Thu, 23 Oct 2014
Mandalia v Secretary of State for the Home Department UKSC 2014/0059
The Supreme Court has granted permission to appeal to the Appellant. There are many other cases that rely on the result of this case and there have been a number of enquiries from solicitors and counsel in respect of the Appellant’s appeal. This short summary may assist.
The Appellant had applied for leave to remain as a Tier 4 (General) student migrant whereby he sought to continue to study in the United Kingdom. That application required certain specified documents to be provided with his application form. Upon application, each student is then granted ‘points’ pursuant to the Government’s Points Based System of immigration.
The Appellant had provided a bank statement and his bank held the required funds expected of him by his application to show that he had sufficient funds to be able to house and maintain himself in the United Kingdom. However he had not provided a series of bank statements. His application was rejected and he was asked to leave the United Kingdom despite being a good student and despite having met all of the other requirements of the Immigration Rules.
The Appellant had argued that prior to the rejection of his application, the Secretary of State had been obliged to apply her evidential flexibility policy which would have allowed him to remedy any minor deficiencies in his application and which he had been in a position to do. The issue was thus whether the Secretary of State was required to afford the Appellant such an opportunity before refusing his application.
The Upper Tribunal had failed to deal with the issue in Mr Mandalia’s appeal. In a co-Appellant’s appeal, the Upper Tribunal had reasoned that a letter of May 19 2011 from UKBA to the Joint Education Task Force unequivocally heralded an evidential flexibility policy which the Secretary of State had failed to apply and which had marked a shift from a mechanistic application of the rules, towards one of greater flexibility, discretion and fairness. In particular the Upper Tribunal relied on a passage in the letter which referred to the trialling of a validation stage where applicants would be given the opportunity to provide mandatory information before their application was rejected. The issues were whether (i) the letter of May 19 2011 represented binding new policy; (ii) decision-making officials had ignored the relevant process instruction policy in the co-Appellant’s case; and (iii) a letter the secretary of state sent on receipt of the co-Appellant’s application obliged her to afford a chance to supplement documentation supplied
The Court of Appeal (Lord Justice Pitchford, Lord Justice Davis and Sir Stanley Burnton)  1 Imm AR 588 had dismissed Mr Mandalia’s appeal and had held, amongst other things, that taken overall, the evidential flexibility process instruction was not designed to give an applicant the opportunity first to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after consideration. It was to be noted that requests for information were not to be speculative and that there had to be sufficient reasons to believe the evidence existed. Accordingly, the Secretary of State was under no obligation to afford any of the appellants such a chance to supplement any documentation supplied before refusing their applications. Further, although the Upper Tribunal had erred in understanding the ambit of Mr Mandalia's appeal, remittal in his case would serve no purpose where the only outcome would be dismissal.
The Court of Appeal also gave important guidance in relation to the need, where a grant of permission to appeal was limited or restricted by the Upper Tribunal, that it be unambiguously clear. Difficulties had arisen in this case because of the unclear nature of the Upper Tribunal’s grant of permission to appeal.
The Supreme Court has granted Mr Mandalia permission to appeal on all grounds. The appeal is to be listed in the early part of 2015 for substantive hearing.
Mr Mandalia’s solicitor at the Court of Appeal was Mr Manjit Singh (One Immigration Leicester) and Douglas Weymss, Leicester. Mr Mandalia has now retained Messrs Fountain Solicitors, Walsall (Mr R Sharif and Mr J Howard) for the Supreme Court proceedings.
Mr Abid Mahmood is instructed to appear on behalf of the Appellant at the Supreme Court.
Please click here for an article in respect of the appeal at the Court of Appeal stage on LexisNexis.
Please click here for Mr Abid Mahmood’s profile.