ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE MARTIN
McCLOSKEY J & UPPER TRIBUNAL JUDGE SPENCER
 UKUT 42 (IAC) (JR)
UPPER TRIBUNAL JUDGE RENTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
SIR STANLEY BURNTON
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
- and between -
|(1) MANISH MANDALIA
(2) FALGUNIBEN PATEL
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR REMBERT DE MELLO and MR ABID MAHMOOD (instructed by Douglas Wemyss Solicitors) for the Respondent Rodriguez.
MR ABID MAHMOOD (instructed by Douglas Wemyss Solicitors) for the Appellant Mandalia.
MISS FRANCES SHAW (instructed by Robinson Ravani) for the Appellant Patel.
Hearing dates: 16 & 17 December 2013
Crown Copyright ©
Lord Justice Davis:
(a) Ms Rodriguez
"If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem. If there is an issue with the fee you have paid, your application will be rejected and details sent to you on how to make an application "
(b) Mr Mandalia
"It is unnecessary to hold an oral hearing of the application for permission to appeal because I consider that it can properly be dealt with on the papers.
Permission to appeal is granted.
Reasons (including any decision on extending time)
The Tribunal is bound by the Court of Appeal authority, and therefore the challenge to the decision of that court in Alam cannot avail the appellant before the Tribunal. However the decision in Ahmadi  UKUT 00174 (IAV) is of clear relevance in this case and in respect of that point in particular permission is granted."
" was reasonable to conclude that the applicant had the required amount at the date of the application for the specified period but it remains appropriate for the respondent to have sight of the specified documents in support of this."
It was directed that the Secretary of State correspond with the applicant "to afford [her] the opportunity to demonstrate that she satisfied the maintenance requirement" at the relevant time.
"However the policy does not mean that in every case where the application appears to fail to meet the requirements of the relevant Immigration Rules the [Secretary of State] is obliged to make further enquiries The evidence produced by [the applicant] with her application showed that she was more than marginally below the required level of funds. I do not think the decision in Rodriguez can be construed to mean that the [Secretary of State] was under an obligation to make enquiries to see if there were further funds."
Permission to appeal to the Court of Appeal subsequently was refused by the Upper Tribunal.
The Immigration Rules and the Evidential Flexibility Policy
(a) The Immigration Rules
(b) Evidential Flexibility Policy
"1. The time given to applicants to produce additional evidence has been increased from three working days to seven working days; and
2. There is now no limit on the amount of information that can be requested from the applicant. However, requests for information should not be speculative, we must have sufficient reason to believe that any evidence requested exists."
"We will only go out for additional information in certain circumstances which would lead to the approval of the application.
Before we go out to the applicant we must have established that evidence exists, or have sufficient reason to believe the information exists. Examples include (but are not limited to) bank statements missing from a series "
In step 4, it is indicated that:
" where there is uncertainty as to whether evidence exists benefit [sic] should be given to the applicant and the evidence should be requested ."
But that is in the particular context there specified.
(c) The letter of 19 May 2011
"While we are confident PBS is accessible and understandable, we also recognise there will always be the potential for human error. UK Border Agency caseworkers employ a measure of flexibility when considering PBS applications. For example, caseworkers operate a system which allows them to contact applicants to request further documentation or clarification where appropriate. In addition a validation stage is being trialled where applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection."
The Upper Tribunal attached particular significance to the penultimate sentence which, indeed, it italicised in its determination.
The decision in Rodriguez
i) The letter dated 19 May 2011 from UKBA to the Joint Education Task Force Members (set out in Appendix A to the determination) represented applicable promulgated policy and, on its proper interpretation, "heralded unequivocally" the introduction of a new practice whereby all applicants would be notified of the absence of "mandatory evidence" and be given the opportunity to rectify the relevant "informational shortcomings" prior to rejection of the application: paragraph 12.
ii) The Secretary of State failed, when determining Ms Rodriguez's application, to have regard to that policy as set out in the letter, which was to be regarded as the "dominant policy" so far as this applicant was concerned: paragraphs 11 and 14.
iii) Alternatively, even if the only applicable policy was that contained in the Evidential Flexibility process instruction (set out in Appendix B to the determination), the Secretary of State's decision was in any event vitiated by the relevant caseworker being unaware of such policy, which was simply ignored: paragraph 15.
iv) The policy enshrined in the Evidential Flexibility process instruction and the letter of 19 May 2011 in substance "unambiguously proclaimed" to the public that the emphasis was being shifted from "mechanistic prescription towards flexibility, discretion and, ultimately, greater fairness to applicants": paragraph 22.
v) The decision and approach of the Court of Appeal in Alam was marked by its not having available "the full evidential matrix" considered by the Upper Tribunal and by the failure to discuss the Evidential Flexibility policy, and so could be distinguished: paragraphs 21 and 23.
Rodriguez permission to appeal
Mandalia application to set aside grant of permission
The determination of the appeals
(a) The effect of the letter of 19 May 2011
(b) The application of the Evidential Flexibility process instruction
"We have considered your application on behalf of the Secretary of State and your application has been refused under the Immigration Rules. This decision has been made in line with the Immigration Rules and the Tier 4 Policy Guidance."
So, self-evidently, the Tier 4 policy guidance had been appreciated which is to be taken as also connoting an awareness of the process instruction itself and had not been ignored. Accordingly, in my view the alternative conclusions of the Upper Tribunal at paragraphs 15 and 19 of the determination cannot stand.
(c) The letter sent to Ms Rodriguez
" ..In these circumstances the letter dated 5th April 2011 from UKBA could not reasonably have led Mr. Anwar to believe that his application form would be checked in detail so that he would be notified of any failure to provide specified documents and given an opportunity to rectify the omission before a decision was made ."
" the Immigration Rules, the Policy Guidance and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. .. Mr Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion."
Sullivan LJ went on later to say in paragraph 45:
" .the appellants were simply at fault in not supplying the specified documents with their applications. I endorse the view expressed by the Upper Tribunal in Shahzad (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in "hard" decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS."
Those remarks remain, in my view, and allowing for the terms of the process instruction, apposite to the present three cases.
The appeal of Ms Rodriguez
The appeal of Mr Mandalia
The appeal of Ms Patel
"There is no room in the points-based scheme for a near-miss."
As had also been explained by Stanley Burnton LJ in Miah v Secretary of State for the Home Department  QB 35,  EWCA Civ 261 there can be no "sliding scale" available here "a rule is a rule", as he succinctly put it. That approach has been endorsed by the Supreme Court, in the context of the Article 8 argument there advanced, in Patel v Secretary of State for the Home Department  3 WLR 1517,  UKSC 72 (a case, incidentally, involving an appeal from aspects of the decision of the Court of Appeal in Alam).
(2) I would refuse to set aside the grant of permission to appeal to Mr Mandalia but would dismiss his appeal.
(3) I would dismiss the appeal of Ms Patel.
Sir Stanley Burnton:
Lord Justice Pitchford: