Wimal Mudiyanselage v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Underhill,Sir Colin Rimer |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] EWCA Civ 65 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C7/2014/3891 C7/2016/1416 C6/2017/0067 C7/2016/2486 C6/2016/0702 |
| Date | 30 January 2018 |
[2018] EWCA Civ 65
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION, Sir Brian Leveson
Lord Justice Underhill
and
Sir Colin Rimer
Case No: C7/2014/3891
C7/2016/0570
C7/2016/1416
C6/2017/0067
C7/2016/2486
C6/2016/0702
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
UTJ Craig, UTJ Gill, Deputy UTJ Woodcraft, UTJ Peter Lane, UTJ Jordan and UTJ Freeman
Royal Courts of Justice
Strand, London, WC2A 2LL
No appearance for the Appellant in Mudiyanselage
Mr Sajid Mustafa (instructed by Solicitors' Inn) for the Appellant in Khan
No appearance for the Appellant in MA (Pakistan)
Mr Shahadoth Karim (instructed by Ineyab Solicitors) for the Appellant in Negbenebor
Mr Darryl Balroop (instructed by Moorehouse Solicitors) for the Appellant in Igwe & Others
Mr Edward Nicholson (instructed by Direct Access) for the Appellants in Kokab
Mr Tom Poole (instructed by the Treasury Solicitor) for the Respondent in MA (Pakistan), Khan and Mudiyanselage
Mr Zane Malik (instructed by the Treasury Solicitor) for the Respondent in Negbenebor and Igwe
Mr Ben Keith (instructed by the Treasury Solicitor) for the Respondent in Kokab
Hearing dates: 8 th & 9 th November 2017
Further written submissions 14 th November 2017
Approved Judgment
INTRODUCTION
These six appeals were listed, in two groups of three, on consecutive days before the same constitution of this Court because they raised issues about an area of immigration law commonly labelled “evidential flexibility”. The first group consisted of Mudiyanselage, Khan and MA (Pakistan); and the second of Negbenebor, Igwe and Kokab. The Secretary of State, who is the Respondent in the first five cases, instructed Mr Tom Poole in the cases listed on the first day and he gave us a most lucid and helpful overview of the field. She instructed Mr Zane Malik in Negbenebor and Igwe, and he too provided a clear and comprehensive skeleton argument. As for the individual Appellants, Mr Khan was represented by Mr Sajid Mustafa, Ms Negbenebor by Mr Shahadoth Karim and Ms Igwe by Mr Darryl Balroop. For reasons which I explain below, there was no appearance in the cases of Mudiyanselage and MA (Pakistan). In Kokab – which, as will appear, is of a rather different character from the other cases – the Appellants were represented by Mr Edward Nicholson and the Entry Clearance Officer (“the ECO”) by Mr Ben Keith.
It will be convenient if I start by considering the effect of the Rules and the guidance relevant to evidential flexibility generally, together with the case-law, before addressing the individual appeals. To some extent that exercise will determine the issues raised in at least the first five appeals.
THE BACKGROUND LAW
INTRODUCTORY
The issue of evidential flexibility arises in relation to the Points-Based System (“the PBS”) which governs the grant of leave to enter and leave to remain for would-be migrant workers and students. In his judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, to the substance of which I shall return in due course, Lord Wilson gave a short introduction to the PBS in the following terms (pp. 4599–50):
“2. 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. …
3. 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.”
(The passage which I have omitted at the end of para. 2 is reproduced at para. 43 below, where it is more directly apposite.)
The basic structure of the rules with which we are concerned is as follows. Part 6A comprises a series of paragraphs all starting “245” but distinguished, in a rebarbative system which makes navigation far from straightforward, by a series of following letters from (currently) AAA to ZZE. These set out a number of general provisions together with the requirements which applicants under the various tiers must satisfy. Some of those requirements relate to the number of points which an applicant must qualify for under various Appendices. In particular Appendix A prescribes the points which applicants for each tier must score for “Attributes” and Appendix C prescribes the points for “Maintenance (Funds)”: the points available are set out in a series of tables, but the requirements of the table may be amplified in a further paragraph or paragraphs.
In order to prove that they satisfy the relevant requirements applicants are required to provide “specified documents”. Typically the requirements as regards specified documents are set out in a separate paragraph of the relevant Appendix with an “SD” suffix, though sometimes they appear as part of the substantive provision. Examples appear in the individual cases which we consider below – see paras. 81 and 99 (both from paragraph 41-SD of Appendix A). The provisions in question identify such matters as who the documents should emanate from, the information they should contain, the dates that such information should cover and their format (e.g. that they should be on the formal paper of the issuing institution).
Paragraph 39B of the Immigration Rules contains some general provisions about specified documents. It reads (so far as material):
“(a) Where these Rules state that specified documents must be provided, that means documents specified in these Rules as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence.
(b) Where these Rules specify documents that are to be provided, those documents are considered to be specified documents, whether or not they are named as such, and as such are subject to the requirements in (c) to (f) below.
(c) If the Entry Clearance Officer or Secretary of State has reasonable cause to doubt the genuineness of any document submitted by an applicant which is, or which purports to be, a specified document under these Rules, and having taken reasonable steps to verify the document is unable to verify that it is genuine, the document will be discounted for the purposes of this application.
(d) Specified documents must be originals, not copies, except where stated otherwise.
(e)–(f) …”
The requirements of Part 6A, and in particular the requirements about specified documents, are highly prescriptive, and it is easy for applicants to make mistakes in seeking to comply with them. In order to mitigate the potential harshness of that state of affairs the Secretary of State has since 2009 issued guidance for case-workers about the circumstances in which they may show a degree of flexibility in dealing with non-compliant applications. This was initially in the form of a “process instruction”; but since March 2013 it has taken the form of published Guidance, entitled “Points-based System – Evidential Flexibility” (“the Guidance”). I will refer to the provisions of the process instruction and the Guidance as they stood from time to time as “the evidential flexibility policy” (“EFP”). The Secretary of State in due course decided that the issue of evidential flexibility should also be covered in the Rules themselves, and with effect from 6 September 2012 a paragraph 245AA was inserted into Part 6A, headed “Documents not Submitted with Applications”. From that point on paragraph 245AA and the EFP existed in parallel; but, as will appear, their provisions were not always consistent with one another.
The terms of both the EFP and paragraph 245AA have been revised on several occasions. It is of course of cardinal importance in any immigration case to identify the version of any applicable rule or policy current at the time of the material decision. 1 The versions of the Guidance and of paragraph 245AA applicable are not the same in all the cases before us, and in any event it is necessary in order to understand the case-law to appreciate what versions were in force at the relevant dates. I should accordingly trace the relevant histories in some detail.
THE PROCESS INSTRUCTION
The process...
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