Mudiyanselage v The Secretary of State for the Home Department

Under the points-based immigration system, applicants must comply precisely with the documentary requirements. Versions 4–7 of the evidential flexibility guidance confer no broader entitlement than paragraph 245AA of the Immigration Rules. Flexibility applies only within the limited categories specified there.

A purported specified document remains eligible for correction where its defect is secondary. A document lacking information fundamental to its character is the wrong document and falls outside paragraph 245AA. Common law fairness may exceptionally require further enquiries, but its operation is constrained by the system’s need for certainty, predictability and efficient processing.

Six appeals from decisions of the Upper Tribunal concerned the documentary requirements of the points-based immigration system. Five principally raised the scope of paragraph 245AA of the Immigration Rules and the Secretary of State’s successive evidential flexibility policies. The sixth concerned the assessment of a Tier 1 entrepreneur’s genuine intention and access to investment funds.

The applicants had variously submitted documents containing incorrect dates, documents relating to the wrong period, or no copy of the particular specified document. The central questions were when such defects could be corrected, whether the guidance conferred wider rights than paragraph 245AA, and whether common law fairness required an opportunity to supply further evidence.

1. Disposition. The appeals of Mudiyanselage, Khan, Negbenebor, Igwe and Kokab were dismissed. MA (Pakistan)’s appeal was allowed by consent. Sir Colin Rimer and Sir Brian Leveson P agreed with Underhill LJ.

2. Versions 4–7 of the evidential flexibility guidance must be read as a whole and alongside paragraph 245AA. Their introductory references to minor errors and omissions did not create a general policy permitting correction. The operative policy was confined to the categories specified in paragraph 245AA. The broader reasoning in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 and SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426 depended on materially earlier versions of the policy.

3. Paragraph 245AA applies where a purported specified document has been submitted but has a defined remediable defect. A copy, a document in the wrong format, or a document lacking secondary specified information may qualify. Information is secondary where the document remains recognisably of the specified kind. Where the omission is so extensive or fundamental that it changes the document’s character, the applicant has submitted the wrong document and paragraph 245AA does not apply.

4. A document giving information for the wrong period is not merely in the wrong format. Similarly, accounts, website printouts or other materials cannot substitute for a specifically required Current Appointment Report. The existence of equivalent information elsewhere in an application does not activate paragraph 245AA where the required specified document was never supplied.

5. Common law fairness remains capable of applying in very particular cases, but it is constrained by the nature of the points-based system. Applicants bear responsibility for supplying the correct evidence with their applications. Occasional harsh outcomes are a consequence of the system’s emphasis on certainty, predictability and efficient processing.

6. For Tier 1 entrepreneur applications, funds may be in the applicant’s possession yet not be genuinely available if they are subject to constraints preventing their investment. In assessing genuine intentions, an entry clearance officer may consider commercial viability, experience, research and immigration motives as evidence bearing on whether the proposed investment is genuine. Paragraph 245DB(h) creates no general obligation to request further evidence, although fairness may exceptionally require one.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 65, dismissed the appeals of Mudiyanselage, Khan, Negbenebor, Igwe and Kokab. MA (Pakistan)’s appeal was allowed by consent.

2. Upper Tribunal (Immigration and Asylum Chamber): Refused Mudiyanselage, Khan and MA (Pakistan) permission to pursue judicial review, and dismissed the judicial review claims of Negbenebor, Igwe and Kokab. The individual Upper Tribunal decisions have no neutral citations stated in the judgment.