Mandalia v Secretary of State for theHome Department
| Jurisdiction | England & Wales |
| Judge | Lord Wilson |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] UKSC 59 |
| Date | 14 October 2015 |
| Court | Supreme Court |
[2015] UKSC 59
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Abid Mahmood Nazmun Ismail
(Instructed by Fountain Solicitors)
Respondent
James Eadie QC Mathew Gullick
(Instructed by The Government Legal Department)
Heard on 7 May 2015
(with whom Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agree)
In 2008 the appellant, Mr Mandalia, who was then aged 25, came from India to the UK in order to study. His visa, as extended, was due to expire on 9 February 2012. On 7 February 2012 he applied to the UK Border Agency ("the agency") for a further extension of it in order to study accountancy. The rules referable to his type of application were that it had to be accompanied by a bank statement or statements showing that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than a month prior to the date of his application. Mr Mandalia accompanied his application with a bank statement but it showed that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application. The statement which he provided did not cover six of the requisite 28 days. The extra coverage might have been either of the six days immediately following the period of 22 days covered by his statement or of the six days immediately preceding it; but in what follows it will be convenient to address the deficit in his coverage as being the latter. The agency refused Mr Mandalia's application for a further extension. The question is: did it act unlawfully in refusing his application without having first invited him to supply a further bank statement or statements which showed that he had also held at least £5,400 throughout those six preceding days? On 20 January 2014 the Court of Appeal, by a judgment delivered by Davis LJ with which Pitchford LJ and Sir Stanley Burnton agreed, gave a negative answer to that question: [2014] EWCA Civ 2, [2014] Imm AR 588. Mr Mandalia's appeal to this court requires us to consider, in particular, the agency's instructions to caseworkers which then applied to their processing of such applications.
In March 2006 the Secretary of State presented to Parliament a White Paper entitled "A Points-Based System: Making Migration Work for Britain" Cm 6741. In Australia the rules for controlling immigration for the purposes of work or study had been encompassed in a points-based system and the White Paper heralded the introduction of an analogous system in the UK for the control of immigration for such purposes from outside the EU. According to the White Paper a key outcome of the system would be "a more efficient, transparent and objective application process" (paragraphs 3, 25). The system was introduced into the Immigration Rules ("the rules") as "Part 6A: POINTS-BASED SYSTEM", which became operative in stages beginning in November 2008. Since becoming operative, the provisions of Part 6A, including the appendices to it, have been amended on numerous occasions. In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291, Jackson LJ observed at para 4 that they had "now achieved a degree of complexity which even the Byzantine emperors would have envied". On any view, and contrary to a forecast in the White Paper, it is difficult for applicants, for many of whom English is not even their first language, to navigate their way around the requirements. It may be, however, that, as intended, the system is not difficult for caseworkers to administer. Certainly they have to a substantial extent been relieved of the obligation to consider whether to exercise discretions in their processing of applications. The sharp edges of the rules have cut out hard cases which have found their way to the courts and which have inevitably attracted at any rate the sympathy of the judges and sometimes – I speak for myself – nascent reservations about the suitability of the system which have not been easy to suppress. But suppressed they must be. For the management of this type of immigration, in principle highly valuable for the UK, is a profound social challenge, of which the complexities are beyond the understanding of the courts; and, by not exercising its right to disapprove Part 6A of the rules, Parliament has indorsed the Secretary of State's considered opinion that a points-based system is the optimum mechanism for achieving management of it.
The points-based system has five tiers. Into Tier 1 fall highly skilled workers, entrepreneurs and investors. Into Tier 2 fall ordinary skilled workers if sponsored by a UK employer. Tier 3, designated for certain low-skilled migrants, has never been brought into operation. Into Tier 4 fall students if sponsored by educational establishments and they are subdivided into "General" students, broadly encompassing adults, and "Child" students, broadly encompassing minors. Into Tier 5 fall temporary workers.
Mr Mandalia's application was therefore for leave to remain in the UK as a Tier 4 (General) Student.
Mr Mandalia wished to become a certified accountant by pursuing a two-year course of study at the BPP University College of Professional Studies. The college furnished him with a document entitled "Confirmation of Acceptance for Studies", by which he secured the points which satisfied requirement (c) of Rule 245ZX of the rules and paragraph 113 of "Appendix A: Attributes".
But requirement (d) of Rule 245ZX obliged Mr Mandalia also to secure points under "Appendix C: Maintenance (Funds)". An understanding of requirement (d) is achieved only by travel through seven stages.
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.
(b) …
(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.
The rules therefore required Mr Mandalia to demonstrate, in particular by the provision of bank statements, that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than 7 January 2012.
Mr Mandalia completed the form appropriate to an application for leave to remain as a Tier 4 (General) Student. It ran to 43 pages. Section L of it was entitled "Maintenance (Funds)". Section L7 said:
"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".
The bank statement which Mr Mandalia enclosed with his application form, submitted by post with the requisite fee on 6 February 2012 and received by the agency on the following day, was a statement relating to a current account held in his name with HSBC. It covered the period from 29 December 2011 to 19 January 2012, namely 22 days. Importantly the statement was numbered sheet 64 and the opening entry for 29 December 2011 was a credit balance "brought forward" of £11,090.60. The closing balance was a credit balance "carried forward" of £12,071.05. Transactions occurring between those dates amounted only to eight modest debits and two less modest credits. The balance was at its lowest on 6 January 2012: it was then £11,018.34.
By letter to Mr Mandalia dated 8 February 2012, the agency acknowledged receipt of his application and said that it would be passed to a casework unit. The agency added:
"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."
By letter to Mr Mandalia dated 21 April 2012, the agency, which had made no further contact with him following its letter dated 8...
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