Supreme Court Decides Important Issue Of ‘Evidential Flexibility’

Thu, 15 Oct 2015

The Supreme Court heard the appeal of Mandalia v Secretary of State for the Home Department [2015] UKSC 59 on 7 May 2015. In a reserved judgment delivered on 14 October 2015 the Court unanimously allowed the appeal.

The issue which arose concerned the increasingly complicated Points Based System within the Immigration Rules. The Appellant was a successful student and after passing his first educational course, at his cost, he then sought to enrol and to begin a certified accountancy course.

To enable him to extend his visa, he had to complete a 43 paged Home Office application form. Tucked away in the small print there was a requirement that he provide bank statements for a period of 28 days to show he had sufficient funds to meet his course fees and maintenance. However, instead of providing bank statements to show he had funds for 28 days, his bank statement showed a period of just 22 days. Everything else on his application form and his background were clearly met.  

The Home Office rejected his visa extension application.

The Appellant appealed to the Tribunal, but because of the operation of section 19 Borders Act 2007, the Appellant was not permitted to correct the deficiency by adducing his earlier bank statement at the Tribunal hearing.   Section 19 was said to be a controversial provision by the Supreme Court.

There was clear and overwhelming evidence that the Appellant always had the required funds at all relevant times.  He had simply failed to provide that missing 6 days of bank statements with his initial application form to the Home Office. Instead he was told he had to leave the United Kingdom.

That is where his battle started. The Appellant had initially been acting in person, but then sought legal advice thereafter.  
He had appealed unsuccessfully to the Upper Tribunal and Court of Appeal at his cost without the benefit of public funding. 
The issue was whether or not the Home Office had acted unlawfully when refusing his visa extension application without first inviting the Appellant to supply a further bank statement in accordance with the guidance in the Home Office’s Evidential Flexibility Policy Process Instruction.

At the Supreme Court the Appellant was represented by Mr Abid Mahmood and Miss Nazmun Ismail.

The Home Office was represented by Mr James Eadie QC and Mr Mathew Gullick.

In an important ruling the Supreme Court adopted the concerns on behalf of the Appellant and other visa applicants that the Immigration Rules were becoming truly complex and near impossible to decipher. The Supreme Court also adopted the Appellant’s reference to Lord Justice Jackson’s judgment in a different case when it had been said that the Immigration Rules had “now achieved a degree of complexity which even the Byzantine emperors would have envied”

The effect of this judgment is that other cases at the Court of Appeal and elsewhere awaiting this decision now have a clearer picture of the duties on the Home Office when dealing with applications in respect of the Evidential Flexibility Policy Process Instruction.

Abid Mahmood is a member of the following groups, Court of Protection; Immigration Asylum and Nationality; International Arbitration and Trade; International Human Rights Law; Public Law and Sports Law.

The Judgment of the Supreme Court can be accessed here.

A live version of the Supreme Court’s summary of its decision can be viewed here.

 

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