Mandalia v Secretary of State for the Home Department

A public authority must determine an application under the lawful policy it has adopted unless there is good reason to depart from it. This public law duty rests on good administration and applies even where the applicant was unaware of the policy. A policy must retain sufficient flexibility to avoid fettering discretion.

The meaning of an executive policy is a question of law for the court. The authority’s own interpretation receives no special deference. Under an evidential-flexibility policy requiring caseworkers to seek curable missing evidence where it exists or may exist, uncertainty is resolved in the applicant’s favour. A numbered bank statement covering only part of the required period may reveal missing statements from a series. Refusal without the required invitation is unlawful.

Mandalia v Secretary of State for the Home Department concerned an application to extend leave to remain as a Tier 4 (General) Student. The applicant supplied a bank statement showing that he held more than the required £5,400, but it covered only 22 of the required 28 days. The agency refused the application without inviting him to supply statements for the missing six days.

Later statements demonstrated that the required funds had been held throughout those days. The First-tier Tribunal nevertheless dismissed the appeal because section 85A of the Nationality, Immigration and Asylum Act 2002 prevented reliance on evidence not supplied with the application. The Upper Tribunal allowed a separate challenge to the removal decision but did not determine the challenge based on the agency’s evidential-flexibility process instruction.

The Court of Appeal dismissed the appeal: [2014] EWCA Civ 2, [2014] Imm AR 588. The central issue before the Supreme Court was whether the agency acted unlawfully by departing from its policy when it refused the application without first requesting the missing evidence.

Appeal allowed unanimously. Lord Wilson delivered the judgment, with which Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agreed.

1. An individual has a basic public law right to have an application considered under the lawful policy adopted by the executive. The duty is founded on good administration and requires public bodies to deal straightforwardly and consistently with the public. A policy must not fetter the decision-maker’s discretion, and good reasons may justify departure. The process instruction was lawful, retained ample flexibility and was subject to no suggested good reason for departure: R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 approved and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 applied.

2. The proper interpretation of an executive policy is a question of law which the court must determine for itself. Earlier suggestions that the Secretary of State’s interpretation of an immigration policy should be accepted unless unreasonable were inaccurate. R (SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23 was applied, and Gangadeen and Jurawan v Secretary of State for the Home Department [1998] Imm AR 106 was disapproved.

3. Properly interpreted, the evidential-flexibility process instruction required a caseworker to request curative evidence where an application contained missing evidence, the application would not otherwise fall for refusal, and the evidence existed or there was sufficient reason to believe it existed. Examples in the instruction, including bank statements missing from a series, were not exhaustive. A request could not be speculative, but uncertainty as to whether the evidence existed had to be resolved in the applicant’s favour.

4. The statement numbered 64 plainly indicated that it was the latest statement in a series and that statements covering the preceding period were available. There was at least sufficient doubt about the existence of evidence covering the missing six days to require a request. The agency therefore departed from its policy by refusing the application without first inviting the applicant to repair the evidential deficit. The refusal was unlawful.

5. It was unnecessary to determine whether the agency’s acknowledgement letter independently created a legal entitlement to notice of the evidential deficit. The Court allowed the appeal, overruled R (Gu) v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), and quashed the refusal. The application was to be lawfully redetermined after the agency requested updated information.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, overruled R (Gu) v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), quashed the refusal and directed that the application be lawfully redetermined.
2. Court of Appeal: Dismissed the applicant’s appeal, holding that the agency was entitled to refuse the application without seeking the missing evidence: [2014] EWCA Civ 2, [2014] Imm AR 588.
3. Upper Tribunal (Immigration and Asylum Chamber): On 12 December 2012, allowed the appeal against the removal decision but did not determine the challenge to the refusal of leave. The tribunal had misconstrued the permission to appeal as limited to removal.
4. First-tier Tribunal (Immigration and Asylum Chamber): On 2 July 2012, dismissed the appeal because the evidence submitted with the application did not cover the required 28-day period.