Jovy Octubre Rodriguez v The Secretary of State for the Home Department

A public authority must give effect to a material policy governing its decision. Where a policy requires an applicant to be alerted to missing mandatory evidence and afforded an opportunity to provide it, failure to do so disregards a material consideration and is procedurally unfair.

In an immigration appeal, those public-law errors render the decision not in accordance with the law. The Tribunal should ordinarily declare the decision unlawful and leave the application outstanding for lawful redetermination, rather than exercise for itself the discretion which the decision maker failed to exercise.

The appellant, a Tier 4 student, applied for further leave to remain. Her application was refused because her bank statements did not establish the required maintenance funds for the required period. The First-tier Tribunal dismissed her appeal, holding that later financial evidence could not be considered under Nationality, Immigration and Asylum Act 2002, section 85A.

On appeal, the appellant contended that the Secretary of State had failed to apply the UKBA evidential-flexibility policy. The policy in force required, in the circumstances found, that applicants missing mandatory evidence be contacted and given an opportunity to provide it. The central issue was whether that failure made the immigration decision not in accordance with the law.

1. Appeal allowed. The First-tier Tribunal had made a material error of law by upholding a refusal which was not in accordance with the law.

2. The Tribunal construed the UKBA letter of 19 May 2011 as imposing, during the trial period, a requirement that applicants with missing mandatory evidence be contacted and given an opportunity to rectify the omission before refusal. On the facts found, that policy applied to the appellant. The Secretary of State did not contact her, although a simple request would have enabled her to supply material showing that she met the maintenance requirement.

3. A public authority must give effect to a policy which it has adopted and promulgated. The failure here both disregarded a plainly material consideration and denied the appellant the procedural opportunity conferred by the policy. It was therefore procedurally unfair. Even if the policy letter had not governed the case, the failure to be aware of and consider the discretionary evidential-flexibility policy would have produced the same public-law error.

4. Section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 permits an appeal on the ground that an immigration decision is otherwise not in accordance with the law. That ground includes the duty to act fairly and to have regard to material policies. The Tribunal distinguished Alam and Others v Secretary of State for the Home Department [2012] EWCA Civ 960, which did not address this policy and evidential matrix.

5. Following T (S.55 BCIA 2009 – Entry Clearance) Jamaica [2011] UKUT 00483 (IAC), the appropriate remedy was a declaration that the decision was not in accordance with the law. The application remained outstanding and the Secretary of State was under a public-law duty to remake it lawfully.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and declared the Secretary of State’s decision not in accordance with the law.
• First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal against refusal of further Tier 4 leave. Its citation is not stated in the judgment.