PAVEL PRODOBREYEV (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

For paragraph 34A(vi)(a) of the Immigration Rules, “related guidance notes” means guidance related to the applicant’s application process. It does not include unpublished or unreferenced internal guidance for the Secretary of State’s decision makers.

A document described as mandatory only “if applicable” is required only where the application process requires its submission. A person’s separate obligation to hold or obtain the document does not itself make it mandatory for validating the application.

The applicant, a Kazakh national, sought judicial review of the Secretary of State’s decision of 27 March 2014 to treat his application for further leave to remain as invalid. The stated reason was his failure to supply a Police Registration Certificate.

His hybrid online “print and send” application did not identify that certificate in its tailored list of required documents. The Secretary of State initially relied on screenshots said to be typical, but later investigation showed that the applicant’s answers would not have generated any requirement for the certificate. The central issue was whether internal decision-maker guidance nevertheless constituted “related guidance notes” under paragraph 34A(vi)(a) of the Immigration Rules.

1. The judicial-review application was granted. The decision treating the application as invalid was quashed.

2. Paragraph 34A(vi)(a) required the application to be accompanied by documents specified as mandatory in the application form and/or related guidance notes. The tailored application form did not specify a Police Registration Certificate as mandatory. The Secretary of State’s later investigation established that the online process would not have notified the applicant of such a requirement or included it in the printed document list.

3. The internal document, Guidance – Specified Application Forms and Procedures, was not “related guidance” for this purpose. It was neither guidance to which the applicant had been referred nor guidance for applicants. It instructed the Secretary of State’s decision makers how to assess applications. Guidance can properly be related to the application process only where it is guidance for applicants.

4. In any event, the internal guidance required a Police Registration Certificate only “if applicable”. That qualification referred to applicants required by the application process to submit the certificate, rather than every person separately obliged to register with the police. The applicant was therefore not required to provide it.

Permission for judicial review was granted by Judge Kebede. The Upper Tribunal granted the application and quashed the Secretary of State’s decision of 27 March 2014.