SH (Pakistan) v Secretary of State for the Home Department

The appellant, a Pakistani national aged 42, sought leave to remain in the UK as a Tier 1 (Entrepreneur) migrant on 25 October 2012. He had originally been granted leave to enter in October 2007 and had been granted extensions to 29 October 2012. He was subject to the points-based system, which means he had to acquire a certain number of points by complying with the requirement stipulated in the Rules.

The Secretary of State refused his application on 2 April 2013. She was not satisfied that the requirements of either Appendix A of the Immigration Rules concerning maintenance funds or Appendix B which required him to demonstrate sufficient proficiency in the English language had been met.

The appellant appealed to the First-tier Tribunal where it was conceded that the requirements of Appendix A had indeed been satisfied. However, the Secretary of State continued to maintain that the English language proficiency requirement had not. He had to achieve ten points in respect of this requirement and he had been allocated no points at all.

On order to demonstrate compliance with this requirement the appellant was seeking to rely on a degree level qualification from Coventry University which had been taught in English. This is one of the permitted ways in which he could demonstrate sufficient proficiency. By paragraph 7(ii) of Appendix B he had to provide either the original certificate of award or, if that could not be obtained, an academic transcript from the awarding institution on official headed paper showing certain details specified in Appendix B. He was not in a position to submit an original degree certificate because although he had by then been awarded the degree, he had not at that point received his degree certificate. Accordingly he had to provide the academic transcript from the awarding institution. He had to make his application before 29 October and therefore could not wait until his degree certificate was provided to him.

He did not provide the transcript from the awarding institution as he was required to do. What he did provide was a document from the British Institute of Technology and E-commerce, the college where he had studied, and it did indeed provide the necessary details. It set out the nature of the course and disclosed that the language of instruction had been English; it identified the awarding body as Coventry University and gave the dates when he had been studying on the course; it gave the award date of 19 October 2012 when he secured his degree; and it told the Secretary of State that he would receive the original certificate by the end of November 2012. However, because the document had not been provided by the awarding institution as the Rules require, the Secretary of State concluded that there should be no points for language proficiency and as a consequence the application was rejected.

It is conceded that had the certificate been provided to the Secretary of State or had the alternative academic transcript from Coventry University been provided, then he would have satisfied the requirements for leave to remain and his application would have been successful.

Mr Malik, counsel for the appellant, concedes that the Rule was not strictly complied with but says that that should not have been the end of the matter. He submits that given the minor nature of this omission, the fact that it was the only bar to the applicant succeeding and that it was an error which could readily and speedily be remedied, the Secretary of State should as a matter of law have given the applicant the opportunity to make good the omission and to provide the proper document. At the time the decision of the Secretary of State was taken in April 2013, this would have been the degree certificate itself which would then have been available to him; indeed, he might already have received it.

Three arguments are now advanced to make good that submission. First, it is said that the Secretary of State should have relied upon paragraph 245AA of the Immigration Rules which provides that in certain limited circumstances set out in that Rule, even though information has not been provided in full, the Secretary of State may contact the applicant or his legal representative and give an additional opportunity to produce the appropriate material. Second, he says that quite independently of that Rule the Secretary of State at the material time had in place what was termed an “evidential flexibility policy”. The Secretary of state was bound to apply that policy unless there was good reason not to do so, and none has been suggested here. Mr Malik says that on a proper application of the policy the Secretary of State was required to give the applicant the opportunity to provide the degree certificate even if the Rules did not permit that. Finally, he submits as a long stop that the common law duty of fairness required the opportunity to be provided on the facts of this case even if his other arguments were unsuccessful.

The First-tier Tribunal decided the case having regard only to the evidential flexibility policy. It is possible that the attention of the Tribunal was not drawn to Rule 245AA itself although it came into force on 12 September 2012, shortly before the application was made. In any event the First-tier Tribunal considered that the terms of the policy would not apply where there was a failure to provide a document of the type specified in the Rules themselves.

The argument took a different course before the Upper Tribunal. The appellant’s representative on that occasion (not Mr Malik) conceded that the correct interpretation of the decision of the Court of Appeal in the case of Rodriguez v Secretary of State for the Home Department [2014] EWCA Civ 2 was that the evidential policy requirements were now encapsulated in Rule 245AA. The case was decided on that basis.

The version of rule 245AA in play at the material time were as follows:

“(a)

Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).

(b)

If the applicant has submitted specified documents in which:

(i)

Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);

(ii)

A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or

(iii)

A document is a copy and not an original document; or

(iv)

A document does not contain all of the specified information;

the Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received at the address specified in the request within 7 working days of the date of the request.

(c)

Documents will not be requested where a specified document has not been submitted (for example an English language certificate is missing), or where the Entry Clearance Officer, Immigration Officer or the Secretary of State does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.

The submission advanced before the Upper Tribunal was that the document provided was in the wrong format and therefore fell within the scope of the Rule, namely 245AA(b)(ii). The Upper Tribunal judge gave short shrift to that argument. He said that the wrong format exception applied only where the right document was submitted. Here, the wrong document had been submitted. As I have said, there was no independent argument that the evidential flexibility policy supplemented the Rule.

The first issue in the appeal repeats the submission unsuccessfully advanced before the Upper Tribunal: was the document which the appellant provided to demonstrate his proficiency in the English language a document in the wrong format so as to fall under the relevant paragraph? The appellant submits that it was and that the Upper Tribunal was wrong to find otherwise. He contends (and this is not disputed) that the Rules have to be interpreted objectively in a common-sense way in accordance with the natural and ordinary meaning of the Rule (see the observations of Lord Brown in Mahad v Entry Clearance Officer [2009] UKSC 16 at paragraph 10). Here, the relevant information had all been provided albeit from the wrong institution. This was simply a format issue.

I disagree with this submission essentially for the reason succinctly expressed by the Upper Tribunal. This was not a document in the wrong format, it was the wrong document. It was from the wrong institution and it failed to provide confirmation of the language proficiency from the institution charged with verifying that function. This is not an entirely technical matter. It is Coventry University that awards the degree and can confirm the date of the award and it is not unreasonable for the Secretary of State to require that institution and no other to provide the necessary confirmation. In my judgment a document is in the wrong format in circumstances where the material information was provided but not in the appropriate form. For example, the exception might well apply if Coventry had provided the information but not on its official notepaper, but that is not this case.

In the course of argument the question was raised whether the position might have been different if the British Institute of Commerce had been acting on behalf of Coventry when sending in the information. I would leave that issue for another day. Suffice it to say that there is nothing in the document to suggest that the British Institute were acting in that capacity, and it was not suggested that they were doing so in evidence.

A related argument was that the Rules should be read consistently with the evidential flexibility policy and that if they were so construed they would allow the Secretary of State to seek further information even in cases not covered specifically by the Rules. The argument rests on the established principle that in cases of ambiguous rules they should be read compatibly with any declared policy (see Adorian v Secretary of State for the Home Department [2011] 1 WLR 564 at 70 and 86 and Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at 42-43). The alleged ambiguity here was said to be that it is at least a possible construction of Regulation 245AA(b) that the Secretary of State could under the Rule itself request the correct documents in situations other than those stipulated in that particular sub-rule. I do not agree. That is not a sensible or in my view even possible reading of the Rule. There is no ambiguity and the principle is therefore inapplicable.

I turn to the second principle ground: whether the evidential flexibility policy supplements the Rule and created an obligation on the Secretary of State to comply with it even if it extended beyond the scope of the Rule. Mr Malik submitted that it does have that effect. The Secretary of State was required by this policy to consider making a request for the missing information. It is common ground that the policy was in force at the material time. Although it came into force in March 2013, which was some five months after the application had been made, it was in force when the Secretary of State made her decision.

Mr Poole, counsel for the Secretary of State, concedes that in those circumstances the policy would apply because it takes effect with respect to decisions made after it has come into force and not applications lodged after that date. It is necessary to set out certain features of the policy:

“This guidance tells you about the use of evidential flexibility when an application has missing evidence or there is a minor error on an application.

This guidance pulls together cross cutting guidance which previously existed in separate products, and combines relevant information from other operational instructions. It supersedes all previous instructions and guidance on evidential flexibility.

Under the evidential flexibility process, if there are minor errors or omissions on specified documents submitted with a valid application but there is enough evidence to show the application would otherwise be granted, you may contact the migrant, sponsor or representative as appropriate for clarification or to request missing documents and/or information.”

Page 5 then says this:

“This page tells you about requesting additional information if there is missing evidence, or evidence that is not in an acceptable format.

You must only request additional information in certain circumstances which would lead to the approval of the application.

Before requesting additional evidence you must have sufficient reason to believe the

information exists. This is limited to cases where:

•

documents (for example bank statements) are missing from a series

•

evidence detailed on a confirmation of acceptance for studies (CAS) or certificate of sponsorship (CoS) is missing

•

photocopies of the required documentation have been received, or

•

a document is in the wrong format.

For more information see related link: Evidential flexibility - documents which it maybe appropriate for the caseworker to request for each tier.

If you are not sure if the evidence exists, you must discuss the issue with your higher executive officer (HEO), or senior caseworker (SCW).

You must refuse the application if the application falls for refusal even if the missing information was provided, or minor error was corrected. All grounds must be included, including any attributes where there was any missing evidence or minor errors.

Additionally, if there are any reasonable doubts over the information currently held that would cause you to seek further verification, you must do this before you request any further evidence.”

The question is whether the policy is limited in the way the way the Secretary of State suggests. Is it circumscribed by the Rules laid down in Regulation 245AA? Mr Poole relied upon two points in particular to submit that it was. The first is that the policy was passed subsequent to the Rule. He says it is a fair inference therefore that it was intended to explain to case workers how to apply the Rule on the ground. The second is that the statement set out above that it was pulling together earlier guidance also supports the notion that it was not intended to alter any applicable principles.

In my judgment it is impossible to say as a matter of objective interpretation that the policy was intended simply to provide caseworkers with assistance with how they should deal with exceptions identified in paragraph 245AA. I say this for a number of reasons. First, the policy says it is about evidential flexibility “when an application has missing evidence or there is a minor error on an application”. This is much wider than the very particular circumstances set out in Regulation 245AA(b).

Second, there is simply no reference to Regulation 245AA. The fact that the policy was produced after the Regulation came into force is if anything a factor against the Secretary of State’s submission. Even with knowledge of it, there is no reference to it. Indeed, the only reference in the whole document to that Regulation is in relation to a particular section which applies to applications made after 14 December 2012 (not in play here) where it is said that “The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where paragraph 245AA(b) applies …”. That hardly suggests that the whole policy is circumscribed by the Rules.

Third, the exceptions are much broader than those set out in Regulation 245AA(b), as Mr Poole conceded. If he were right, a caseworker who applied the policy to some of the particular circumstances expressly envisaged by the policy but not the Rules would be acting unlawfully. Indeed, the policy would have to be read as if those exceptions were simply not there. Furthermore, it must be remembered that most applicants who manage to find the policy on the website would naturally take it at face value. They would be highly unlikely to know that Regulation 245AA existed, and nothing in the policy would suggest to them they should read the policy in the light of that Regulation. Whatever may have been the subjective intention of the Secretary of State in drafting this policy, I do not accept that it can be read as if circumscribed by the Rule.

Will the policy operate in the circumstances of this case? Mr Poole faintly argued that it would not, but in my view that is with respect a hopeless submission. There is plainly enough evidence to show that if the appropriate certificate was provided the application would succeed. There was also overwhelming evidence to believe that the document existed. Moreover, the policy provides that the benefit of the doubt in cases of uncertainty should be exercised in favour of the applicant. The only reasonable inference was that the document existed, could be provided, and would be conclusive.

Mr Poole suggested that the caseworker might have thought that the document could not have been provided within the seven days specified in the Rules. That is not in fact the reason why no attempt was made to get the evidence, but in any event that would in my view have been an irrational conclusion. There was every reason to believe that the original certificate, which the Secretary of State had been told would be in existence by the end of November, could readily be obtained and produced if indeed the applicant did not already have it.

This conclusion is in my view supported by the decision of the Supreme Court in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546. That case confirmed that in a case like this the policy should be construed objectively (see paragraph 31) and that the Secretary of State would need to give effect to it unless there was good reason not to do so (see paragraphs 29 to 31). As Lord Wilson pointed out giving the judgment (with which all members of the court agreed), although the obligation to give effect to the policy is related to the doctrine of legal expectation, it is in fact independent of that doctrine and rests on the principle that the Secretary of State should in general honour her promises whether known to the applicant or relied upon by him or not. It is also relevant to point out that in that case the terms of the policy, which in many respects were very similar to the policy in issue here, was said by Lord Wilson to give rise to much greater flexibility than that afforded by Rule 245AA.

I would therefore uphold the appeal on that ground. In the circumstances it is not necessary to engage with the common law fairness issue, as interesting as that question might be. I should add that we are concerned with the particular guidance given in play at the material time. We have not in terms addressed the later guidance which has amended it.

I agree with my Lord, yet for the reasons he gives the appeal should be allowed only on the evidential flexibility policy ground. The language of the policy in force at the date of the Secretary of State’s decision cannot sensibly be construed as applying only to cases in which paragraph 245AA of the Immigration Rules is engaged.

I would like to make a brief observation on what in argument was described as the “tailpiece argument”, that based on the public duty of fairness of common law. It is common ground that this may impose obligations on the Secretary of State in addition to those under the Rules concerning the points-based system (see Alam v Secretary of State for the Home Department [2002] EWCA Civ 960 at 44). EK (Ivory Coast) v Secretary of State for the Home Department [2015] EWCA Civ 1517 is to the same effect although in a much more constrained way. That case establishes that the context of the points-based system informs the way in which the general public duty of fairness operates, as does Rahman v Secretary of State for the Home Department [2014] EWCA Civ 1640. The reason for that is that, as Sales LJ started in EK (Ivory Coast), given the numbers of applications in this context by student migrants the Secretary of State is entitled to achieve such certainty as is possible by a system which enables her to process high volumes of applications in a fair and reasonably expeditious manner according to objective criteria. In EK (Ivory Coast) it was held by the majority that the fact that the Secretary of State knew that the CAS letter on which an application for leave to remain was based had been withdrawn by the teaching institution did not require her to give the applicant notice of the problem and an opportunity to rectify the position.

Mr Poole submitted that in cases where the problem that arose was not due to the fault of the Secretary of State and there was compliance with the relevant rules and policies, there was no room for invoking the common law principle of fairness because of the inroads it would make into the efficient operation of the points-based system. Given that a Secretary of State may act unfairly (see the authorities I have cited) notwithstanding her compliance with the Rule and the terms of the majority judgments in EK (Ivory Coast), that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State’s conduct.

However, it is not necessary to consider this further in this case because the position here does not depend just on the Rules. After the promulgation of the relevant Rule the Secretary of State issued an evidential flexibility policy, the meaning of which has been set out by my Lord. Broadly speaking, absent any public law flaw in that policy itself, compliance with that policy in my judgment would satisfy the requirements of the common law duty of fairness.

I also agree for the reasons given by my Lord Elias LJ.