant requirements applicants are required to provide \u201cspecified documents\u201d. Typically the requirements as regards specified documents are set out in a separate paragraph of the relevant Appendix with an \u201cSD\u201d suffix, though sometimes they appear as part of the substantive provision.\u00a0 Examples appear in the individual cases which we consider below \u2013 see paras. 81 and 99 (both from paragraph 41-SD of Appendix A).\u00a0\u00a0 The provisions in question identify such matters as who the documents should emanate from, the information they should contain, the dates that such information should cover and their format (e.g. that they should be on the formal paper of the issuing institution).<\/li>\n
- Paragraph 39B of the Immigration Rules contains some general provisions about specified documents. It reads (so far as material):<\/li>\n<\/ol>\n
\u201c(a) Where these Rules state that specified documents must be provided, that means documents specified in these Rules as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence.<\/p>\n (b) Where these Rules specify documents that are to be provided, those documents are considered to be specified documents, whether or not they are named as such, and as such are subject to the requirements in (c) to (f) below.<\/p>\n (c) If the Entry Clearance Officer or Secretary of State has reasonable cause to doubt the genuineness of any document submitted by an applicant which is, or which purports to be, a specified document under these Rules, and having taken reasonable steps to verify the document is unable to verify that it is genuine, the document will be discounted for the purposes of this application.<\/p>\n (d) Specified documents must be originals, not copies, except where stated otherwise.<\/p>\n (e)-(f) \u2026\u201d<\/p>\n \n- The requirements of Part 6A, and in particular the requirements about specified documents, are highly prescriptive, and it is easy for applicants to make mistakes in seeking to comply with them. In order to mitigate the potential harshness of that state of affairs the Secretary of State has since 2009 issued guidance for case-workers about the circumstances in which they may show a degree of flexibility in dealing with non-compliant applications.\u00a0 This was initially in the form of a \u201cprocess instruction\u201d; but since March 2013 it has taken the form of published Guidance, entitled \u201cPoints-based System \u2013 Evidential Flexibility\u201d (\u201cthe Guidance\u201d).\u00a0 I will refer to the provisions of the process instruction and the Guidance as they stood from time to time as \u201cthe evidential flexibility policy\u201d (\u201cEFP\u201d).\u00a0 The Secretary of State in due course decided that the issue of evidential flexibility should also be covered in the Rules themselves, and with effect from 6 September 2012 a paragraph 245AA was inserted into Part 6A, headed \u201cDocuments not Submitted with Applications\u201d.\u00a0 From that point on paragraph 245AA and the EFP existed in parallel; but, as will appear, their provisions were not always consistent with one another.<\/li>\n
- The terms of both the EFP and paragraph 245AA have been revised on several occasions. It is of course of cardinal importance in any immigration case to identify the version of any applicable rule or policy current at the time of the material decision.[1]\u00a0 The versions of the Guidance and of paragraph 245AA applicable are not the same in all the cases before us, and in any event it is necessary in order to understand the case-law to appreciate what versions were in force at the relevant dates.\u00a0 I should accordingly trace the relevant histories in some detail.<\/li>\n<\/ol>\n
THE PROCESS INSTRUCTION<\/u><\/p>\n\n- The process instruction relating to evidential flexibility as originally issued in 2009 was significantly different in form and content to the subsequent guidance, and it is unnecessary to consider it here. I can start the story with the revised version issued in June 2011, which was the version considered in the Supreme Court\u2019s decision in Mandalia<\/em> to which I have already referred.\u00a0 At paras. 21-23 of his judgment Lord Wilson introduced it as follows:<\/li>\n<\/ol>\n
\u201c21.\u00a0 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.<\/p>\n \n- The introduction to the process instruction was as follows:<\/li>\n<\/ol>\n
\u2018In 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 invite sponsors and applicants to correct minor errors or omissions in applications both main and dependant submitted under Tiers 1, 2, 4 and 5.<\/p>\n 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.<\/p>\n 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.<\/p>\n 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.<\/p>\n Following analysis of allowed appeals and feedback from the National Audit Office \u2026 and Chief Inspector \u2026, the original Evidential Flexibility instruction has been reviewed to meet the recommendations put forward in these reports \u2026<\/p>\n As such, there have been two significant changes to the original Evidential Flexibility instruction:<\/p>\n 1) \u00a0\u00a0\u00a0\u00a0 The time given to applicants to produce additional evidence has been\u00a0increased \u2026 to seven working days<\/strong>; and<\/p>\n2) \u00a0\u00a0\u00a0\u00a0 There is\u00a0now no limit on the amount of information that can be requested from the applicant<\/strong>. However, requests for information should not be speculative, we must have sufficient reason to believe that any evidence requested exists [emphases in original].\u2019<\/p>\n\n- The process instruction then identified 19 steps which the caseworker was to take \u2018when an application has missing evidence or there is a minor error\u2019.\u201d<\/li>\n
- Lord Wilson went on to summarise some of those steps. I need refer only to step 3, which begins:<\/li>\n<\/ol>\n
\u201cWe will only go out for additional information in certain circumstances which would lead to the approval of the application.<\/p>\n Before we go out to the applicant we must have established that evidence exists, or have sufficient reason to believe the information exists.<\/p>\n Examples include (but are not limited to):<\/p>\n \u201c(1)\u00a0\u00a0 bank statements missing from a series;<\/p>\n (2)\u00a0\u00a0\u00a0\u00a0 evidence that specific qualifications have been provided previously (either from reviewing CID, or a legacy application, such as globe);<\/p>\n (3)\u00a0\u00a0\u00a0\u00a0 evidence detailed on a CAS\/COS is missing; and<\/p>\n (4)\u00a0\u00a0\u00a0\u00a0 named deposits on bank statements from an employer, but no wage slips provided.\u201d<\/p>\n \n- The scope of the first of the examples under step 3 \u2013 \u201cbank statements missing from a series\u201d \u2013 was the issue in Mandalia<\/em> I need not explain the others, which I have reproduced only because they are part of the archaeology of the EFP.\u00a0 Step 3 also refers to further examples given in an \u201cAnnex A\u201d, though it is again explicitly stated that these are \u201cnot exhaustive\u201d.\u00a0 These include \u201cbank statements not in the desired format\u201d and \u201cevidence that is copied instead of an original\u201d, which, as will be seen, came to feature in paragraph 245AA; but a large number of other types of missing documents are also listed.<\/li>\n<\/ol>\n
PARAGRAPH 245AA<\/u><\/p>\n Original Version<\/u><\/p>\n\n- Paragraph 245AA in its original version, which was effective from 6 September 2012, read:<\/li>\n<\/ol>\n
\u201c(a) \u00a0Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where subparagraph (b) applies.<\/p>\n (b) \u00a0\u00a0\u00a0\u00a0The subparagraph applies if the applicant has submitted:<\/p>\n (i)\u00a0\u00a0\u00a0\u00a0\u00a0 A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);<\/p>\n (ii)\u00a0\u00a0\u00a0\u00a0 A document in the wrong format; or<\/p>\n (iii) \u00a0\u00a0 A document that is a copy and not an original document,<\/p>\n the UK Border Agency will contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.<\/p>\n (c) \u00a0\u00a0The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.\u201d<\/p>\n (Something has gone wrong with the language of sub-paragraph (b): some such words as \u201cin such a case\u201d are needed before \u201cthe UK Border Agency will apply \u2026\u201d.\u00a0 But the sense is clear enough.)<\/p>\n \n- It is convenient to make one point here about the drafting of sub-paragraph (c) (which remains in substantially the same terms through the subsequent changes). Mr Poole accepted that the sub-paragraph contains two quite distinct provisions, which are in truth unrelated:<\/li>\n<\/ol>\n
(1)\u00a0\u00a0\u00a0\u00a0 The first half, down to the words \u201c\u2026 is missing\u201d, simply reinforces what is already clear from the introductory words of sub-paragraph (b), namely that paragraph 245AA is concerned only with cases where what purports to be a specified document has been submitted but it is defective in some way, not with cases where the required document has not been submitted at all.\u00a0 This distinction is not in fact as straightforward as it may seem: see paras. 57-59 below.<\/p>\n (2)\u00a0\u00a0\u00a0\u00a0 The second half makes the important, albeit perhaps obvious, point that missing documents\/information will not be sought at all if the application falls for refusal on other grounds.<\/p>\n \n- It will be seen that the conditions for the operation of evidential flexibility provided for by the rule are more restrictive than those under the process instruction considered in Mandalia<\/em>, in as much as under the rule missing documents will only be sought if they fall under the particular categories specified in sub-paragraph (b), whereas under the process instruction there were no limits on the kinds of further information that could be sought, provided only that there was reason to believe it existed and that it could affect the decision.<\/li>\n<\/ol>\n
Version as amended on 13.12.12<\/u><\/p>\n\n- Paragraph 245AA was amended with effect from 13 December 2012. It is this version that was in effect in the case of Mudiyanselage<\/em>.\u00a0 It is convenient to set out the whole paragraph as amended.\u00a0 It reads:<\/li>\n<\/ol>\n
\u201c(a)\u00a0 Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).<\/p>\n (b)\u00a0\u00a0\u00a0\u00a0 If the applicant has submitted:<\/p>\n (i)\u00a0\u00a0\u00a0\u00a0\u00a0 A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);<\/p>\n (ii)\u00a0\u00a0\u00a0\u00a0 A document in the wrong format; or<\/p>\n (iii) \u00a0\u00a0 A document that is a copy and not an original document,<\/p>\n the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.<\/p>\n (c)\u00a0\u00a0 The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.<\/p>\n (d) \u00a0\u00a0\u00a0\u00a0If the applicant has submitted a specified document:<\/p>\n (i) \u00a0\u00a0\u00a0\u00a0 in the wrong format, or<\/p>\n (ii) \u00a0\u00a0\u00a0 that is a copy and not an original document,<\/p>\n the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).\u201d<\/p>\n \n- The main difference between that version and its predecessor are as follows.<\/li>\n
- First, in sub-paragraph (b) the provision that UKBA \u201cwill\u201d in the specified circumstances contact the applicant has been changed to \u201cmay\u201d. Formally, that converts a rule into a discretion.\u00a0 Mr Poole acknowledged that that discretion would on general principles have to be exercised consistently and in accordance with the underlying policy, which may mean that in many cases the discretion will in practice be an obligation.\u00a0 But the distinction remains important.\u00a0 A consistent element in the EFP is that caseworkers should only ask for further information in a case falling under paragraph 245AA (b) where there is in fact reason to believe that the missing document or information exists.\u00a0 Mr Karim pointed out that paragraph 245AA contains no such provision.\u00a0 That is so, but the fact that the exercise of the power is discretionary means that it is entirely proper for the Secretary of State to take such an approach as a matter of policy.<\/li>\n
- Secondly, the new sub-paragraph (d) gives UKBA a discretion, exceptionally and in limited circumstances, to dispense with seeking further information in \u201cwrong format\u201d or \u201ccopy instead of original\u201d cases where it is satisfied that the specified documents are genuine. The concept of \u201cevidential flexibility\u201d is thus extended from the original idea simply of giving applicants the chance to remedy mistakes and to include a discretion to caseworkers simply to overlook them (in the circumstances defined).\u00a0 The purpose is evidently to relieve UKBA of the need to waste time and effort going through an unnecessary process where it is clear what the outcome will be.\u00a0 It does not<\/u> extend the classes of cases in which evidential flexibility applies<\/li>\n
- Thirdly, and less significantly:<\/li>\n<\/ol>\n
(a)\u00a0\u00a0\u00a0\u00a0 There are some minor verbal changes to sub-paragraphs (a) and (b), which appear to be intended to correct the verbal clumsiness which I have referred to at para. 12 above<\/p>\n (b)\u00a0\u00a0\u00a0\u00a0 An example of a document being \u201cin the wrong format\u201d is added to sub-paragraph (b) (ii).<\/p>\n \n- None of those changes undermines the point which I make at para. 14 above \u2013 that is, that the rule in paragraph 245AA is more restrictive than the EFP in the form that it took at the time relevant to Mandalia<\/em>.<\/li>\n<\/ol>\n
Version as amended on 1 October 2013<\/u><\/p>\n\n- Paragraph 245AA was amended again with effect from 1 August 2013 and further amended with effect from 1 October 2013.[2] It is the October 2013 version that was in effect in the case of all the appeals save Mudiyanselage<\/em>, and it remains in effect currently.\u00a0 The paragraph now reads<\/li>\n<\/ol>\n
\u201c(a) \u00a0\u00a0Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).<\/p>\n (b) \u00a0\u00a0If the applicant has submitted specified documents in which:<\/p>\n (i) \u00a0\u00a0\u00a0\u00a0 Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);<\/p>\n (ii) \u00a0\u00a0\u00a0 A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or<\/p>\n (iii) \u00a0\u00a0 A document is a copy and not an original document; or<\/p>\n (iv)\u00a0\u00a0\u00a0 A document does not contain all of the specified information;<\/p>\n the Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received at the address specified in the request within 7 working days of the date of the request.<\/p>\n (c) Documents will not be requested where a specified document has not been submitted (for example an English language certificate is missing), or where the Entry Clearance Officer, Immigration Officer or the Secretary of State does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.<\/p>\n (d) \u00a0\u00a0\u00a0\u00a0If the applicant has submitted a specified document:<\/p>\n (i) \u00a0\u00a0\u00a0\u00a0 in the wrong format; or<\/p>\n (ii) \u00a0\u00a0\u00a0 which is a copy and not an original document; or<\/p>\n (iii) \u00a0\u00a0 which does not contain all of the specified information, but the missing information is verifiable from:<\/p>\n (1) \u00a0\u00a0\u00a0 other documents submitted with the application,<\/p>\n (2) \u00a0\u00a0\u00a0 the website of the organisation which issued the document, or<\/p>\n (3) \u00a0\u00a0\u00a0 the website of the appropriate regulatory body;<\/p>\n the application may be granted exceptionally, providing the Entry Clearance Officer, Immigration Officer or the Secretary of State is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The Entry Clearance Officer, Immigration Officer or the Secretary of State reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).\u201d<\/p>\n \n- The only substantial change between that and the December 2012 version is the addition of a head (iv) under sub-paragraph (b), covering cases where a document \u201cdoes not contain all of the specified information\u201d; but that change required also the elaboration of the provisions of sub-paragraph (d).<\/li>\n<\/ol>\n
THE GUIDANCE<\/u><\/p>\n Version 1<\/u><\/p>\n\n- It appears that the process instruction was withdrawn as regards all applications made after 6 September 2012, being the date that paragraph 245AA came into force (see para. 28 of the judgment of Lord Wilson in Mandalia<\/em> (p. 4555 (F-G)); and there seems to have been a period of some months during which no separate articulation of the evidential flexibility policy was in place. But in due course the Secretary of State issued the first version of the Guidance, valid from 12 March 2013.\u00a0 It runs to thirteen pages.\u00a0 We need only be concerned with two sections.\u00a0 The first, which is at pp. 2-3, is headed \u201cAbout this Guidance\u201d, and the second, which is at p. 5, is headed \u201cObtaining Additional Information\u201d.\u00a0 I take them in turn.<\/li>\n
- The \u201cAbout this Guidance\u201d section is evidently by way of general introduction. It begins:<\/li>\n<\/ol>\n
\u201cThis guidance tells you about the use of evidential flexibility when an application has missing evidence or there is a minor error on an application.<\/p>\n This guidance pulls together cross cutting guidance which previously existed in separate products, and amalgamates relevant information from other operational instructions.<\/p>\n Under the evidential flexibility process, if there are minor errors or omissions on a valid application but there is enough evidence to show the application would otherwise be granted, you may contact the migrant, sponsor or representative as appropriate for clarification or to request missing documents and\/or information.\u201d<\/p>\n Some purely administrative bullet points follow.\u00a0 There is then a passage referring to the change effected by the introduction of sub-paragraph (d) of paragraph 245AA (b) (see para. 18 above).<\/p>\n \n- The \u201cObtaining Additional Information\u201d section contains specific guidance as to the circumstances in which additional information should be sought. It reads (again, so far as material):<\/li>\n<\/ol>\n
\u201cThis page tells you about requesting additional information if there is missing evidence, or evidence that is not in an acceptable format.<\/p>\n You must only request additional information in certain circumstances which would lead to the approval of the application. Before requesting additional evidence you must have sufficient reason to believe the information exists.<\/p>\n Examples include (but are not limited to):<\/p>\n (1)\u00a0\u00a0\u00a0\u00a0 bank statements missing from a series;<\/p>\n (2)\u00a0\u00a0\u00a0\u00a0 evidence that specific qualifications have been provided previously (either from reviewing CID, or a legacy application, such as globe);<\/p>\n (3)\u00a0\u00a0\u00a0\u00a0 evidence detailed on a CAS\/COS is missing; and<\/p>\n (4)\u00a0\u00a0\u00a0\u00a0 named deposits on bank statements from an employer, but no wage slips provided.\u201d<\/p>\n For more information see related link: Evidential flexibility – documents which it may be appropriate to request for each tier.<\/p>\n If you are not sure if the evidence exists, you must discuss the issue with your higher executive officer (HEO), or senior caseworker (SCW). If there is still uncertainty that evidence exists, benefit is given to the applicant and you must request the evidence.<\/p>\n You must refuse the application if the application falls for refusal even if the missing information was provided, or minor error was corrected.<\/p>\n \u2026\u201d<\/p>\n The link to which reference is made is to a document in substantially identical terms to \u201cAnnex A\u201d in the process instruction.<\/p>\n \n- It will be seen that that guidance essentially reflects the terms of the process instruction, in that it envisages caseworkers having a general power \u2013 if not indeed an obligation \u2013 to request additional information in cases where there is \u201cmissing evidence\u201d: although examples are given of the kinds of missing information that should trigger such a request, it is made clear that that those examples are not exhaustive. There accordingly continued to be a mismatch between the terms of the EFP and those of paragraph 245AA.<\/li>\n<\/ol>\n
Versions 2-3<\/u><\/p>\n\n- The Guidance was amended with effect from 20 May 2013. The amended version \u2013 version 2 \u2013 was in force at the time of the decision in Mudiyanselage<\/em>.\u00a0\u00a0 The introductory section was unaltered from version 1, but the \u201cObtaining Additional Information\u201d section now read:<\/li>\n<\/ol>\n
\u201cThis page tells you about requesting additional information if there is missing evidence, or evidence that is not in an acceptable format.<\/p>\n You must only request additional information in certain circumstances which would lead to the approval of the application.<\/p>\n Before requesting additional evidence you must have sufficient reason to believe the information exists. This is limited to cases where:<\/p>\n \n- documents (for example bank statements) are missing from a series<\/li>\n
- evidence detailed on a confirmation of acceptance for studies (CAS) or certificate of sponsorship (CoS) is missing<\/li>\n
- photocopies of the required documentation have been received, or<\/li>\n
- a document is in the wrong format.<\/li>\n<\/ul>\n
For more information see related link: Evidential flexibility – documents which it may be appropriate for the caseworker to request for each tier.<\/p>\n If you are not sure if the evidence exists, you must discuss the issue with your higher executive officer (HEO), or senior caseworker (SCW).<\/p>\n You must refuse the application if the application falls for refusal even if the missing information was provided, or minor error was corrected. All grounds must be included, including any attributes where there was any missing evidence or minor errors.<\/p>\n Additionally, if there are any reasonable doubts over the information currently held that would cause you to seek further verification, you must do this before you request any further evidence.\u201d<\/p>\n \n- This change brings the EFP much closer to the terms of paragraph 245AA, inasmuch as three of the four bullets broadly correspond, though using different language, to heads (i)-(iii) of sub-paragraph (b), and \u2013 importantly \u2013 the need to seek further information is described as \u201climited to\u201d such cases. However, complete consistency is not achieved.\u00a0 This is not only because the bullet relating to CAS\/COS documentation is not paralleled in paragraph 245AA, but also because of the continuing reference to the \u201crelated link\u201d.\u00a0 We were not taken to the linked document, but I assume that it was in the same terms as the original \u201cAnnex A\u201d (see paras. 11 and 25 above), in which case there would be a more substantial discrepancy because the types of information listed there go beyond those in paragraph 245AA.<\/li>\n
- We were not taken to version 3, which took effect from 12 September 2013 but we were told that it is substantially identical to version 2 so far as concerns the issues before us.<\/li>\n<\/ol>\n
Versions 4-7<\/u><\/p>\n\n- Version 4 of the Guidance, which took effect from 1 October 2013, introduces significant changes. As with the previous versions, it starts, at pp. 2-3, with an introductory \u201cAbout this Guidance\u201d section, but the specific guidance about \u201cObtaining Additional Information\u201d is split into two parts.\u00a0 The first, at p. 7, is concerned with applications for entry clearance and the second, at p. 8, with applications for leave to remain.\u00a0 It is the latter which is relevant for our purposes.<\/li>\n
- The introductory section begins:<\/li>\n<\/ol>\n
\u201cThis guidance tells you about the use of evidential flexibility when an application has missing evidence or there is a minor error on an application.<\/p>\n This guidance pulls together cross cutting guidance which previously existed in separate products, and amalgamates relevant information from other operational instructions.\u00a0 It supersedes all previous instructions and guidance on evidential flexibility.<\/p>\n Under the evidential flexibility process, if there are minor errors or omissions on specified documents submitted with a valid application but there is enough evidence to show the application would otherwise be granted, you may contact the migrant, sponsor or representative as appropriate for clarification or to request missing documents and\/or information.\u201d<\/p>\n That is substantially similar, though not quite identical, to the equivalent passage in previous versions.\u00a0 Two passages follow, summarising the effect of sub-paragraph (d) of paragraph 245AA, first as introduced in December 2012 and then as revised in October 2013: nothing turns on these.<\/p>\n \n- As for the \u201cObtaining Additional Information\u201d section, this reads:<\/li>\n<\/ol>\n
\u201cThis page tells you about requesting additional information if there is missing evidence, or evidence that is not in an acceptable format.<\/p>\n You must only request additional information in certain circumstances that would lead to the application being approved.<\/p>\n Before requesting additional evidence you must have sufficient reason to believe the information exists. This is limited to cases where:<\/p>\n \n- documents (for example bank statements) are missing from a series<\/li>\n
- photocopies of the required documentation have been received, or<\/li>\n
- a document is in the wrong format<\/li>\n
- \u2018wrong format\u2019 covers documents which contain all of the substantive information required by the Immigration Rules but aren\u2019t laid out in the way described in the rules. For example, where a specified document should be submitted on letterheaded paper.<\/li>\n<\/ul>\n
If you are not sure if the evidence exists, you must discuss the issue with your higher executive officer (HEO), or senior caseworker (SCW).<\/p>\n You must refuse the application if it would fall for refusal even if the missing information was provided, or if a minor error was corrected. You must not request any missing information if it cannot change the decision on the case.<\/p>\n You must include all grounds of refusal in the decision letter, including any attributes where there was evidence missing or minor errors, noting that you have not requested missing evidence which is covered by the list above, as the case would fall for refusal on other grounds.\u201d<\/p>\n \n- It will be seen that the terms of the \u201cObtaining Additional Information\u201d section are in this version no wider than those of paragraph 245AA, completing (following the start made in version 2) the closing of the gap which had existed in version 1. The circumstances in which additional information is to be sought are described as \u201climited to\u201d the three bullets, and there is no longer any additional bullet referring to CAS\/COS cases, nor any reference to the link.\u00a0 It is true that there remains one discrepancy, in as much as the Guidance makes no reference to the situation covered by head (iv) under paragraph 245AA (ii) \u2013 \u201cdocument not containing all the specified information\u201d.\u00a0 Mr Balroop placed some reliance on that as showing that the new version of the Guidance remained out of step with the rule.\u00a0 But the discrepancy is not one which favours applicants: on the contrary, the effect is that the policy is, on its face, more restrictive than the rule (though that has no effect in practice, since applicants would be entitled to rely on the terms of the rule).\u00a0 In fact, we were told by Mr Poole, which seems entirely plausible, that the discrepancy was an oversight; and it was eventually corrected in version 8.<\/li>\n
- The version current at the time of all the live appeals before us except Mudiyanselage<\/em> is version 7, which came into effect on 12 August 2014. \u00a0It is for our purposes in identical terms to version 4.\u00a0 We were not taken to the intervening versions \u2013 version 5, effective from 7 November 2013, and version 6, effective from 28 March 2014 \u2013 but we were told (as one would in any event assume) that they too were in the same terms so far as material.<\/li>\n<\/ol>\n
Version 8<\/u><\/p>\n\n- Although it was not in force at the time with which we are concerned, we were shown version 8 of the Guidance, which came into effect on 24 November 2016 and remains in force currently. It is very differently structured from versions 1-7, and I need not attempt any comprehensive summary.\u00a0 I should, however, note three points about it:<\/li>\n<\/ol>\n
(1)\u00a0\u00a0\u00a0\u00a0 As noted above, the omission to refer to head (iv) under paragraph 245AA (b) is corrected (see p. 4).<\/p>\n (2)\u00a0\u00a0\u00a0\u00a0 It contains a section which is plainly intended to remove in future cases the basis of the reasoning of the Supreme Court in Mandalia <\/em>about the meaning of a \u201cseries\u201d of documents (see p. 6).<\/p>\n(3)\u00a0\u00a0\u00a0\u00a0 It also contains, at pp. 14-17, a section headed \u201cLitigation and Evidential Flexibility\u201d.\u00a0 This sets out the line to take in relation to various possible challenges to decisions not to exercise evidential flexibility, including challenges based on the decisions in Mandalia<\/em> and SH (Pakistan)<\/em>: I refer further to this section at para. 55 below.<\/p>\nTHE AUTHORITIES<\/u><\/p>\n Alam<\/u><\/em><\/p>\n\n- The decision of this Court in Alam v Secretary of State for the Home Department <\/em>[2012] EWCA Civ 960 was concerned with the effect of the orders bringing into effect section 85A of the Nationality Immigration and Asylum Act 2002 in PBS cases. The Court confirmed that the effect of the legislation was that appellants in such cases could not rely in the FTT on evidence required by Part 6A of the Rules which they had failed to supply in their original applications.<\/li>\n
- The issue of evidential flexibility did not arise in Alam<\/em>, but it was necessary for the Court to consider the policy behind the PBS, and two passages in the judgment of Sullivan LJ (with whom Maurice Kay and Moore-Bick LJJ agreed) have been relied on in the subsequent case-law. At para. 35 he said:<\/li>\n<\/ol>\n
\u201c[T]he Immigration Rules, the Policy Guidance, and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. \u2026 Mr. Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion.\u201d<\/p>\n And at para. 45 he said:<\/p>\n \u201cI endorse the view expressed by the Upper Tribunal in\u00a0Shahzad<\/em>\u00a0[[2012] UKUT 81 (IAC)] (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in \u2018hard\u2019 decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.\u201d<\/p>\n\n- The case subsequently went to the Supreme Court \u2013 [2013] UKSC 72, [2014] AC 651 \u2013 but on a different issue, and the judgments contain nothing material for our purposes.<\/li>\n<\/ol>\n
Rodriguez\/Mandalia<\/u><\/em><\/p>\n\n- In Secretary of State for the Home Department v Rodriguez<\/em> [2014] EWCA Civ 2 this Court considered three appeals in cases involving evidential flexibility: the other two are Mandalia<\/em> and Patel<\/em>. In each case an applicant under the PBS had made an application in respect of which the relevant rule required that they provide bank statements showing a minimum credit balance over a 28-day period.\u00a0 The applications failed to comply with that requirement: in the cases of Ms Rodriguez and Ms Patel the balance shown fell below the requisite minimum for short parts of the period, and in the case of Mr Mandalia the statements only covered 22 days.\u00a0 Their case was that they should have been given the opportunity to provide evidence to correct those errors, either by the application of the evidential flexibility policy appearing in the process instruction or as a matter of fairness in the light of correspondence from the Home Office which arguably offered them such an opportunity.<\/li>\n
- This Court rejected that case. Davis LJ, with whom Pitchford LJ and Sir Stanley Burnton agreed, held that none of the errors fell within the terms of the EFP, because there was in none of the cases sufficient reason to believe that evidence to correct the deficiencies existed.\u00a0 It also rejected the case based on the Home Office\u2019s letters.\u00a0 At para. 109 Davis LJ referred to submissions to the effect that it was harsh that applicants under the PBS should be given no opportunity to correct trivial errors of this kind: it was pointed out that \u201cthe forms are complex and the requirements most rigorous, \u2026 most applicants are not versed in the law and do not always have ready access to specialist legal advice [and] they usually do not have English as their first language\u201d.\u00a0 He continued:<\/li>\n<\/ol>\n
\u201cI sympathise with those submissions \u2013 just as Sullivan LJ did in\u00a0Alam <\/em>[Davis LJ had earlier quoted the passages from Sullivan LJ\u2019s judgment which I have set out above].\u00a0 But those circumstances cannot dictate the outcome. \u2026 [Counsel for Ms Patel] was not able to say that the shortfall was de minimis; but she did say that it was but a relatively minor shortfall over a relatively short period. However the Immigration Rules are specific in this regard. And to the extent that Miss Shaw seemed to come close to invoking a \u2018near miss\u2019 approach then that is not open to her.\u201d<\/p>\nHe went on to cite the well-known \u201cnear-miss\u201d authorities.<\/p>\n \n- Mr Mandalia, though not Ms Rodriguez or Ms Patel, appealed to the Supreme Court. His appeal was allowed: see [2015] UKSC 29, [2015] 1 WLR 4546.\u00a0 It is important to appreciate that that was on very specific grounds based on the terms of the process instruction.\u00a0 That is made clear at para. 31 of the judgment of Lord Wilson (p. 4556H): \u201cthe search is for the proper interpretation of the process instruction, no more and no less\u201d.\u00a0 He held that on the material submitted with the application it was apparent that there were \u201cbank statements missing from a series\u201d within the terms of step 3 of the process instruction (see para. 33).\u00a0 But he also held that even if that had not been the case the instruction said in terms that that was only an example and that there was \u201cno limit\u201d on the information that could be requested if, as was the case on the facts, there was reason to believe that it existed (paras. 34-35).\u00a0 The narrower reasoning in Mandalia<\/em> would still apply in a similar case, since the provision about bank statements in a series continues to be reproduced in the current version of paragraph 245AA \u2013 subject to the effect of the passage in version 8 of the Guidance referred to at para. 35 (2) above.\u00a0 But the broader reasoning would not, since the language on which Lord Wilson relied disappeared from the Guidance after version 1.<\/li>\n
- Lord Wilson noted, at para. 28 of his judgment (p. 4555 F-G), that paragraph 245AA had come into force since the date with which the Court was concerned, and that seemed \u201cto give caseworkers substantially less flexibility than did the process instruction\u201d.<\/li>\n
- More generally, the decision of the Supreme Court in Mandalia<\/em> does not call into question the general approach to the requirements of the PBS apparent from Alam<\/em> and Rodriguez<\/em>. Indeed, in the introductory section of his judgment Lord Wilson made very similar observations to those of Sullivan and Davis LJJ.\u00a0 He said, at para. 2 (p. 4549 F-H):<\/li>\n<\/ol>\n
\u201cIn\u00a0Pokhriyal v Secretary of State for the Home Department<\/em>\u00a0[2013] EWCA Civ 1568, [2014] INLR 291, \u00a0Jackson LJ observed at para 4 that [the provisions of Part 6A] had \u2018now achieved a degree of complexity which even the Byzantine emperors would have envied\u2019. 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 \u2013 I speak for myself \u2013 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.\u201d<\/p>\nEK (Ivory Coast)<\/u><\/em><\/p>\n\n- In EK (Ivory Coast)<\/em> v Secretary of State for the Home Department<\/em> [2014] EWCA Civ 1517 the appellant submitted \u201cConfirmation of Acceptance for Studies\u201d (\u201cCAS\u201d) letter in support of an application for leave to remain as a student under the PBS. The CAS was, unbeknownst to her, mistakenly withdrawn by the issuing college following her application but before the Secretary of State made her decision; and the application was accordingly refused.\u00a0 It was her case that the common law duty of fairness required the Secretary of State to notify her of what had occurred and give her the opportunity to have the CAS re-issued.\u00a0 This Court, while acknowledging that the situation in which the appellant had been placed was unfair, by a majority (Sales and Briggs LJJ, Floyd LJ dissenting) rejected that submission.<\/li>\n
- As in Alam<\/em>, the case did not directly involve para. 245AA or the EFP, but the reasoning of the majority reiterates the importance to the operation of the PBS of applying hard-edged rules. At para. 28 of his judgment Sales LJ said:<\/li>\n<\/ol>\n
\u201cThe PBS is intended to simplify the procedure for applying for leave to enter or remain in the United Kingdom in certain classes of case, such as economic migrants and students. This is to enable the Secretary of State to process high volumes of applications in a fair and reasonably expeditious manner, according to clear objective criteria. This is in the interests of all applicants. It also assists applicants to know what evidence they have to submit in support of an application.\u201d<\/p>\n He went on, at para. 29, to refer to the two passages from the judgment of Sullivan J in Alam<\/em> quoted above and, at para. 30, to their endorsement by Davis LJ in Rodriguez<\/em>.\u00a0 He emphasises the importance of the PBS being \u201cclear and predictable\u201d (para. 31) and \u201cstraightforward and reasonably automatic\u201d in its operation (para. 32).\u00a0 He describes it at para. 36 as \u201cintended to minimise the need for making sensitive and difficult evaluative judgments\u201d.\u00a0 He distinguishes the well-known cases of Thakur<\/em> [2011] 151 (IAC), Patel<\/em> [2011] UKUT 211 (IAC), and Naved <\/em>[2012] UKUT 14 (IAC).\u00a0 Likewise, Briggs LJ refers, at para. 59 of his judgment, to \u201cthe simplicity, predictability and relative speed of the \u2026 process\u201d being in accordance with \u201cthe thrust of the PBS regime as laid down by the Immigration Rules\u201d.<\/p>\nSH (Pakistan)<\/u><\/em><\/p>\n\n- In SH (Pakistan) v Secretary of State for the Home Department<\/em> [2016] EWCA Civ 426 the appellant had applied for leave to remain under the PBS. One of the requirements was that he should demonstrate his proficiency in English.\u00a0 That could be done in various ways, including the supply of a certificate from an institution which had awarded him a degree for a course taught in English.\u00a0 He had been studying at an institution called the British Institute of Commerce (\u201cBIC\u201d), but the degree for the course was awarded by Coventry University.\u00a0 In support of his application he supplied a document from BIC confirming the award of his degree, but he did not provide a certificate from the University itself.\u00a0 It was his case that he should have been given the opportunity to supply the correct document, which he could readily have done if asked.\u00a0 He contended (a) that the case fell under head (ii) of sub-paragraph (b) of paragraph 245AA \u2013 \u201cdocument \u2026 in the wrong format\u201d; (b) that, even if it did not, the EFP supplemented paragraph 245AA and required a more generous approach; and (c) that, irrespective of either the Rules or the EFP he should have been accorded such an opportunity as a matter of common law fairness.<\/li>\n
- This Court rejected element (a) in the appellant\u2019s case. Elias LJ, with whose judgment Vos LJ agreed, said at para. 14:<\/li>\n<\/ol>\n
\u201cThis was not a document in the wrong format, it was the wrong document. It was from the wrong institution and it failed to provide confirmation of the language proficiency from the institution charged with verifying that function. \u2026 In my judgment a document is in the wrong format in circumstances where the material information was provided but not in the appropriate form. For example, the exception might well apply if Coventry had provided the information but not on its official notepaper, but that is not this case.\u201d<\/p>\n \n- However it accepted element (b) and allowed the appeal. The version of the Guidance in force at the time of the impugned decision (April 2013) was version 1[3].\u00a0 Elias LJ observed at para. 21 of his judgment that the terms of the Guidance were \u201cmuch wider\u201d than those of paragraph 245AA.\u00a0 He referred both to the fact the introductory section at p. 2 referred generally to the application of evidential flexibility \u201cwhen an application has missing evidence or there is a minor error\u201d; but he also pointed out, at para. 23, that \u201cthe exceptions\u201d \u2013 that is, the specific \u201cObtaining Additional Information\u201d provisions at p. 5 \u2013 were also much broader.\u00a0 That being so, he did not believe that the Guidance could be treated simply as a gloss on paragraph 245AA and constrained by its terms: it was a free-standing policy on which the appellant was entitled to rely.\u00a0 On that basis, he should have been given the opportunity to provide the correct certificate, since there was every reason to believe that it existed.\u00a0 Having reached that point, Elias LJ did not consider it necessary to address the argument based on common law fairness.\u00a0 I should add that he emphasised, at para. 27, that the Court was only concerned with the Guidance as it stood in April 2013 and not with the later versions which it was aware existed.<\/li>\n
- Although Beatson LJ agreed with Elias LJ\u2019s reasoning on the effect of the Guidance, he delivered a separate judgment making some observations about the common law fairness argument. At para. 29 of his judgment he referred to EK (Ivory Coast)<\/em> as having established that the context of the PBS informs the way in which the general public law duty of fairness operates because \u201cgiven the numbers of applications in this context by student migrants the Secretary of State is entitled to achieve such certainty as is possible by a system which enables her to process high volumes of applications in a fair and reasonably expeditious manner according to objective criteria\u201d.\u00a0 He continues:<\/li>\n<\/ol>\n
\u201c30.\u00a0 Mr Poole submitted that in cases where the problem that arose was not due to the fault of the Secretary of State and there was compliance with the relevant rules and policies, there was no room for invoking the common law principle of fairness because of the inroads it would make into the efficient operation of the points-based system. Given that a Secretary of State may act unfairly (see the authorities I have cited) notwithstanding her compliance with the Rule and the terms of the majority judgments in\u00a0EK (Ivory Coast)<\/em>, that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State’s conduct.<\/p>\n\n- However, it is not necessary to consider this further in this case because the position here does not depend just on the Rules. After the promulgation of the relevant Rule the Secretary of State issued an evidential flexibility policy, the meaning of which has been set out by my Lord. Broadly speaking, absent any public law flaw in that policy itself, compliance with that policy in my judgment would satisfy the requirements of the common law duty of fairness.\u201d<\/li>\n
- Mr Poole submitted that the effect of the final sentence was that Beatson LJ was of the view that compliance with the EFP would in practice always satisfy the requirements of common law fairness. Although the point does not fall for decision in this case, any more than (as Mr Poole acknowledges) it did in SH <\/em>itself, I should say that in my view such a reading is inconsistent with what Beatson LJ says in the second half of para. 30.\u00a0 I understand his position to have been that the role of the common law duty of fairness is \u201cconstrained\u201d in the context of the PBS, as he put it at para. 29, but not that it is altogether eclipsed.<\/li>\n<\/ol>\n
Nyasulu<\/u><\/em><\/p>\n\n- Nyasulu v Secretary of State for the Home Department<\/em> [2016] EWCA Civ 1145 is a recent decision of this Court in a PBS case. I need not set out the details of the issue, which is different from those before us.\u00a0 The only relevance of the case for our purposes is that it contains a helpful summary, at para. 17 of the judgment of Sales LJ, of the effect of the learning to which I have already referred (together with one or two other cases to which we were not separately referred).\u00a0 This reads:<\/li>\n<\/ol>\n
\u201cThe Points Based System is intended to operate in a way which is simple, predictable and expeditious\\; see EK (Ivory Coast) v Secretary of State for the Home Department<\/em> [2014] EWCA Civ 1517, paragraph [59], per Briggs LJ; and Kaur v Secretary of State for the Home Department<\/em> [2015] EWCA Civ 13, paragraph [41], per Burnett LJ. It does not allow for any concept of a \u201cnear miss\u201d in an application. An application either satisfies the relevant points requirement or it does not: see e.g. Miah v Secretary of State for the Home Department<\/em> [2012] EWCA Civ 261, [2013] QB 35, paragraph [25]; and Patel v Secretary of State for the Home Department<\/em> [2013] UKSC 72, [2014] 1 AC 651, paragraphs [45]-[57]. The general public law obligation of fairness has to be applied in the context of the Points Based System having regard to these features of the regime: see EK (Ivory Coast)<\/em> at paragraph [31], per Sales LJ. There is no legal requirement of fairness which imposes any duty on the Secretary of State to explain the Immigration Rules to an applicant or to do anything further to help an applicant get her application in order if there is something wrong with it. On the contrary, the onus is clearly on the applicant to ensure that her documentation is in order and to check that she is submitting the correct materials as required by the relevant rule: see Alam v Secretary of State for the Home Department<\/em> [2012] EWCA Civ 960, [2012] Imm AR 974 at paragraph [45], per Sullivan LJ; Rodriguez v Secretary of State for the Home Department<\/em> [2014] EWCA Civ 2, at paragraph [100] per Davis LJ; and EK (Ivory Coast)<\/em> at paragraph [29], per Sales LJ, and paragraph [59], per Briggs LJ.\u201d<\/p>\nOVERVIEW<\/u><\/p>\n\n- In both Mandalia<\/em> and SH (Pakistan)<\/em> the challenge to the Secretary of State\u2019s failure to exercise evidential flexibility succeeded because of the particular language of the EFP as it then stood. In Mandalia<\/em> there was no need to consider paragraph 245AA because it was not in force at the material time (though NB Lord Wilson\u2019s comment referred to at para. 42 above).\u00a0 In SH (Pakistan)<\/em> paragraph 245AA was in play, but the terms of the Guidance were held to create an obligation on the Secretary of State to exercise evidential flexibility in some circumstances which the rule did not cover.\u00a0 But the language which was decisive in those cases has now changed: that process started with version 2 of the Guidance, which was effective from 20 May 2013, and was completed by version 4, effective from 1 October 2013.\u00a0 The question whether the EFP can be treated as a source of more extensive rights than appear in paragraph 245AA itself must be judged on the basis of the Guidance as it stood at the material time.<\/li>\n
- As to that, I have already said that the terms of the section on \u201cObtaining Additional Information\u201d were at the time with which we are concerned indistinguishable from those of paragraph 245AA itself. Mr Mustafa pointed out that the opening paragraphs of the introductory section remained substantially identical up to and including version 7, and that they referred generally to asking for clarification or for missing documents or information where \u201cthere are minor errors or omissions on specified documents\u201d.\u00a0 Mr Balroop likewise focused on this phrase, submitting that it demonstrated, as one would expect, that the Secretary of State\u2019s intention was that otherwise valid applications should not fail simply because of minor mistakes.\u00a0 That is a fair point as far as it goes, but the Guidance must be read as a whole and in the context of the rule to which it relates.\u00a0 If the introductory section were read as stating a general policy that caseworkers should seek further information in any case where there was a minor error or omission that would make nonsense of the (now) carefully limited terms of the section on obtaining additional information, and indeed of the equally limited terms of paragraph 245AA itself.\u00a0 In my view it should be read as simply introducing the subject-matter of the EFP, with the actual content of the policy appearing in the subsequent sections.\u00a0 I appreciate that, as Mr Mustafa pointed out, Elias LJ in SH (Pakistan) <\/em>did not rely only on p. 5 of the Guidance but also on p. 2.\u00a0 But at that stage the two parts of the Guidance gave an essentially consistent message: the policy was a broad one, and the particular cases identified at p. 5 were stated to be only examples.\u00a0 A different approach is necessary now that their provisions diverge.<\/li>\n
- Accordingly in my view the correct construction of versions 4-7 of the Guidance is that there is no longer a general policy to allow correction of minor errors: evidential flexibility will only apply in the particular cases provided for by paragraph 245AA. That may seem hard, but the reasons for having a more restricted policy are articulated in the authorities referred to above and summarised in Nyasulu<\/em>.\u00a0 The mismatch with the Rules which was identified in SH (Pakistan) <\/em>no longer exists.\u00a0 In fact I strongly suspect that that mismatch was always unintentional and that it was the result of incompetence in ensuring that the requirements of the Rules and the Guidance coincided.\u00a0 It would hardly be the first time that such mistakes have occurred in the Home Office: the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.<\/li>\n
- That analysis is consistent with that adopted by the Secretary of State herself in version 8 of the Guidance. In the section referred to at para. 35 (3) above, caseworkers are directed to concede challenges to decisions to refuse evidential flexibility taken at any time prior to the coming into force of version 4 of the Guidance (i.e. on or before 30 September 2013), on the basis that the ratio of the decisions in Mandalia<\/em> and\/or SH (Pakistan)<\/em> would apply to such cases.\u00a0 The position is regarded as being changed by the implementation of version 4, which \u201cmirrors the requirements in paragraph 245AA\u201d.<\/li>\n
- As I have acknowledged, the fact that the scope of the EFP is now much more limited than originally increases the scope for harsh outcomes \u2013 that is, for cases where a PBS application fails because of a minor error or omission which could have been rectified if the applicant was notified of it but which does not fall into one of the specific categories identified at paragraph 245AA (b). There may be very particular cases where such an outcome can be avoided by the application of the common law duty of fairness; but I agree with Beatson LJ in SH (Pakistan)<\/em> that the effect of that duty is constrained by the context of the PBS as expounded in the various authorities reviewed above.\u00a0 The clear message of those authorities, including Mandalia<\/em>, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process.\u00a0 It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right.<\/li>\n<\/ol>\n
WHEN IS A SPECIFIED DOCUMENT NOT A SPECIFIED DOCUMENT ?<\/u><\/p>\n\n- I should deal at this stage with one particular issue about paragraph 245AA which arises in both Khan<\/em> and Negbenebor<\/em>. It is clear both from the introductory words of sub-paragraph (b) and from the first sentence of sub-paragraph (c) that paragraph 245AA is intended to operate only where the applicant has submitted a specified document: what sub-paragraph (b) does is to give the applicant the opportunity to correct errors of the defined kinds in a specified document which has been submitted.\u00a0 But that leads to a logical problem. \u00a0Mr Malik \u2013 who principally argued this point for the Secretary of State \u2013 contended that a document which fails to comply with the various requirements contained in the relevant SD paragraph (or equivalent), or indeed with paragraph 39B (d) (originals not copies), cannot be a specified document at all, with the result that the conditions for the operation of paragraph 245AA would not arise.<\/li>\n
- Logical as such a submission might appear if viewed in isolation, it plainly cannot be correct in the context of paragraph 245AA, since if it were accepted there would be no scope for the operation of sub-paragraphs (b) or (d). It is easy enough to resolve the conundrum as regards heads (i)-(iii) under sub-paragraph (b) (and heads (i) and (ii) under sub-paragraph (d)): the draftsman plainly intended that what was submitted as a specified document but which was in the wrong format, or was a copy instead of an original, would count as a specified document for the purpose of the paragraph \u2013 in this context \u201cspecified document\u201d means \u201cpurported specified document\u201d.\u00a0 It is not quite so easy as regards head (iv) under sub-paragraph (b) (and head (iii) under sub-paragraph (d)) \u2013 that is, where the defect is that the document \u201cdoes not contain all of the specified information\u201d.\u00a0 Identifying exactly what that phrase is intended to cover needs some unpacking.\u00a0 It cannot have been intended that a document that simply showed none of the specified information at all would be covered by the rule.\u00a0 If, to take an extreme example by way of illustration, the requirement were that the document showed that an applicant had a Ph D but what was submitted showed instead that he or she had only an MA, that could not sensibly be described as a case where the document \u201cdid not contain all of the required information\u201d: it did not contain the essential information required and would simply be the wrong document.\u00a0 That is common sense, but it is reinforced by the phraseology of \u201cnot \u2026 all of<\/em> the specified information\u201d.\u00a0 It is accordingly, I believe, necessary to distinguish between, on the one hand, cases where the information which is missing is so wholesale as to affect the fundamental character of the document and, on the other, cases where it is secondary, so that it makes sense to say that the document is still of the kind specified albeit that it does not contain the particular information in question.\u00a0 Such a distinction seems to me to reflect the underlying policy behind the rule, as reflected in the reference in the introductory section of the Guidance to \u201cminor errors\u201d.<\/li>\n
- In so far as that approach may be said to depart from the literal language of the Rules \u2013 though I do not believe it really does \u2013 there is warrant for such an approach in the decision of the Supreme Court in Mahad v Entry Clearance Officer<\/em> [2009] UKSC 16, [2010] 1 WLR 48 \u2013 see esp per Lord Brown at para. 10 (p. 55 B-C).<\/li>\n<\/ol>\n
MUDIYANSELAGE<\/u><\/em><\/strong><\/p>\n\n- Shortly before the hearing Mr Mudiyanselage notified the Court that he would not be attending or represented on the appeal: the Court was asked to decide the appeal on the basis of his written submissions. Since the appeal had been listed as one of a group of representative cases, we decided that we should take that course and reach a reasoned determination of the issues.<\/li>\n
- On 5 April 2013 Mr Mudiyanselage applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. He was required by Appendix C (incorporated by paragraph 245DD (d)), to satisfy the maintenance requirements by showing that he had access to a minimum level of funds for a continuous period of at least 90 days ending no earlier than 31 days before the date of the application: paragraph 1B of Appendix C specified the documents to be supplied.\u00a0 The documentation which he submitted from the financial institution holding the funds on which he relied \u2013 Abans Finance Ltd \u2013 stated that it had held them only from 18 January 2013, i.e. for less than ninety days.\u00a0 In fact the funds had been held since 18 January 2012<\/u>, and it was Mr Mudiyanselage\u2019s case that his solicitors, Liyon Legal, wrote to the Secretary of State on 30 May 2013 pointing out the error and saying that they would supply corrected documentation from Abans as soon as possible.\u00a0 The Secretary of State has no record of receiving such a letter, and her decision refusing the application, dated 11 June 2013, was made without reference to it.\u00a0 A corrected document was indeed eventually supplied on 12 August, but that was two months after the decision had been made.<\/li>\n
- The Secretary of State\u2019s decision letter referred to the fact that Abans\u2019 letter did not show that the funds in question had been held for a sufficient period. It went on to say that<\/li>\n<\/ol>\n
\u201c\u2026 the decision has been made not to request additional documentation or exceptionally consider the application under the provisions of paragraph 245AA as it is not anticipated that addressing the omission or error would lead to a grant of leave.\u201d<\/p>\n That wording reflects the provisions of paragraph 245AA (c) and appears therefore implicitly to accept that the case prima facie<\/em> fell within sub-paragraph (b).\u00a0 Mr Poole accepted that that was how it read, but he said that that was not in fact the case, since the errors in the document did not fall within any of the three heads in sub-paragraph (b) as it then stood (see para. 12 above).\u00a0 To anticipate, no point was taken on this in the grounds of appeal and we are prepared to proceed on the basis of what the position in fact was: it would be futile to allow the appeal on the basis of errors in the reasoning of the decision letter if the same result would be reached on the application of the correct approach.<\/p>\n\n- Mr Mudiyanselage brought judicial review proceedings to challenge the refusal of his application. Permission was refused on the papers by UTJ Goldstein on 3 September 2014 and by UTJ Craig, following a hearing (at which both parties were represented), on 30 October 2014.<\/li>\n
- The application for permission to appeal to this Court was stayed pending the outcome in Mandalia<\/em>; but permission was eventually given by Beatson LJ on the papers on 28 January 2016. It was originally listed to be heard in February 2017 with two other appeals raising similar points, but for reasons that are unclear that hearing did not proceed.<\/li>\n
- Mr Mudiyanselage\u2019s grounds of appeal were settled by Mr Abdurahman Jafar of counsel in the form of a document which, unhelpfully, rolls up the grounds and the skeleton argument. (Mr Jafar also put in a short note on the judgment in Mandalia<\/em>.)\u00a0 Four grounds are pleaded, which I consider in turn.<\/li>\n<\/ol>\n
Ground 1\u00a0 <\/em><\/p>\n\n- This ground is headed \u201cParagraph 245AA of the Immigration Rules\u201d. The submissions that follow are rather diffuse, but the essential point appears to be that the documentation supplied by Mr Mudiyanselage purportedly in accordance with Appendix C was \u201cin the wrong format\u201d and so attracted the obligation under sub-paragraph (b) to give him the opportunity to correct it.<\/li>\n
- I do not accept that submission. I do not think that a document that supplies information covering the wrong period can be said to be \u201cin the wrong format\u201d.\u00a0 The error concerns the substantive content of the document rather than the way in which it is presented, which is essentially what I think is meant by \u201cformat\u201d.\u00a0 That is consistent with the approach taken in SH (Pakistan)<\/em>: see para. 47 above.\u00a0 My conclusion seems to me to be inescapable as a matter of ordinary language and I need not rely on the example \u2013 that is, a document which is not on letterheaded paper as specified \u2013 which is included in later versions of the rule (and Guidance), though it seems perfectly apt as an example.
\n<\/em><\/li>\n<\/ol>\nGround 2 <\/em><\/p>\n |