Secretary of State for the Home Department v Rodriguez

Under the Points Based System, documentary maintenance requirements are strict. The Evidential Flexibility policy requires further evidence to be sought only where it exists, or there is sufficient reason to believe that it exists. It does not require a general opportunity to cure substantive deficiencies or invite speculation about undisclosed funds. A letter referring to missing mandatory evidence concerned application validity, not substantive failure to obtain points. A near miss does not justify a different result. Permission grants must state any restriction unambiguously. The Secretary of State's appeal in Rodriguez succeeded; Rodriguez's underlying appeal and the appeals of Mandalia and Patel were dismissed.

Three foreign nationals applied for further leave to remain as Tier 4 student migrants. Their applications failed because the specified bank statements did not establish the maintenance funds required by the Immigration Rules, although each applicant asserted that sufficient funds otherwise existed.

Rodriguez failed before the First-tier Tribunal but succeeded in the Upper Tribunal, whose decision was reported as [2013] UKUT 42 (IAC) (JR). Mandalia failed before the First-tier Tribunal; the Upper Tribunal dealt only with a separate removal issue. Patel succeeded before the First-tier Tribunal but failed on the Secretary of State's appeal to the Upper Tribunal. The appeals concerned whether the Evidential Flexibility policy, a letter of 19 May 2011, or fairness required the Secretary of State to contact applicants before refusing applications.

1. Disposition. Davis LJ, with whom Pitchford LJ and Sir Stanley Burnton agreed, granted the Secretary of State permission to appeal in Rodriguez, refused permission to adduce fresh evidence, refused to set aside Mandalia's grant of permission, and dismissed Mandalia's and Patel's appeals.
2. The 19 May 2011 letter. The letter did not create a new binding policy requiring caseworkers to notify applicants of substantive deficiencies in specified documents. Properly read, references to validation and mandatory evidence concerned the validity of an application and mandatory information in the form. They did not concern the substantive assessment of points under the Immigration Rules. The distinction identified in Alam between an invalid application and a valid application refused for failure to satisfy substantive requirements applied: [2012] EWCA Civ 960.
3. Evidential Flexibility. The applicable process instruction had to be considered, but it did not give applicants a general opportunity to repair inadequate applications. Requests for further information were permitted only where the evidence had been established to exist, or there was sufficient reason to believe that it existed. Requests were not to be speculative. Missing statements from an identifiable sequence could justify inquiry; speculation about undisclosed accounts or funds could not.
4. Application to the appeals. Rodriguez had supplied documents which showed a shortfall, with no evidence that other funds existed. Mandalia's statements covered only 22 days, but this was not a missing-sequence case and inquiry about other statements would have been speculative. Patel's relatively minor shortfall did not justify further inquiry. The applications were therefore properly refused. The Points Based System permitted no near-miss or sliding scale: see Raju, Miah and Patel, respectively [2013] EWCA Civ 754, [2012] EWCA Civ 261 and [2013] UKSC 72.
5. Permission to appeal. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, the interpretation of Mandalia's permission order was decisive. The operative grant was unrestricted, and the phrase used in the reasons indicated a wider grant than the Ahmadi issue alone. Any ambiguity was resolved in the applicant's favour. A restriction should be stated expressly and precisely in the grant itself.
6. Remittal. Remittal was inappropriate where, on the established facts and the correct legal approach, only dismissal could follow.

1. Court of Appeal (Civil Division): [2014] EWCA Civ 2. Permission was granted to the Secretary of State in Rodriguez, her appeal was allowed, and Rodriguez's underlying appeal was dismissed. Mandalia's permission was not set aside, but his appeal was dismissed. Patel's appeal was dismissed.
2. Upper Tribunal (Immigration & Asylum Chamber): Rodriguez succeeded on the policy issue; Mandalia's policy issue was not determined; Patel's appeal was dismissed after the Secretary of State's appeal.
3. First-tier Tribunal: Rodriguez and Mandalia failed on the maintenance-funding issue. Patel succeeded on that issue, although her separate removal challenge was also addressed.