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Sean O'BeirneThe Supreme Court considered whether the Secretary of State had acted unlawfully in refusing an application without following her published guidance.

Background 

Mr Mandalia applied to extend his student visa on 7 February 2012. The rules in effect at the time required him to submit a bank statement or bank statements showing that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than one month before the date of application.

Mr Mandalia failed to do so, enclosing with his application a bank statement (numbered 64) showing a minimum balance of £11,018.34 but only covering a 22 day period. Having failed to provide evidence of his balance for required period Mr Mandalia’s application was refused and directions of his removal were set.

The published policy

Before Mr Mandalia applied the UK Border Agency had issued a process instruction which gave caseworkers some flexibility where applications were not accompanied by requisite evidence, for example when “bank statement [was] missing from a series”.

The process instruction stated that where additional information would lead to the approval of an application the applicant could be contacted by a caseworker to provide that information. If there was uncertainty as to whether that evidence existed the benefit should be given to the applicant and the evidence should be requested.

The proceedings 

Mr Mandalia appealed to the First Tier Tribunal (IAC). He represented himself and enclosed, with his notice of appeal, bank statements numbered 62 and 63 covering the missing six days. They showed that on each of those days Mr Mandalia’s balance had been over £11,127.98. However, the statements were inadmissible before the Tribunal (Nationality, Immigration and Asylum Act 2002, s 85A). Mr Mandalia’s appeal was dismissed.

Having obtained representatives and through them becoming aware the process instruction Mr Mandalia appealed to the Upper Tribunal. He argued that in refusing his application without first having drawn his attention to his failure to demonstrate that he had held the requisite funds for the full 28 days the UK Border Agency had departed from its policy. The Upper Tribunal did not consider that argument instead focusing on and allowing Mr Mandalia’s appeal in relation to the removal direction against him.

Mr Mandalia again challenged his refusal on the basis of the process instruction before the Court of Appeal but his appeal was dismissed.

UKSC Judgment 

The Supreme Court unanimously allowed the appeal, quashing the refusal of his visa extension application and overturning the Court of Appeal’s judgment.

Lord Wilson delivered the only judgment. He held that in refusing Mr Mandalia’s application without first inviting him to supply further bank statements to show that he had met the 28 day requirement the Secretary of State had acted unlawfully.

Lord Wilson reasoned that where a public authority, such as the UK Border Agency, has publicised the way in which it proposes to act the courts will require the public authority to act in that way unless there is good reason to do so (R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363).

He held that the process instruction was a lawful exercise of power conferred on the Secretary of State by the executive and was not so rigid as to amount to a fetter of the decision maker’s discretion. As no reason for departing from the policy had been cited either in Mr Mandalia’s refusal or before the Court Lord Wilson determined that the Secretary of State had no lawful basis from departing from her policy. (R (Lumba) v Secretary of state for the Home Department (JUSTICE intervening) [2011] UKSC 12).

In the Secretary of State’s view the process instruction was not applicable to Mr Mandalia’s because the solitary statement provided by Mr Mandalia did not constitute a series. Therefore, the argument followed, this was not a “missing from a series” case. She argued, relying on R (Gu) v Secretary of State for the Home Department [2014] EWHC 1634 (Admin), that only once the start and end of a series had been established, could something be missing from the series.

Lord Wilson rejected that argument overturning Gu. He held that it would have been obvious to the caseworker that statement 64 was the last in a series of statements and therefore the preceding statements were missing from the series and should have been requested. Lord Wilson stated that, properly interpreted, the process instruction obliged the caseworker to first have invited Mr Mandalia to repair the deficit in his evidence before being in a position to refuse the application.

Comment

The process instruction has been withdrawn and replaced by a provision in the Immigration Rules (paragraph 245AA). The encouragement to contact an applicant remains where “some of the documents in a sequence have been omitted”. The Supreme Court’s judgment in this case will be useful authority for similar “sequence” or “series” cases although the failure to provide an opportunity to correct such omissions will now be a matter for administrative review.

The Supreme Court’s judgment in this case is also a reminder that public bodies who have published policy will be expected by the courts to have followed that policy unless they can demonstrate good reasons for departing from it.

It was observed by the Court that the present immigration system has removed much of the discretion previously afforded to caseworkers although many of the “hard cases” have “inevitably attracted the sympathy of the judges”. Post Immigration Act 2014 the opportunity to bring those hard cases to the courts has decreased. Those subject to refusals have had the opportunity to enjoy the sympathy of a judge reduced and it is unfortunate that it will now be more difficult for the courts to perform the delicate rebalancing exercise they had been performing so well.