Ali v The Secretary of State for the Home Department

The evidential flexibility policy is directed to minor omissions in documents that have been submitted. It does not impose a general duty to request key documents that were wholly absent. Mandalia v Secretary of State [2015] UKSC 59 concerned a partial series of bank statements and did not require missing evidence to be requested in every case. SH v Secretary of State [2016] EWCA Civ 426 was distinguishable because the required information had been supplied in a document from the wrong person and evidence showed that the correct certificate existed. A brief tribunal decision may provide adequate reasons where it adopts clear reasons already given. An investment made in the hope of qualifying under the Immigration Rules did not, on the material provided, establish Article 8 engagement.

The applicant challenged refusal of her Tier One Entrepreneur application for failure to provide advertising, website and trade-body evidence. Upper Tribunal Judge Allen refused permission for judicial review on 13 August 2015, and Upper Tribunal Judges Canavan and Wikeley refused permission to appeal on 23 September 2015. The applicant renewed her application after Mandalia v Secretary of State [2015] UKSC 59 and SH v Secretary of State [2016] EWCA Civ 426. The issues were whether the evidential flexibility policy required the Secretary of State to seek the missing documents, whether the Upper Tribunal had given adequate reasons, and whether Article 8 rights were engaged.

Beatson LJ refused the renewed application for permission to appeal.

1. Scope of evidential flexibility. The policy addressed minor errors or omissions in specified documents submitted with an application. It did not extend to key categories of documents that had not been supplied at all. The refusal was therefore reached within the policy’s proper scope.
2. Mandalia. Mandalia v Secretary of State [2015] UKSC 59 did not establish a general obligation to request every item of missing evidence. It concerned one bank statement from a series covering 22 of the required 28 days, in circumstances where the additional statements should have been requested. The present case was materially different because the relevant documents were wholly absent. The question of giving the applicant the benefit of the doubt therefore did not arise.
3. SH. SH v Secretary of State [2016] EWCA Civ 426 was distinguishable. There, the required information had been provided in a document from the wrong person, with evidence that the appropriate certificate existed and that the application would succeed if it were supplied by the awarding institution. That reasoning did not assist where entire categories of key documents had not been provided.
4. Reasons and Article 8. The Upper Tribunal’s decision was brief but its reasons were clear because it accepted the respondent’s stated reasons. The information provided did not suggest that Article 8 rights were engaged. A commitment to invest in the hope of remaining under the Immigration Rules was insufficient on the facts. Order: application refused.

1. Court of Appeal (Civil Division): Beatson LJ refused the renewed application for permission to appeal on 15 November 2017.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judges Canavan and Wikeley refused permission to appeal on 23 September 2015, following Upper Tribunal Judge Allen’s refusal of permission for judicial review on 13 August 2015.