New Judgment: Mandalia v Secretary of State for the Home Department  UKSC 59
14 Wednesday Oct 2015
On appeal from:  EWCA Civ 2
The Supreme Court has unanimously allowed the appellant’s appeal, quashing the refusal of his visa extension application. The appellant had challenged the failure of the UK Border Agency to exercise a degree of flexibility in handling his visa application, where he had provided bank statement covering a consecutive period of only 22 days, where a 28-day requirement existed. The appellant had otherwise fulfilled the financial criteria.
The appellant argued that the Agency had acted unlawfully in not adhering to the Process Instruction guidance which provided for flexibility where applicants had failed to provide information. He contended that he ought to have been invited to supply further bank statements, rather than simply having his application refused.
The Process Instruction was not considered by the First-tier Tribunal and the issue was also not considered by the Upper Tribunal due to confusion over grounds of appeal. The Court of Appeal dismissed the appellant’s appeal on this point, despite accepting that it had jurisdiction to consider the issue.
Lord Wilson delivered the only judgment in this case. The court stated that it was a basic public law right that individuals were entitled to have their cases considered under policies adopted by the executive, provided that the policy fit within the exercise of discretion conferred by statute. In this case the Process Instructions amounted to a lawful exercise of power conferred under the Immigration Act 1971, s 4(1). The court, however, had to determine the correct interpretation of the instructions, which was a question of law.
The Process Instruction provided for some limited flexibility where requisite evidence had been omitted. It allowed for information to be requested where more evidence existed or where there was a possibility more information existed. The court held that a caseworker ought to have followed the Process Instruction and requested the appellant to provide statements which covered the additional 6 days of the 28-day period. The refusal of the application was therefore unlawful.
To watching the hearing please visit: Supreme Court website