UKSC 59
On appeal from:  EWCA Civ 2
Mandalia (Appellant) v Secretary of State for the Home Department (Respondent)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 7 May 2015
(Instructed by Fountain Solicitors)
James Eadie QC
(Instructed by The Government Legal Department)
LORD WILSON: (with whom Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agree)
i. Paragraph 1A of Appendix C provided:
"(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application.
(c) If the applicant is applying as a Tier 4 migrant, the applicant must have had the funds referred to in (a) above for a consecutive 28-day period of time."
The relevant part of Appendix C was in paragraphs 10 to 14.
ii. Paragraph 10 provided that, as a Tier 4 (General) Student, Mr Mandalia had to score ten points for funds.
iii. Paragraph 11 provided that he would secure ten points only if the funds shown in tabulated form were available to him "in the manner specified in paragraph 13".
iv. The table in paragraph 11 required him to show not only funds with which to pay the fees for the first year of the course (being a requirement which Mr Mandalia satisfied) but also, and here I refer to the figures in the table as they stood on 7 February 2012, £600 per month for nine months (ie £5,400), as evidence of his ability to maintain himself while pursuing the course.
v. Paragraph 13 provided that funds would be available to Mr Mandalia only where "specified documents" so demonstrated.
vi. Rule 245A of the rules, as it stood on 7 February 2012, provided that "specified documents" meant documents specified by the Secretary of State in a publication entitled "Tier 4 of the Points Based System – Policy Guidance" ("the policy guidance").
vii. The version of the policy guidance operative on 7 February 2012, namely the version dated July 2011, made clear, at para 182, that the consecutive 28-day period identified in para 1A(c) of Appendix C to the rules was a period ending no earlier than a month prior to the date of the application and, at para 188, that, of the five types of document which could demonstrate availability of the funds, one was Mr Mandalia's bank statements.
Mr Mandalia's Application
"The student must have £600 for each calendar month of their course up to a maximum of nine months. … Please state what this amount is:"
In the box Mr Mandalia wrote "£5,400". Section L24 said:
"Please tick to confirm the documents submitted as supporting evidence to show the student has access to the required amount of money for maintenance and funds."
Mr Mandalia ticked the first box, entitled "Personal bank or building society statements".
"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 you what action you need to take to rectify the problem."
"Before filling in this section of the form, the student should refer to the Immigration Rules … the help text leaflet available with the form and … Policy Guidance …"
The respective links to gaining access to the rules and to the policy guidance on the agency's website were duly set out within that sentence. So the Secretary of State is able to say that, were an applicant such as Mr Mandalia to follow the advice set out at the beginning of section L, he would, on arrival at Rule 245ZX of the rules and at para 1A of Appendix C, learn of the 28-day requirement; and that, on arrival at para 182 of the policy guidance, he would notice it again and would also learn that the 28-day period was required to end no earlier than a month prior to the date of the application.
The Process Instruction
"In response to significant feedback from the caseworking teams, as well as from our customers, from August 2009 a flexible process was adopted allowing PBS caseworkers to invite sponsors and applicants to correct minor errors or omissions in applications both main and dependant submitted under Tiers 1, 2, 4 and 5.
The instruction enabled caseworkers to query details or request further information, such as a missing wage slip or bank statement from a sequence. Three working days [were] given to the customer to provide the requested information.
This instruction only applied to cases which would be refused solely on the absence of a piece of evidence or information. Where the application would fall for refusal even if the missing evidence was submitted, a request to submit this further information would not be made.
The introduction of this instruction resulted in a reduced refusal rate. However, those that fell for refusal where multiple pieces of information were missing were often successful on appeal.
Following analysis of allowed appeals and feedback from the National Audit Office … and Chief Inspector …, the original Evidential Flexibility instruction has been reviewed to meet the recommendations put forward in these reports …
As such, there have been two significant changes to the original Evidential Flexibility instruction:
1) The time given to applicants to produce additional evidence has been increased … 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):
1) bank statements missing from a series;
The evidence listed in Annex A is not exhaustive, but provides caseworkers with guidance as to the circumstances when evidence can be requested."
In Annex A it was reiterated that it might be appropriate to ask an applicant under Tier 4 to provide "[m]issing bank statements from a series."
The Legal Effect of Policy
"The lawful exercise of [statutory] powers can also be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such a policy gives rise."
Since 2001, however, there has been some departure from the ascription of the legal effect of policy to the doctrine of legitimate expectation. Invocation of the doctrine is strained in circumstances in which those who invoke it were, like Mr Mandalia, unaware of the policy until after the determination adverse to them was made; and also strained in circumstances in which reliance is placed on guidance issued by one public body to another, for example by the Department of the Environment to local planning authorities (see R (WL) (Congo) v Secretary of State for the Home Department  EWCA Civ 111,  1 WLR 2168, para 58). So the applicant's right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated by Laws LJ in R (Nadarajah) v Secretary of State for the Home Department  EWCA Civ 1363, as follows:
"68 … Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public."
"35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute."
There is no doubt that the implementation of the process instruction would have been a lawful exercise of the power conferred on the Secretary of State by section 4(1) of the Immigration Act 1971 to give or vary leave to remain in the UK.
"21 … it is a well established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers."
But there was ample flexibility in the process instruction to save it from amounting to a fetter on the discretion of the caseworkers. Lord Dyson had also said:
"26 … a decision-maker must follow his published policy … unless there are good reasons for not doing so."
But the Secretary of State does not argue that there were good reasons for not following the process instruction in the case of Mr Mandalia. Her argument is instead that, properly interpreted, the process instruction did not require the caseworker to alert Mr Mandalia to the deficit in his evidence before refusing his application. So the search is for the proper interpretation of the process instruction, no more and no less. Indeed in that regard it is now clear that its interpretation is a matter of law which the court must therefore decide for itself: R (SK (Zimbabwe)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening)  UKSC 23,  1 WLR 1299, para 36, Lord Hope of Craighead). Previous suggestions that the courts should adopt the Secretary of State's own interpretation of her immigration policies unless it is unreasonable, made for example in Gangadeen and Jurawan v Secretary of State for the Home Department  Imm AR 106 at p 115, are therefore inaccurate.
Interpretation of the Process Instruction
"102 … this was not a "missing sequence" case; and it would again have been complete speculation on the part of the Secretary of State as to whether bank statements – if available at all – for the preceding period or the succeeding period would have shown the availability of funds in the required amounts."
The Secretary of State concedes that a bank statement numbered 64 clearly indicates that statements for the preceding period are "available"; but otherwise she commends the analysis of Davis LJ. Indeed in R (Gu) v Secretary of State for the Home Department  EWHC 1634 (Admin),  1 All ER 363, Foskett J adopted it. The facts in the Gu case were almost identical to those in the present case but, by the date of Mr Gu's application, the process instruction had been withdrawn and instead the court had to consider the references in the first version of rule 245AA to a document omitted from a "sequence" as well as to a bank statement missing from a "series". In dismissing Mr Gu's application for judicial review of the refusal of his application, Foskett J held:
"24 … something cannot be 'missing' from a sequence until the sequence itself exists. To my mind that means that at least the start and the end of the sequence must be in evidence for the sequence to exist. Something missing from it can only, therefore, be from within those two limits."
Thus emboldened by the analysis of two highly respected judges, the Secretary of State submits that it is only when the applicant has provided the caseworker with what she calls two "pillars", namely the pillar which marks the start of a series and the pillar which marks its end, that the caseworker can properly conclude that something is missing from the series which he should invite the applicant to provide.
a) in the introduction that there was now no limit on the amount of information that could be requested, provided that the request was not speculative;
b) in step three that bank statements missing from a series represented only an example of the further evidence which should be requested; and
c) in step four that, where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested.