Nandi, R (on the application of) v Secretary of State for the Home Department

Under the Points Based System, specified documentary requirements are substantive conditions of the application. The Secretary of State may assess defects cumulatively. An applicant has no general entitlement to an opportunity to correct deficiencies, even where published evidential-flexibility guidance exists. Paragraph 245AA of the Immigration Rules effectively incorporates that policy, while allowing limited clarification or correction of minor errors or omissions. Where the documents collectively omit key information needed to assess eligibility, refusal without further enquiry is lawful. A claimant seeking to rely on a discretion outside the Rules must identify a proper basis for its exceptional exercise.

The claimant sought judicial review of the refusal of his application to vary student leave to remain to leave as a Tier 1 (Entrepreneur) Migrant. He relied on documentary evidence concerning third-party investment funds, but the bank letter, third-party declaration and solicitor’s letter each failed to satisfy specified requirements in paragraph 41SD of Appendix A to the Immigration Rules.

He argued that the Secretary of State should have allowed him to remedy the defects under paragraph 245AA or under published evidential-flexibility policies, and that she had unlawfully fettered her discretion. The central issue was whether refusal without giving an opportunity to provide corrected or additional documents was unlawful or unreasonable.

1. The claim was refused. The Secretary of State was entitled to treat the defects in the three documents cumulatively. Taken together, they left the application without key information required to assess the merits under the Points Based System.
2. Paragraph 41SD required the third-party declaration to state the relationship between the investor and the applicant. “Relationship” had its natural and broad meaning. It included the relationship between an investor and a businessman, even where there was no personal or familial relationship.
3. Paragraph 41SD(b)(ii) required the solicitor’s letter to confirm that the third-party declaration contained the signatures of the people stated, including the applicant. The detailed requirements in subparagraphs (1) to (7) did not remove that obligation. Secretary of State for the Home Department v Shebl [2014] UKUT 00216 (IAC), concerning documents read together, did not assist on this issue.
4. Following Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, paragraph 245AA effectively contained the evidential-flexibility policy. The wider guidance allowed a caseworker, rather than required the caseworker, to seek clarification or information where minor errors or omissions appeared on an otherwise valid application. It did not create a general obligation to invite correction.
5. The decision letter identified the defects and explained why further documentation was not requested. The same essential assessment would have applied under the policy guidance, and the claimant had not shown that correction would have produced a different outcome. He also identified no proper basis for an exceptional grant outside the Rules. There was therefore no unlawfulness, unreasonableness or wrongful fettering of discretion.

First-instance judicial review. No earlier decision is stated in the judgment.