Secretary of State for the Home Department v Rodriguez

These two appeals by individual applicants and one application by the Secretary of State for permission to appeal (with appeal to follow if permission is granted), which were listed to come on for hearing at the same time, raise a common issue.

The context is this. Each individual applicant was a foreign national seeking leave as a Tier 4 (General) student migrant to remain for the purpose of study in the United Kingdom under the Points Based System (“PBS”) contained in Part 6A of the Immigration Rules. Each submitted an application which failed to supply evidence in the form of bank statements, pursuant to the relevant Immigration Rules, sufficient to attract an award of the points needed to satisfy the maintenance funding requirements of Appendix C to the Immigration Rules. The applications were accordingly refused. In point of fact, each applicant had other available funds which – had their details been fully provided with the applications – would have sufficed to satisfy the maintenance funding requirements. Each complains that, instead of refusing their applications, the Secretary of State was obliged to have applied her policy known as the “Evidential Flexibility policy” and should have first contacted them to enable them to remedy the deficiencies in their applications: which they could and would have done.

The common issue thus is whether the Secretary of State was required to afford them such an opportunity before refusing their applications.

On this issue the applicant Jovy Rodriguez failed in the First-tier Tribunal but succeeded on appeal in the Upper Tribunal. The applicant Manish Mandalia failed in the First-tier Tribunal and the point was not (for reasons I will come on to explain) dealt with in the Upper Tribunal. The applicant Falguniben Patel succeeded in the First-tier Tribunal but failed on appeal in the Upper Tribunal.

For all three cases, as was common ground before us, what is primarily in issue is the correctness of the decision and reasoning of the Upper Tribunal in Ms Rodriguez’s case. That decision is reported: [2013] INLR 467, [2013] UKUT 42 (1AC). It has, and has had, a potential application for other comparable cases; and we were told that scores of cases potentially may be affected by the outcome of these present appeals. This, apparently, is still so notwithstanding the intervening lapse of time and notwithstanding also that, in the intervening period, the position has become the subject of new Immigration Rules.

Unfortunately matters have also become complicated for procedural reasons.

The complications are that with regard to the application in Ms Rodriguez’s case, the Secretary of State had been refused permission to appeal by the Upper Tribunal, in circumstances where the application for permission to appeal was made some 28 days out of time. Further, the Secretary of State has also since applied to adduce evidence – in particular in the form of a substantial witness statement (with exhibits) of a member of the Immigration and Border Policy Directorate – dated 22 August 2013. Ms Rodriguez opposes the application for permission to appeal and also opposes the application to adduce further evidence.

In the case of Mr Mandalia, permission to appeal was granted to the applicant on the papers by Sullivan LJ on 21 May 2013. But the Secretary of State has since applied to set aside that grant of permission of appeal, contending that, in the circumstances which occurred in the Upper Tribunal, this court had and has no jurisdiction to entertain any appeal.

At least in the appeal of Ms Patel, for which permission to appeal was granted on the papers by Moore-Bick LJ on 31 July 2013, no procedural difficulty arises.

The background facts and the course of the respective proceedings can be summarised as follows.

Ms Rodriguez is a national of the Philippines, born on 19 September 1980. She was granted leave to enter the United Kingdom as a student on 15 November 2010 until 1 February 2012. On 31 January 2012 she applied for further leave to remain. Having completed a course in Tourism and Hospitality Management she had been granted admission to the London College of Social and Management Sciences for the purposes of a two year diploma course in Business and Administrative Management. Her application for further leave to remain as a student was by reference to the Tier 4 (General) requirements. The prescribed application form was a lengthy document.

It has at all times been common ground that, in accordance with Appendix C of the Immigration Rules, Ms Rodriguez was required to show possession of not less than £1,200 over the entirety of the necessary 28 consecutive days. With her application Ms Rodriguez submitted, among other things, a bank statement from Lloyds TSB. According to the subsequent findings of the First-tier Tribunal judge, that bank statement covered the period 11 January to 24 January 2012 (stamped on 27 January 2012). However, this may have been an erroneous factual finding because as Mr Gullick, appearing on behalf of the Secretary of State, points out the actual decision letter of the Secretary of State shows that a statement covering at least the full 28 day period had been before the Secretary of State. But more importantly for present purposes, the statement showed a balance of not less than £1,200 for the period, save that in between 20 and 23 January 2012 the balance fell to £903.74.

Ms Rodriguez says that shortly after she submitted the application she received a letter from the Home Office acknowledging receipt. It is perhaps surprising, if such a letter was received, that she did not keep it. Moreover, we were told that there is no record on the Home Office database that such a letter was sent to Ms Rodriguez – although there was produced to us a copy of the letter dated 16 February 2012 sent to Ms Rodriguez relating to a required biometric enrolment appointment. The First-tier Tribunal judge, whilst referring to her evidence on this, made no express finding that she had received such a letter: albeit he found her, in general terms, to be an honest witness. The Upper Tribunal in due course proceeded on the footing that she had received such a letter. Ms Rodriguez was able to produce copies of two such letters apparently sent to other students which she claimed were in the same form as the one she had received. Amongst other things, it was said (we were shown copies of the sample letters provided):

Her application was refused by decision of the Secretary of State on 21 April 2012 for three reasons. The first two are no longer relevant. The third was to the effect that the bank statement provided (for the period 28 December 2011 to 24 January 2012, as the letter stated) did not disclose possession of the requisite £1,200 over the entire period – there was the shortfall in the period 20 to 23 January 2012.

Ms Rodriguez appealed. She succeeded on two of the grounds in dispute. But she failed on this third ground. The First-tier Tribunal judge, in his determination promulgated on 3 July 2012, found that she had failed to provide evidence in her application to show that she had the required funds of £1,200 for the requisite 28 day period.

In preparation for the hearing before the First-tier Tribunal, Ms Rodriguez had, on 12 June 2012, sought to put in evidence comprising bank statements from the RCBC Savings Bank in the Philippines showing that she had had additional funds totalling nearly £600 in that account during the entirety of the relevant period. But, having regard to s.85A of the Nationality, Immigration and Asylum Act 2002 (as amended), the judge decided that he could have no regard to that. He held that he could, in this respect, only consider the evidence adduced at the time of the application. Nor had such evidence been put in by the time of the decision of the Secretary of State. It is accepted before us that the new bank statements sought to be adduced before the First-tier Tribunal were not admissible by reason of s.85A of the 2002 Act.

Ms Rodriguez also had referred the Tribunal to a letter dated 19 May 2011 to individuals styled “Joint Education Task Force Members” from the UK Border Agency (which letter loomed large in the subsequent Upper Tribunal determination). She sought to argue from that that it was policy to contact an applicant in her position to give her a chance to provide the necessary evidence before the application was refused. The judge rejected that. The judge declined to construe that letter as imposing an obligation on caseworkers to contact applicants in such circumstances. He thus dismissed the appeal on the footing that the supplied documentation had not satisfied the requirements of the Immigration Rules. It was deficient in that it did not show she had the funds required and also in that it did not cover the necessary period.

Ms Rodriguez then appealed, with permission, to the Upper Tribunal. Since the correctness or otherwise of that decision is at the heart of these cases before us I will come on to the determination of the Upper Tribunal, promulgated on 16 January 2013, in due course.

Mr Mandalia is a national of India, born on 29 May 1982. He came to the United Kingdom on 11 February 2008 on a student visa, with leave to enter until 30 June 2009. Subsequent applications to remain were granted until 9 February 2012.

On 7 February 2012 he applied for further leave to remain as a student. The Tier 4 (General) requirements applied. His application was accompanied by bank statements. It was and is common ground that, in his particular case, under the requirements of Appendix C to the Immigration Rules he needed to show possession of not less than £5,400 over the relevant continuous 28 day period. The bank statements he supplied with his application showed a credit balance in excess of £11,000 throughout. But – as was conceded – they only covered the period 29 December 2011 to 19 January 2012 (a 22 day period).

On that basis, the Secretary of State refused his application by decision dated 21 April 2012. The applicant had failed to demonstrate the level of funds required for the necessary period and thus could receive no points for the maintenance funding aspect of the application. In addition, by the same decision letter, the Secretary of State notified a decision to remove by direction under s.47 of the Immigration, Asylum and Nationality Act 2006.

At the hearing of his appeal from that decision to the First-tier Tribunal, the applicant is recorded as accepting in his oral evidence that he had “made a mistake” in the documents he had lodged. By this stage, for the purposes of his appeal to the Tribunal, he had put in further bank statements from 29 November 2011 to 19 January 2012, showing continuous possession at all relevant times of not less than £10,500. By this time he was enrolled on an accountancy (ACCA) course.

The judge found that the refusal arose solely from the applicant’s failure to follow the requirements of the Immigration Rules. He dismissed the appeal. The judge observed in the concluding paragraph of his determination that, given the late evidence of the applicant’s finances, it “may well be that another more careful application if submitted would secure the further leave he requires”.

Permission to appeal was refused by the First-tier Tribunal on 20 July 2012. It had among other things been said in the written grounds of appeal advanced that the First-tier Tribunal judge had failed to have regard to the Secretary of State’s Evidential Flexibility policy or to a letter to the applicant dated 8 February 2012 (seemingly corresponding in its terms to the one said to have been sent to Ms Rodriguez). Permission was refused by the First-tier Tribunal, it being said that such grounds had no merit in the light of the decision of the Court of Appeal in Alam & Ors v Secretary of State for the Home Department[2012] EWCA Civ 960.

There was then a renewed application for permission to appeal to the Upper Tribunal. It continued to be maintained that it had been an error of law for the Tribunal not to have had regard to the Evidential Flexibility policy (including the letter of 19 May 2011 on which – as had Ms Rodriguez – Mr Mandalia had also been relying) or to the letter of 8 February 2012 to the applicant. In addition, the separate point was taken that the Secretary of State had had no power to make a s.47 removal decision until after the refusal decision had been notified: see the decision in Ahmadi[2012] UKUT 147 (IAC) (subsequently affirmed by the Court of Appeal: [2013] EWCA Civ 512).

That renewed application for permission to appeal was decided on the papers on 9 October 2012 by Upper Tribunal Judge Allen in these terms:

On the subsequent substantive appeal Upper Tribunal Judge Martin construed the permission to appeal granted as limited to what may be called the Ahmadi point (a view previously taken by Upper Tribunal Judge Peter Lane in giving directions for the appeal hearing). At the substantive appeal it had nevertheless been argued that permission to appeal had been, or should have been, granted on all grounds. But that argument was, by determination promulgated on 12 December 2012, rejected. It was noted that: “That argument has been rejected twice already”. Accordingly, Upper Tribunal Judge Martin did not deal with any Evidential Flexibility policy arguments. The appeal was, however, inevitably allowed in so far as the s.47 decision was concerned, by reason of the Ahmadi point.

The applicant then applied for permission to appeal to the Court of Appeal. He continued to base arguments on the Evidential Flexibility policy and continued to argue that such reliance was not precluded, or at least should not be precluded, by the terms of the original grant of permission to appeal dated 9 October 2012. Permission to appeal to the Court of Appeal was refused by the Upper Tribunal on 10 January 2013.

Thereafter permission to appeal to this court was granted on the papers by Sullivan LJ by reference to the arguments based on the Evidential Flexibility policy and in the light of the decision of the Upper Tribunal in Rodriguez (which had in the interim been decided). No reference was made to whether or not the permission to appeal from the First-tier Tribunal had been limited only to the point about the s.47 decision.

Ms Patel is a national of India, born on 5 March 1986. She entered the United Kingdom with leave to enter as a Tier 4 (General) student migrant on 16 December 2008. Successive grants were made until April 2011. She then applied for further leave to remain as a student.

Her sponsor having been removed from the register of approved educational providers, she was given time to find a new sponsor and required to vary her application for leave to remain by 29 September 2012. She made such an application on 27 September 2012. It was and is common ground that in her particular case, under the requirements of Appendix C to the Immigration Rules, she was required to show that she was in possession of not less than £7,700 for a consecutive 28 day period ending no more than a month prior to the date the application was made.

In the event, as was found and is not challenged, the Lloyds TSB and Barclays Bank bank statements provided by her with her application did not show that she met such requirement in the 28 day period. There was a shortfall of nearly £700 on 30 August 2012. Thus she had not met the requirements of the Immigration Rules and no points could be awarded for maintenance funding. Her application thus failed. So much was decided by decision of the Secretary of State on 8 October 2012. In addition a s.47 decision was also made at the same time.

On appeal, the First-tier Tribunal judge inevitably, in the light of Ahmadi, allowed the appeal against the s.47 decision. As to the other aspect, the applicant had by this stage adduced further materials before the Tribunal to show that she had indeed had sufficient funds to meet the maintenance funding requirement. It was argued that fairness and the Evidential Flexibility policy should be applied in the applicant’s favour. As to that, the judge found that the original specified documentation provided had been “deficient”. However it:

The Secretary of State appealed against that decision, with permission. It was said that the First-tier Tribunal judge had only reached the conclusion he had reached by wrongly taking into account evidence submitted after the decision had been made, contrary to s.85A of the 2002 Act.

On the appeal, Upper Tribunal Judge Renton found that it had been erroneous in law for the First-tier Tribunal to have allowed the appeal so that further evidence could be produced with a view to satisfying the Secretary of State. Remaking the decision, the Upper Tribunal judge found in favour of the Secretary of State and so dismissed the applicant’s appeal.

Upper Tribunal Judge Renton, in his determination promulgated on 12 March 2013, referred to the Upper Tribunal decision in Rodriguez itself. As to that he said:

In granting permission to appeal on the papers, Moore-Bick LJ stated that he could “see no reason why the [Secretary of State] should have thought that the applicant might have other funds to which she had not referred” at the time of the application. Moore-Bick LJ’s particular stated concern was whether, in the light of Rodriguez, the policy said to be disclosed in the UKBA letter of 19 May 2011 required that an applicant’s attention be drawn to “substantive deficiencies” in the materials submitted in support of an application.

It may be noted that, in contrast with the other two cases, no reliance was at any stage sought to be placed in Ms Patel’s case on any letter sent directly to her on receipt of her application, in the terms of those apparently sent to Ms Rodriguez and Mr Mandalia.

The provisions in the Immigration Rules relating to the PBS with regard to Tier 4 (General) Migrants are very complex. Mercifully, it is not necessary to set them all out here, since in all three cases the application of those Rules, and the amounts required to be shown as available maintenance in each particular case, were and are not in dispute. In any event, the relevant statutory background and scheme are helpfully summarised in the case of Alam itself. The relevant Immigration Rules have themselves been amended from time to time. They fell to be applied in the terms subsisting at the date of the relevant applications to the Secretary of State.

In Rule 34A(iii) of the Immigration Rules it is, among other things, provided that where – as here – an application form is specified for use then any section in the form “which is designated as mandatory in the application form and/or related guidance notes” must be completed as specified. It is further stipulated, among other things, that a posted application form “must be accompanied by the photographs and documents specified as mandatory” in the application form and/or related guidance notes. Failure to comply would (by Rule 34C) have the result that “such application or claim will be invalid and will not be considered”.

By paragraph 245ZX(d) it is, among other things, required that applicants such as these “must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C”. That Appendix stipulated the necessary minimum amounts needed to be shown, which depended in part on place of study and established presence in the United Kingdom.

By paragraph 1A of Appendix C, the applicant must “meet the requirements listed below”. Those requirements included – the Rules have been amended from time to time – that the applicant must have the relevant required funds at the date of the application and (if a Tier 4 migrant) must have had them for a consecutive 28 day period. Such period is assessed as at the date of the most recent of the specified documents and must be no earlier than a month before the date of the application.

By paragraph 11 of Appendix C, in order to gain the requisite 10 points the applicant – in cases such as the present – “must provide the specified documents to show that the funds are available to him”. Paragraph 13 states that “funds will be available to the applicant only where the specified documents show” that they are held.

Overall, the Immigration Rules are uncompromising in their stipulations. They, among other things, require the specified documents to be lodged with the application. If the contents of the specified documents are not such as to satisfy the requirements as to maintenance funding, the points will not be awarded and the application will be refused. Given the facts of each of these three cases, it thus is common ground that all three applications fell to be refused by reference to the Immigration Rules.

But this very strictness in the Immigration Rules was potentially capable of producing results which could in some cases be viewed as unduly harsh. No doubt to reflect these concerns, what has been styled the Evidential Flexibility policy was from 2009 operated on behalf of the Secretary of State.

On the admissible materials placed before us there was some vagueness before us as to the implementation of such policy. Further, the policy guidance to caseworkers has been changed over time. With regard to each of the three cases before us, it was at all events accepted that the relevant version of the policy guidance was in the form of the PBS Process Instruction to be found appended, as Appendix B, to the Upper Tribunal determination in Rodriguez.

Subsequently – although in a way not directly material to these present three cases – what was contained in the Evidential Flexibility policy guidance has in effect been incorporated into the Immigration Rules themselves from 6 September 2012. The provisions of such Rules have themselves subsequently been amended: see Rule 245AA. Mr Gullick also provided to us an accompanying Evidential Flexibility guidance document (version 5.0) valid from 7 November 2013.

I turn then to the Evidential Flexibility policy extant in June 2011 and taken to be the version potentially relevant to these three cases (that is, as recorded in the PBS Process Instruction which is Appendix B to the Rodriguez determination). It has to be said that it is not in all respects very clearly drafted. It is to be noted that it is not confined to Tier 4 applications. In its introductory remarks the process instruction explains that a flexible process was first introduced in 2009 allowing caseworkers “to invite sponsors and applicants to correct minor errors or omissions in applications”. The instruction enabled caseworkers “to query details or request further information, such as a missing wage slip or bank statement from a sequence”. Following analysis and review, as it was said, there had been “two significant changes” to the original Evidential Flexibility instruction. These were identified as follows:

The process instruction thereafter sets out the various procedural step sequences with the recommended actions. I need not repeat them all here. They are prefaced by the words (which appear in the corresponding place in the 2009 version of the process instruction) “this procedure describes the steps to take when an application has missing evidence or there is a minor error”. It is to be noted, among other things, that in Step 3 it is said that:

It can be seen, then, that the overall intent was to afford some alleviation to the harshness of the requirements of the Immigration Rules by sanctioning, in certain circumstances, requests for further information from applicants. The question is in these three cases: how far did the process instruction require the relevant caseworker to go?

It was further argued by the applicants before us – and as was accepted by the Upper Tribunal in Rodriguez – that the letter of 19 May 2011 also represented relevant and applicable policy. That was disputed before us by the Secretary of State. It is a central issue on these appeals.

That letter is appended as Appendix A to the determination in Rodriguez, and so it is not necessary to set it out in full here. It was expressly written in the context of the changes to be introduced by s.19 of the UK Borders Act 2007. It may be noted at this stage that the letter explicitly points out that s.19 of the 2007 Act “does not require applicants to do anything different to what they should currently be doing”. It also refers to concerns that the application process should be clear and that “minor errors” could be addressed in the application process. The final paragraph is in these terms:

I think it fair to say that the Upper Tribunal decision in Rodriguez has attracted an amount of debate. Indeed, it might be said that, in his subsequent decision in Patel, Upper Tribunal Judge Renton was not in a clear position to distinguish Rodriguez; and so on one view he seems to have followed an approach to the Evidential Flexibility policy which differs from the approach taken in Rodriguez.

Since the decision in Rodriguez is now reported, and readily available to those interested in this area of immigration law, I can summarise the determination relatively briefly. But I would make a preliminary observation.

Ms Rodriguez represented herself at the hearing of the appeal in the Upper Tribunal on 16 October 2012 (albeit she clearly had first consulted with others as to possible arguments available to her). The Secretary of State was represented by a Senior Home Office Presenting Officer. It seems reasonably clear that the Presenting Officer had not come equipped to deal with the application of what was in the course of the hearing suggested as the relevant policy or as to what extent the letter of 19 May 2011 (appended as Appendix A to the determination) was to be taken as representing applicable policy. Indeed the Presenting Officer had not even adduced – reprehensibly in the view of the Tribunal – the Evidential Flexibility process instruction document, which the Tribunal had sourced for itself from the UKBA website. Thus, in the result, it seems that the Presenting Officer was not in a position substantively to dispute a number of the points being suggested by the Upper Tribunal: as recorded, for example, in paragraphs 11 and 13 of the determination. But at all events it is clear enough that these issues were not being positively conceded.

At least with the considerable benefit of hindsight, the lack of informed debate and argument was unfortunate. Self-evidently this decision, on what was in effect being regarded as a test case, was going to be an important one: not only for Ms Rodriguez but also for others in a position comparable to hers. If the position of the identification and application of the relevant policy was going to be explored, and its true meaning and intent analysed, it called for informed debate. Very often, of course, Tribunals have to manage without any, or any legal, representation of the parties: one of the circumstances, indeed, whereby having a specialised jurisdiction, with judges having their own specialist expertise, is so beneficial. A culture of adjournments is, moreover, most certainly to be avoided. But in the present case, a short adjournment to enable the Presenting Officer to take proper instructions on the points being raised and to investigate the issues might, I incline to think, have been preferable here, given the importance of the issues and the potential ramifications. That remains so even if the Presenting Officer was to be criticised as not having anticipated the potential arguments.

I say this quite apart from the contents of a subsequent witness statement of the Presenting Officer concerned dated 22 August 2013, on which Mr Gullick sought to rely and to the admission of which no objection was raised. It is there said by the Presenting Officer that she was not sufficiently instructed so as to be in a position positively to adduce documentary evidence at the appeal; but that she had sought to advance arguments disputing the ambit of the policy asserted and among other things disputing that the letter of 19 May 2011 could apply to this case.

Be all that as it may, it seems to me that the key conclusions of the Upper Tribunal, to be distilled from its determination, are as follows:

The letter dated 19 May 2011 from UKBA to the Joint Education Task Force Members (set out in Appendix A to the determination) represented applicable promulgated policy and, on its proper interpretation, “heralded unequivocally” the introduction of a new practice whereby all applicants would be notified of the absence of “mandatory evidence” and be given the opportunity to rectify the relevant “informational shortcomings” prior to rejection of the application: paragraph 12.

The Secretary of State failed, when determining Ms Rodriguez’s application, to have regard to that policy as set out in the letter, which was to be regarded as the “dominant policy” so far as this applicant was concerned: paragraphs 11 and 14.

Alternatively, even if the only applicable policy was that contained in the Evidential Flexibility process instruction (set out in Appendix B to the determination), the Secretary of State’s decision was in any event vitiated by the relevant caseworker being unaware of such policy, which was simply ignored: paragraph 15.

The policy enshrined in the Evidential Flexibility process instruction and the letter of 19 May 2011 in substance “unambiguously proclaimed” to the public that the emphasis was being shifted from “mechanistic prescription towards flexibility, discretion and, ultimately, greater fairness to applicants”: paragraph 22.

The decision and approach of the Court of Appeal in Alam was marked by its not having available “the full evidential matrix” considered by the Upper Tribunal and by the failure to discuss the Evidential Flexibility policy, and so could be distinguished: paragraphs 21 and 23.

As I will seek to explain below, I am afraid that I disagree at almost every single stage. But next I turn to the procedural matters arising.

The issues raised in the Rodriguez case, in view of their wider importance, plainly would in the ordinary way, in my view, merit the grant of permission to appeal, even allowing for this being a second stage appeal. That corresponds with the view taken by Sullivan LJ and Moore-Bick LJ in the other two cases.

The problem here is that the application to the Upper Tribunal for permission to appeal to this court was 28 days (20 working days) out of time. (The subsequent application to this court was in time.) That was one – although not the sole – reason for the Upper Tribunal refusing to grant permission to appeal to this court. On the face of it, that was a perfectly valid exercise of discretion. On any view the delay was significant. It is most important that time limits be observed. There cannot, moreover, be one rule for individual applicants and another for the Secretary of State in this regard.

Initially, therefore, I was not very receptive to this application for permission to appeal. It is sought to be explained that the implications of the Upper Tribunal decision had not initially been realised: and thereafter, when they were, it necessitated an amount of internal discussion before an appeal could be launched. But that cannot of itself necessarily be a complete answer. Nor was I at all impressed by the suggestion that, having regard to the observations in paragraph 25 of the judgment in YD (Turkey) v Secretary of State for the Home Department[2006] 1 WLR 1646, [2006] EWCA Civ 52, a delay of not more than 2 months could, in general terms, be considered venial.

However, I have come to the view that, in the circumstances of this particular case, permission to appeal should be granted. (I add that we heard full argument on the substantive issues at the hearing.) I do so essentially because there are strongly arguable points raised here, which have consequences going well beyond the present case. It would also not be altogether satisfactory simply to leave some of such points for decision in the other two cases before us. Moreover, at least some explanation for the delay below has been given.

The next matter is whether leave should be given at this stage to adduce, as fresh evidence, the witness statement of Anna Middleton, of the Work Operational Policy Team, Immigration and Border Policy Directorate, dated 22 August 2013.

This court initially considered her evidence at the hearing de bene esse. Her statement purports to explain the history of the Evidential Flexibility policy from its introduction in 2009 to date, exhibiting the various versions of the process instruction from time to time in place. Had it confined itself to exhibiting the various policy instructions from time to time in place I doubt if this statement would have attracted objection. However, it goes much further than that. Among other things, it purports to provide a running commentary, as it were, on the process instruction and its intent. It also comments at length on the letter of 19 May 2011 appended as Appendix A to the determination of the Upper Tribunal. It states, with an accompanying exhibit which seems to bear the statement out, that the validation project referred to in that letter as being “trialled” related only to Tier 1 (and not, in particular, to Tier 4) applications. Further, the instruction to which the letter referred was itself, she says, a short term piece of guidance introduced in response to the ending of the then Tier 1 (General) category in April 2011: and it applied to Tier 1 applications for a limited period, from 1 April 2011 to 30 June 2011. Moreover, she says that the trial did not relate to specified documents. She also refers to (and exhibits) other documentation said to be relevant, including Policy Guidance specific to Tier 4 of the PBS issued in July 2011.

None of such evidence – whether formally or informally – was, of course, placed before the Upper Tribunal. Such evidence would tend, among other things, to controvert the Upper Tribunal’s assumption that the letter of 19 May 2011 represented policy: let alone, as the Upper Tribunal had thought, “the dominant policy” as regards the applicant. It also would rebut the Upper Tribunal’s view that the letter “heralded unequivocally” the introduction of a new practice. Further, the Upper Tribunal had found (paragraph 16 of the determination) – pointing out that it had had no evidence as to the duration of the trial period – that the application of Ms Rodriguez was made, processed and determined in the trial period. But on this recent evidence this simply was not so. Overall this evidence, if accepted, would tend to show that the Upper Tribunal’s assumption that it had before it “the full evidential matrix” with regard to the policy was misplaced.

Mr de Mello, however, objected to the admission of such evidence at this stage. He said that such evidence could have been adduced before the Upper Tribunal but was not. Further, he submits, it goes against the position of the Presenting Officer at the hearing: who, even if not positively agreeing to the Upper Tribunal’s suggestions, was not in a number of respects in a position substantively to dispute them. Yet further, he says that issues of further disclosure may potentially arise and also that there would have been questions raised, which he would have wished to put, as to certain aspects of the witness statement.

Obviously one must have unease that, in a number of very important respects, the correct position may have been – unknown to the Upper Tribunal at the time – quite contrary to what the Upper Tribunal took it to be. Nevertheless in my view this evidence has been raised too late. It would be unfair, and potentially prejudicial, to Ms Rodriguez for it to be permitted to be adduced now. I therefore would, for my part, refuse permission for this statement to be adduced in evidence before this court. Of course, if there are still any Tribunal cases extant on which such proposed evidence may be material, it would be open to the Secretary of State to apply to adduce it in such proceedings. But that is another matter.

Permission to appeal, as I have said, was granted by Sullivan LJ on 21 May 2013. After the Secretary of State had filed her substantive skeleton argument in opposition to the appeal, there was included in a Respondent’s Notice dated 30 August 2013 an application that the grant to Mr Mandalia of permission to appeal be set aside. The Secretary of State, on further consideration of the papers, had taken the view that this Court had no jurisdiction.

In the ordinary way, the circumstances in which the Court of Appeal will be prepared to intervene by setting aside a grant of permission to appeal are very limited. But the present case involves disputing that the Court of Appeal had, or has, any jurisdiction to entertain an appeal: a point not drawn to the attention of, or otherwise adverted to by, Sullivan LJ.

In such circumstances I would – exceptionally – entertain this application to set aside, notwithstanding the intervening delay. The question then is: is the application well founded?

The position of Mr Gullick is straightforward. He says that the Order of Upper Tribunal Judge Allen of 9 October 2012 is to be read as a whole. By it, he submits, by reference to the Reasons there set out, permission to appeal was limited only to the Ahmadi ground. No permission to appeal was granted, he says, in respect of what may be styled the Evidential Flexibility policy/Alam ground. That, accordingly, was the way in which judges of the Upper Tribunal – and, in particular, Upper Tribunal Judge Martin – subsequently approached matters. For the purposes of s.13 of the Tribunals, Court and Enforcement Act 2007, so the argument goes on, an application for permission to appeal is an excluded decision. Consequently, there is no right of appeal available, since an appeal to this court on a point of law can only be brought from a decision of the Upper Tribunal which is not an excluded decision: see s.13(1) and (8) of the 2007 Act.

The logic of the argument is impeccable. Nor does Mr Mahmood, appearing for Mr Mandalia, dispute that logic. But his, no less straightforward, argument is to dispute the premise. He says that, on its true interpretation, the Order of Upper Tribunal Judge Allen was not limited to the Ahmadi ground.

Having considered the arguments, I agree with Mr Mahmood.

It is true that, as Mr Gullick emphasised, a number of Upper Tribunal judges thereafter in this case have construed the permission as so limited. But while of course one should have regard to those views, they cannot be decisive on the point of interpretation arising.

There is a degree of ambiguity in the Order as made. The actual grant of permission, taken on its own, is unrestricted: “permission to appeal is granted”. That plainly favours Mr Mahmood’s stance. Turning, however, to the Reasons, the first sentence is, I would accept, indicative of the Upper Tribunal judge being flatly against what may be called the Alam point. But equivocation is then introduced in the second sentence by use of the phrase “in particular”: that connotes a wider grant of permission than just on the Ahmadi point. Mr Gullick’s argument in effect involves rewriting the second sentence of the Reasons, either so as notionally to delete the words “in particular” or so as to have it read “in respect of that particular point”. Moreover, the written grounds of appeal before the judge were extensive as to the asserted application of the policy: and Mr Mahmood reminded us that sometimes judges, where minded to give leave on one ground, may be more receptive, in consequence, to giving leave on other grounds. In this regard he referred us, if any authority were needed, to the Tribunal determination in Ferrer[2012] UKUT 00304 (IAC), and in particular to the observations made in paragraphs 22 and 23 of that determination. He suggested that it is quite possible that Upper Tribunal Judge Allen may have had that approach in mind.

This is not at all straightforward. But overall, in the light of the wording of the Order read as a whole, I incline to think that it is to be construed as an unrestricted grant of permission. In any event, if there is ambiguity arising from the language of the Reasons given then I think that such ambiguity is to be resolved in favour of the applicant: particularly where the opening part of the Order concerning the actual grant of permission was unqualified.

This court announced, after hearing oral argument on the point at an early stage of the hearing before us, that the application to set aside the grant of permission was refused. The foregoing represent my reasons for being party to that decision.

It was also suggested to us that general guidance might be given by this court as to how limited grants of permission to appeal are to be framed. I would decline that invitation. To the extent that general guidance is needed for tribunals, it can be found in the Guidance Note 2011/No 1, as amended, issued by Blake J (President) in 2011.

I would, however, add this. The guiding consideration must always be, where it is intended that a grant of permission to appeal is to be limited or restricted, that the grant is unambiguously clear. It thus should, in my view, be regarded as good practice to be followed in such cases that the wording of the actual grant itself is explicit that the permission to appeal is limited or restricted: for example “permission is granted, limited to grounds 1 and 4 [or as the case may be]…” or “permission is granted, limited as hereafter set out…” It is not good practice to give an ostensibly unlimited grant and then to impose limitations in the Reasons thereafter given in the order: indeed such a procedure may only result in the kinds of problems thrown up in the present case. Ultimately, as Blake J said in his Presidential Guidance: “If nevertheless it is decided permission should only be granted on limited or restricted grounds, the judge should state this expressly (and precisely)….”. That is guidance to be followed.

Those procedural complexities having been dealt with, I finally turn to the disposal of the appeals.

The first question is to determine what was the Evidential Flexibility policy applicable at the relevant time. Mr Gullick accepts, indeed avers, that it was to be found in the process instruction appended as Appendix B to the determination in Rodriguez. He accepts that it was incumbent on the caseworkers dealing with these applications to apply such policy to them to the extent required (albeit not more than that). But he disputes that the letter of 19 May 2011 itself represented any such policy or imposed any obligation requiring the Secretary of State to notify the applicants of deficiencies in their applications.

Accordingly it has to be considered whether the letter of 19 May 2011 also formed part of the applicable policy and, if so, what its true ambit was. If it did represent policy, then – on the approach taken and interpretation adopted by the Upper Tribunal – it will have had significant ramifications in loosening the policy previously in place. However, in assessing the position I am required to leave out of account the observations and explanations contained in the statement of Ms Middleton.

It was unclear as to how the letter of 19 May 2011 came to the attention of Ms Rodriguez (and also Mr Mandalia). If this letter were to be regarded as new policy, it would have been helpful to know to what extent it had been formally published or otherwise placed in the public domain as representing policy. We were, during the hearing, told that Ms Rodriguez in fact had been provided for the purposes of her appeal with a copy of the letter by informed friends. It appears to be the case, as we were told, that such letter had been disclosed on at least one request made under the Freedom of Information Act 2000. Mr Mahmood also told us, on instructions, that the letter had been placed on the UKBA website. We were, at all events, shown various determinations of judges of the First-tier Tribunal in other cases where the letter of 19 May 2011 had been sought to be relied on by Tier 4 applicants: with, so far as I can see, a divergence of approach adopted towards it by the judges dealing with such cases.

This is nevertheless not a very promising basis, perhaps, for such a letter being designed, and held out, to represent binding new policy. But, more than that, it would be surprising if so wholesale a relaxation of the Evidential Flexibility policy as the Upper Tribunal considered to be “unequivocally heralded” was intended to be conveyed by means of such a letter. This was a letter addressed to “Joint Education Taskforce Members”, whoever they may be. (Mr Gullick told us that they were “a stakeholder forum comprising representatives of educational organisations to provide an opportunity to discuss immigration issues within the education sector”). Moreover, it was sent, as it in terms says, in the context of the commencement of s.19 of the 2007 Act (relating primarily to restriction on new evidence on appeals in PBS cases and to s.85A of the 2002 Act due to be brought into force on 23 May 2011). The third paragraph of the letter is also unequivocal in its statement that the introduction of the new measure (s.19) does not require applicants to do anything different from what they currently should be doing.

As to the concluding paragraph of the letter, on which the Upper Tribunal placed such emphasis, I cannot see that it is properly to be construed as creating or heralding an entirely new policy approach over and above that set out in the process instruction. As the letter previously explains, it addresses “minor errors” in the application process (following on from the reference to a “measure of flexibility”). The sentence “For example, caseworkers operate a system which allows them to contact applicants to request further documentation or clarification where appropriate” is, to my mind, by its wording referring to existing policy. Moreover the language is permissive (“allows”), not mandatory. Such sentence reflects, even if it does not fully reflect, what the Evidential Flexibility process instruction, as issued in 2009, said, and, as reissued in 2011, was to say. As to the trialling of a validation stage referred to in the last paragraph, there is nothing to show that that was designed to introduce new policy. Indeed, since the Upper Tribunal had no evidence as to the “trial” dates it is, to me at least, rather puzzling that the Upper Tribunal apparently felt able to proceed on the footing that the trial necessarily extended to Ms Rodriguez’s application. In addition, I consider that close scrutiny needs to be given to the use of the words “validation stage” and “mandatory evidence” in the sentence on which the Upper Tribunal placed such reliance. In a context such as the present, such phrases are not to be taken as being used haphazardly. The Immigration Rules themselves – as does the prescribed application form – distinguish between information which is mandatorily required on an application form and information contained in the specified documents. Failure to provide what may be called mandatory information may mean that an application will be rejected at the outset as invalid without further consideration. But a failure to supply specified documents sufficient to establish the required number of points would not cause an application to be rejected at the outset as invalid: rather it would be refused after substantive consideration. This distinction is made clear in the Help Text accessible to all such applicants. That explains that a student will only be considered to have submitted a valid application when the specified particular requirements – including provision of passport, photographs, fee etc and completion of the “mandatory sections” in the application form – have been complied with. The distinction is further fully explained in the judgment of Sullivan LJ in Alam at paragraphs 49 to 51: and it is there emphasised that the distinction is a “real one”. In my view, this particular sentence of the letter of 19 May 2011 is to be read as having regard to that distinction and is to be so interpreted. I do not, with respect, think it bears the very wide interpretation attributed to it by the Upper Tribunal.

I do appreciate that the Upper Tribunal had no evidence before it about that letter or the context in which it was sent. But the very lack of such evidence, taken with the nature of the addressees of such letter and also taken with its actual contents, called for caution before it could confidently be assessed as being not only of “unambiguously clear import” but also as representing policy “unequivocally heralding the introduction of a new practice”. In my view, such letter, properly read, was not designed to create such a policy: rather, it was referential to existing policy (as well as mooting some sort of trial), no doubt with an eye to what was very shortly to be contained in the revised process instruction. In this regard, it is to be noted that the letter predated by only a few weeks the revised process instruction issued to caseworkers in June 2011: and one would expect that revised process instruction to represent the relevant applicable policy.

Accordingly I would, with respect, depart from the Upper Tribunal’s conclusion reached by reference to the letter of 19 May 2011.

The Upper Tribunal of course, on the alternative footing – the correct footing, in my view – that the relevant policy was to be found in the process instruction appended as Appendix B, concluded that the Secretary of State’s decision was in any event vitiated on the freestanding ground that the decision-making officials were unaware of the policy. It was said there was “no evidence of this basic appreciation of that policy”: and it was found that the policy was “simply ignored”.

I cannot agree with this. There was no evidence to justify a finding that the policy had not been appreciated or that it was ignored. It would be surprising indeed if caseworkers in this field were not fully apprised of the process instruction. But in any event the matter is put beyond doubt by the terms of the decision letter itself (to which the Upper Tribunal does not refer) of 21 April 2012. That expressly says (as, I observe, do the corresponding decision letters in the cases of Mr Mandalia and Ms Patel) among other things:

It is in truth difficult not to think (and some of the observations in paragraph 28 of the determination positively may suggest) that the Upper Tribunal thought that the policy guidance contained in the process instruction had not been appreciated, or had been ignored, just because Ms Rodriguez had not been given the opportunity – before her application was refused – of putting right the shortcomings in the specified information she had included with her application so as to show that she could meet the necessary requirements in order to obtain the relevant points for maintenance funding. If so, I think that involves a misreading of the process instruction or simply assumes what was very much in issue. I do not think the Secretary of State was required, under the process instruction, first to give Ms Rodriguez that opportunity.

In this regard it is quite true that the introduction to the process instruction flagged up two significant changes, one of which was that “there is no limit on the amount of information that can be requested from the applicant”. But it is to be noted that that is immediately qualified by the instruction that requests for information should not be speculative and – as subsequently reiterated – there must be sufficient reasons to believe that any evidence requested existed. The same point is made in step 3 of the procedure table – taking the example of bank statements (specified documents), the example given is that of bank statements missing from a series: see also what is said in this regard under the heading “Maintenance” at page 10 of the instruction. Taken overall, the Evidential Flexibility process instruction is demonstrably not designed to give an applicant the opportunity first to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration.

In the case of Ms Rodriguez, there was at the time of her application no evidence or reason to believe she had other funds available to her. She had not met the requirements of the Immigration Rules in that the specified documentation supplied by her did not show continuous possession of the required minimum amount over a consecutive 28 day period. It would, as Mr Gullick submitted and I agree, have been speculation on the part of the Secretary of State to consider whether or not she may have had other funds elsewhere. The Secretary of State was not to know that Ms Rodriguez had such funds, or that she had made a mistake in her application. Accordingly, the policy did not fall to be applied in her favour. Thus the fact that the policy was not applied in her favour does not connote that it was not considered. Rather, consideration of the policy – a consideration which, as the decision letter in terms indicates, had occurred – brings about the (proper) conclusion which the caseworker reached: namely that it did not avail Ms Rodriguez.

That leaves the terms of the letter (not produced, but which the Upper Tribunal found Ms Rodriguez had received) sent by the Secretary of State on receipt of the application in February 2012. The Upper Tribunal itself made no express finding as to the effect of such letter; but it may have assumed that it was linked to what it understood to be referred to in the letter of 19 May 2011.

Mr de Mello said that, even if the Secretary of State was not obliged under any policy to notify the applicant that the specified documentation was insufficient to establish the required points, nevertheless this letter changes the position. It represented to Ms Rodriguez that she would be contacted as soon as possible by a caseworker “if there was any problem with the validity of the application, such as missing documentation or omissions on the form”. He submitted that that would have led a recipient in the position of Ms Rodriguez to believe and expect that she would be contacted if there were shortcomings in her application rendering it insufficient to satisfy the requirements; and that it would be unfair (in the public law sense) for the Secretary of State to go back on the representation made. Accordingly by this route, he submitted, the Secretary of State was obliged, as a matter of fairness, to give Ms Rodriguez the chance to supplement the specified documentation supplied, before refusing her application.

I have an amount of sympathy for such submission. But I do not think it can be accepted. A similar argument had been run (as Ground 7) in the case of Alam itself where a similar, although not identically worded, letter was sent to the appellant Mr Anwar: see paragraph 4. But the Court of Appeal rejected that argument. It was accepted that the recipient (Mr Anwar) might not have appreciated the distinction between an application rejected as invalid and a valid application that failed because it failed to meet the requirements (for example, for failure to provide specified documentation sufficient to obtain the points needed). But as Sullivan LJ pointed out the application form itself had drawn attention to that “real distinction”: paragraph 51. He further said at paragraph 52:

In my view, that approach likewise applies to the present case. Mr de Mello pointed out that there are differences in wording between the letter received by Mr Anwar in Alam and that apparently received by Ms Rodriguez. That is true. But I do not think the differences are such as to warrant or justify any different conclusion. Such letters are dealing with the validity of applications (and the mandatory information required): not with the substantive issue of the points to be awarded as disclosed on consideration of the information supplied, including specified documentation.

Concern was expressed that the Court of Appeal in Alam (which was primarily concerned with whether a duty of care was imposed on the Secretary of State) may not have been provided with the full factual position as to the Secretary of State’s Evidential Flexibility policy. Indeed, the Upper Tribunal in its determination in Rodriguez seems to have departed from the implications of the decision in Alam largely on that basis: see paragraphs 21 and 23 of the determination.

For the reasons given above, that is in my view misplaced. In any event, the relevant passage of the letter of 19 May 2011 had been reproduced in issue 7 of the published UK Border Agency News dated May 2011, as was expressly referred to by the court in Alam: paragraph 46 of the judgment. There was also express reference, and at some length, to the Evidential Flexibility policy and proposed changes: see again paragraph 46 of the judgment in Alam. So the Court of Appeal had not been misinformed as to the factual position concerning the then extant policy. All that can be deduced is that evidently it had not occurred either to the various counsel appearing for the appellants in that case or to the Court of Appeal itself that a policy approach of the kind constructed in Rodriguez would avail where there was a failure by Tier 4 applicants to provide with their applications specified documentation sufficient to attract the necessary points for the maintenance funding requirement.

Generally, Sullivan LJ in terms said in paragraph 35 of Alam:

It follows, in my judgment, that the appeal of the Secretary of State to this court succeeds in the case of Ms Rodriguez. Further, remittal to the Tribunal could not avail and could not have availed Ms Rodriguez, whatever sympathy one may have for her individual position. In my view, her original application was properly refused and the conclusion of the First-tier Tribunal judge had been correct. Therefore, her underlying appeal from the decision of the Secretary of State must itself stand dismissed.

The same reasoning applies to the case of Mr Mandalia. It is true that in his case the failure was to supply statements covering the necessary 28 day period: in respect of the period which the supplied statements did cover there was a sufficiency of funds. But in my view that makes no real difference. For, as Mr Gullick pointed out, this was not a “missing sequence” case; and it would again have been complete speculation on the part of the Secretary of State as to whether bank statements – if available at all – for the preceding period or the succeeding period would have shown the availability of funds in the required amounts.

Mr Mahmood, however, said that in his case – because of the erroneous view (as this court has found it to be) of the Upper Tribunal as to the ambit of the grounds of his appeal to the Upper Tribunal – Mr Mandalia received no decision of the Upper Tribunal on this issue. Accordingly, he submitted that his appeal should be allowed and remitted to the Upper Tribunal for determination of the issue.

Since the Upper Tribunal did not deal with the matter, I agree that remittal would be the ordinary starting point. But there is no purpose in directing remittal if there can only be one outcome: viz dismissal. In the light of my conclusion in Ms Rodriguez’s case I cannot see any basis for Mr Mandalia’s case succeeding before the Upper Tribunal.

Mr Mahmood also sought to say that there are – or could be – factual issues still remaining to be decided. He drew attention, in particular, to a passage in a statement from Mr Mandalia dated 31 October 2012. That states that, before lodging his application, he attended the Public Enquiry Office at Solihull and produced the bank statement he was intending to include with his application. He says that he was informed (by an unnamed individual) that “everything would be fine on just this bank statement”.

It seems rather hard to credit that the Public Enquiry Office would have given, or have been in a position to give, any such assurance. But be that as it may, the short answer is that Mr Mandalia produced no such evidence before the First-tier Tribunal judge at the hearing of 25 June 2012. On the contrary, the judge records Mr Mandalia’s concession in oral evidence that he had “made a mistake”. In such circumstances he cannot now rely on this subsequent statement.

In all the circumstances I would dismiss his appeal.

The same reasoning applies to, and the same result must follow in, the case of Ms Patel. I would therefore dismiss this appeal also.

In the course of her submissions on behalf of Ms Patel, Miss Shaw eloquently and understandably laid emphasis on the difficulties facing an applicant such as Ms Patel in these situations. Mr de Mello and Mr Mahmood had themselves made similar eloquent submissions on behalf of their clients. The forms are complex and the requirements most rigorous: and most applicants are not versed in the law and do not always have ready access to specialist legal advice. Moreover, they usually do not have English as their first language. I sympathise with those submissions – just as Sullivan LJ did in Alam. But those circumstances cannot dictate the outcome. Miss Shaw also drew attention to the deficiencies revealed in the specified documentation supplied by Ms Patel with her application. Miss Shaw was not able to say that the shortfall was de minimis; but she did say that it was but a relatively minor shortfall over a relatively short period. However the Immigration Rules are specific in this regard. And to the extent that Miss Shaw seemed to come close to invoking a “near miss” approach then that is not open to her. Thus in Raju & Ors v Secretary of State for the Home Department[2013] 4 All ER 1043, [2013] EWCA Civ 754, Moses LJ stated in terms (in paragraph 12):

I would thus uphold the conclusion of Upper Tribunal Judge Renton in this regard. He was right, in particular, to conclude that the Evidential Flexibility policy did not require the Secretary of State, in every case where there was a failure to meet the requirements of the Immigration Rules, to make further enquiries; and he was right to conclude in this case that the Secretary of State was under no obligation to enquire if there were further funds available to Ms Patel.

(1) I would grant permission to the Secretary of State to appeal in the case of Ms Rodriguez, allow the appeal of the Secretary of State and dismiss the appeal of Ms Rodriguez against the initial decision.

I would refuse to set aside the grant of permission to appeal to Mr Mandalia but would dismiss his appeal.

I would dismiss the appeal of Ms Patel.

I should record that we received some limited argument on the status of the applicants in circumstances where their appeals were allowed or dismissed, as the case may be, by reference in particular to s.3C of the Immigration Act 1971; and also as to what their position might be if they were hereafter to submit fresh applications, by reference (in particular) to Rule 245ZX. I need express no view on that. I also would indicate that so far as I am concerned this judgment is directed to the effect of the Immigration Rules then applicable and to the effect of the Evidential Flexibility policy then applicable in the circumstances of these cases. We received no argument on the meaning and effect of the relevant Immigration Rules now in force or of the current Guidance.

I agree.

I also agree.