SH (Pakistan) v Secretary of State for the Home Department

An evidential flexibility policy must be construed objectively and given effect unless there is good reason to depart from it. A policy addressing missing evidence or minor errors may supplement the Immigration Rules where its language is broader than the Rules.

Under Rule 245AA, a document issued by the wrong institution is the wrong document, rather than a document in the wrong format. A declared policy cannot expand an unambiguous rule through interpretation, although it may impose an independent public law obligation.

The appellant applied for leave to remain as a Tier 1 (Entrepreneur) migrant. To establish English-language proficiency, he submitted a document from his teaching college containing the required information. Appendix B of the Immigration Rules, however, required a degree certificate or a transcript from Coventry University, the awarding institution.

The Secretary of State refused the application. The First-tier Tribunal rejected an appeal under the evidential flexibility policy, and the Upper Tribunal held that Rule 245AA did not apply because the appellant had submitted the wrong document rather than a document in the wrong format.

The Court of Appeal considered whether Rule 245AA applied, whether the evidential flexibility policy independently required the Secretary of State to seek the missing certificate, and whether common law fairness required that opportunity.

1. The appeal was allowed unanimously on the evidential flexibility policy ground. The policy in force when the Secretary of State decided the application was not confined to circumstances covered by Rule 245AA of the Immigration Rules. Its language extended more broadly to missing evidence and minor errors. It contained no general reference tying its operation to Rule 245AA and expressly addressed circumstances wider than those specified by that Rule.

2. Rule 245AA(b)(ii) did not apply. The document from the teaching college was the wrong document, not a document in the wrong format. Appendix B required confirmation from the degree-awarding institution. The identity of that institution performed a substantive verification function. A document from Coventry University containing the relevant information but lacking official headed paper might have presented a formatting defect, but that was not this case.

3. The Rules could not be enlarged by interpreting them consistently with the policy. The principle permitting an ambiguous rule to be read compatibly with a declared policy had no application because Rule 245AA was unambiguous. It could not sensibly mean that the Secretary of State could request correct documents outside the circumstances specified in the Rule.

4. The policy applied independently. It had to be construed objectively and honoured unless there was good reason to depart from it, consistently with Mandalia v Secretary of State for the Home Department [2015] UKSC 59. There was ample evidence that the application would succeed if the certificate were produced and overwhelming evidence that the certificate existed. It would have been irrational to conclude that it could not readily be supplied.

5. Beatson LJ observed that common law fairness may impose duties additional to the points-based Rules, although the need to process large numbers of applications by objective criteria informs its operation. Compliance with a lawful evidential flexibility policy would ordinarily satisfy that duty. The fairness issue did not require determination because the appeal succeeded under the policy.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The Upper Tribunal's conclusion was displaced because the evidential flexibility policy operated independently of Rule 245AA of the Immigration Rules.

2. Upper Tribunal (Immigration and Asylum Chamber): It dismissed the appeal on the basis that Rule 245AA(b)(ii) covered a correctly identified document in the wrong format, whereas the appellant had submitted the wrong document.

3. First-tier Tribunal: It dismissed the appeal, holding that the evidential flexibility policy did not apply where an applicant had failed to provide the type of document specified by the Rules.