New Judgment: Mandalia v Secretary of State for the Home Department [2015] UKSC 59
14 Wednesday Oct 2015
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On appeal from: [2014] 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.
For judgment, please download: [2015] UKSC 59
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII
To watching the hearing please visit: Supreme Court website
1 comment
JAMES WILLIAM GILLIAM said:
04/02/2016 at 18:22
I’m a first year LLB candidate at the University of London International Programmes. Our case note assignment is EK (Ivory Coast) I’ve started a spirited discussion on our student forum. I find that the Mandalia case have a corollary and the below is a copy of my last post. The feeling in the UK legal community is that EK (Ivory Coast) is ripe for the UKSC.
If you reread the relevant part of the Supreme Court decision above – in essence it says that the applicant:
“…should be given the benefit of the doubt “[w]here there is uncertainty as to whether evidence exists, benefit should be given to the applicant and the evidence should be requested” [27].
“…bank statements “missing from a series” were only one example of further evidence which should be requested, and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt [34]. Conferred with that degree of flexibility, a caseworker should have followed the Process Instruction by requesting Mr Mandalia to provide the statement(s) which covered the first six days of the 28-day period….”
Because the caseworker in Mandalia’s case did not request the missing information – when s/he should have – the Supreme Court found that the refusal of the application was ‘unlawful’.
In our EK case the caseworker failed to inform EK that her CAS had been rescinded by St. Stephens – for whatever reason – requesting that EK correct the defect – giving her the opportunity to obtain and resubmit a valid CAS from St. Stephens – before denying her Tier 4 application to remain in the UK. This is Lord Floyd’s opinion in orbiter – with which – I totally agree.
Paraphrasing Lord Floyd: The fact that the secretary did ‘not know’ the reason for the withdrawal gave rise to a ‘duty’ to investigate and if the Secretary was ‘not’ entitled to assume that CAS was withdrawn for ‘good reason’ or that the applicant was ‘aware’ of the withdrawal or if the Secretary could not ‘be sure’ that the CAS had been withdrawn for a ‘good reason’ – a decision to ‘reject’ the application was not ‘fairly’ arrived at. This, he believed – struck the ‘proper balance’ between the public interests and fairness.
“Individuals have a basic public law right to have their cases considered under whatever policy the executive sees fit to adopt, provided that the policy is a lawful exercise of the discretion conferred by statute. The Process Instruction was a lawful exercise of the power conferred on the Secretary of State under s.4(1) of the Immigration Act 1971.” In Mandalia’s case.
Here is the video on the Mandalia case from the Supreme Court:
http://ukscblog.com/new-judgment-mandalia-v-secretary-of-state-for-the-home-department-2015-uksc-59/
The bottom-line is that policies of the Secretary of State are Statutory Instruments and as such are subject to judicial review as exemplified in Mandalia and EK.
Interesting that our study guide or past exams really doesn’t consider Statutory Instruments or Delegated Legislation – yet the EK case seems to be at the very core of judicial review of that type of legislation. No wonder that so many of you consider that the Secretary of State was in the right and EK was wrong.
The question is – am I on the right track?