UK - Mandalia v Secretary of State for the Home Department - [2015] All ER (D) 97 (Oct)

Country of Decision:
Country of Applicant:
Date of Decision:
14-10-2015
Citation:
[2015] UKSC 59
Court Name:
The Supreme court (Lady Hale DP, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes SCJJ)
National / Other Legislative Provisions:
UK - Immigration Act 1971
UK - Nationality, Immigration and Asylum Act 2002
UK - Borders Act 2007
UK - Immigration
UK - Immigration, Asylum and Nationality Act 2006
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Headnote: 

The Supreme Court considered the appellant’s appeal against the decision by the defendant Secretary of State, by which his application for a Tier 4 student visa had been rejected, on the ground that the applicant had only provided bank statements covering 22 out of the required 28 days. The court held that the refusal of the appellant’s application was unlawful because according to the process instruction the UK Border Agency should not have rejected his application without previously giving the appellant the opportunity to repair the deficit in his evidence. 

Facts: 

The appellant, Mr Mandalia, originally from India came to the UK in 2008 in order to study. His visa was subsequently extended and was due to expire on 9 February 2012. On 7 February 2012, he submitted an application to the UK Border Agency to further extend his visa in order to enable him to study accountancy with the BPP University. Consequently, he applied for a leave to remain in the UK as a Tier 4 (General) Student. The rules referable to this type of application required the application to be accompanied by a bank statement showing that the applicant 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. The application form stipulated the amount that had to be held in the applicant’s account for a 28-day period but it provided no direct information as to how the 28 days were calculated. Instead, it referred the applicant to the “specified documents”, i.e. the Immigration Rules and the Policy Guidance.

The bank statements provided by the appellant covered 22 out of 28 days required and his application was refused on this ground. This refusal was initially appealed with the First-tier Tribunal (Immigration and Asylum Chamber), followed by an appeal to the Court of Appeal. Both appeals were dismissed. 

Decision & Reasoning: 

The issue examined by the Supreme court was whether the UKBA had acted unlawfully in refusing his application without having first invited him to supply a further bank statement which showed that he had also held the required amount of at least £5,400 throughout the six preceding days.

The appellant contended that the agency had unlawfully departed from its policy set out in the process instruction entitled “PBS Process Instruction: Evidential Flexibility”.  The process instruction issued by the UKBA to its caseworkers granted them flexibility to query details and request further information, such as missing wage slips or bank statements.

The defendant Secretary of State argued that, properly interpreted, the process instruction did not require the caseworker to alert the appellant to the deficit in his evidence before refusing the application. The defendant submitted that the caseworker could not have requested additional information, as the missing bank statement was not one missing from a series, given that no two pillars, marking the start and the finish of the series, had been set.

Lord Wilson dismissed this submission by the defendant as ‘high level of pedantry’ and construed “missing from a series” as a mere example of missing evidence that could be requested by the caseworker, taking into account that there was no limit on the amount of information that could be requested, provided that the request was not speculative.

The process instruction stressed the need for flexibility to the caseworkers when considering application such as the one of the appellant by telling them that: (a) there was no limit on the amount of information that could be requested, provided that the request was not speculative; (b) the bank statements missing from a series represented only an example of the further evidence which should be requested; and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested.                

Therefore, the court ruled that the defendant had acted unlawfully because, properly interpreted, the process instruction obliged the UKBA to have invited the appellant to repair the deficit in his evidence.

The appeal was allowed. 

Outcome: 

Appeal granted.

Observations/Comments: 

Whilst the case relates to UK immigration law it arguably raises issues applicable to asylum law, namely the right to be heard, the right to good administration and the benefit of the doubt. 

This case summary was completed by Angeliki Kotsidou, a LPC student at BPP University, Manchester. 

Other sources cited: 

"A Points-Based System: Making Migration Work for Britain” Cm 6741

Immigration Rules, Part 6A: POINTS-BASED SYSTEM

Tier 4 of the Points Based System – Policy Guidance

“PBS Process Instruction: Evidential Flexibility”

 

Case Law Cited: 

UK - R (Gu) v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), [2015] 1 All ER 363

UK - Gangadeen and Jurawan v Secretary of State for the Home Department [1998] Imm AR 106

UK - R (SK (Zimbabwe)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2011] UKSC 23, [2011] 1 WLR 1299

UK - R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2011] UKSC 12, [2012] 1 AC 245

UK - R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363

United Kingdom - R (WL) (Congo) v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 WLR 2168

UK - AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12

UK - Ahmadi v Secretary of State for the Home Department - [2013] All ER (D) 147 (May)

UK - Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291

UK - R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWHC Admin 670, [2001] EWCA Civ 1512, [2002] UKHL 41