Mudiyanselage v The Secretary of State for the Home Department

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 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. (Footnote: 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 relating to evidential flexibility as originally issued in 2009 was significantly different in form and content to the subsequent guidance, and it is unnecessary to consider it here. I can start the story with the revised version issued in June 2011, which was the version considered in the Supreme Court’s decision in Mandalia to which I have already referred. At paras. 21-23 of his judgment Lord Wilson introduced it as follows:

“21.

As its full title indicated, the process instruction was addressed to the agency's caseworkers who were processing applications for visas by reference to the points-based system. The reference in the title to evidential flexibility was an indication in shorthand that the instruction was that caseworkers should show some, albeit limited, flexibility in relation to applications from which requisite information had been omitted and, in particular, which had not been accompanied by requisite evidence.

22.

The introduction to the process instruction was as follows:

‘In response to significant feedback from the caseworking teams, as well as from our customers, from August 2009 a flexible process was adopted allowing PBS caseworkers to invite sponsors and applicants to correct minor errors or omissions in applications both main and dependant submitted under Tiers 1, 2, 4 and 5.

The instruction enabled caseworkers to query details or request further information, such as a missing wage slip or bank statement from a sequence. Three working days [were] given to the customer to provide the requested information.

This instruction only applied to cases which would be refused solely on the absence of a piece of evidence or information. Where the application would fall for refusal even if the missing evidence was submitted, a request to submit this further information would not be made.

The introduction of this instruction resulted in a reduced refusal rate. However, those that fell for refusal where multiple pieces of information were missing were often successful on appeal.

Following analysis of allowed appeals and feedback from the National Audit Office … and Chief Inspector …, the original Evidential Flexibility instruction has been reviewed to meet the recommendations put forward in these reports …

As such, there have been two significant changes to the original Evidential Flexibility instruction:

1)

The time given to applicants to produce additional evidence has been increased … to seven working days; and

2)

There is now no limit on the amount of information that can be requested from the applicant. However, requests for information should not be speculative, we must have sufficient reason to believe that any evidence requested exists [emphases in original].’

23.

The process instruction then identified 19 steps which the caseworker was to take ‘when an application has missing evidence or there is a minor error’.”

Lord Wilson went on to summarise some of those steps. I need refer only to step 3, which begins:

“We will only go out for additional information in certain circumstances which would lead to the approval of the application.

Before we go out to the applicant we must have established that evidence exists, or have sufficient reason to believe the information exists.

Examples include (but are not limited to):

“(1)

bank statements missing from a series;

(2)

evidence that specific qualifications have been provided previously (either from reviewing CID, or a legacy application, such as globe);

(3)

evidence detailed on a CAS/COS is missing; and

(4)

named deposits on bank statements from an employer, but no wage slips provided.”

The scope of the first of the examples under step 3 – “bank statements missing from a series” – was the issue in Mandalia itself. I need not explain the others, which I have reproduced only because they are part of the archaeology of the EFP. Step 3 also refers to further examples given in an “Annex A”, though it is again explicitly stated that these are “not exhaustive”. These include “bank statements not in the desired format” and “evidence that is copied instead of an original”, which, as will be seen, came to feature in paragraph 245AA; but a large number of other types of missing documents are also listed.

Paragraph 245AA in its original version, which was effective from 6 September 2012, read:

“(a)

Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where subparagraph (b) applies.

(b)

The subparagraph applies if the applicant has submitted:

(i)

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

(ii)

A document in the wrong format; or

(iii)

A document that is a copy and not an original document,

the UK Border Agency will contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.

(c)

The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency 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.”

(Something has gone wrong with the language of sub-paragraph (b): some such words as “in such a case” are needed before “the UK Border Agency will apply …”. But the sense is clear enough.)

It is convenient to make one point here about the drafting of sub-paragraph (c) (which remains in substantially the same terms through the subsequent changes). Mr Poole accepted that the sub-paragraph contains two quite distinct provisions, which are in truth unrelated:

It will be seen that the conditions for the operation of evidential flexibility provided for by the rule are more restrictive than those under the process instruction considered in Mandalia, in as much as under the rule missing documents will only be sought if they fall under the particular categories specified in sub-paragraph (b), whereas under the process instruction there were no limits on the kinds of further information that could be sought, provided only that there was reason to believe it existed and that it could affect the decision.

Paragraph 245AA was amended with effect from 13 December 2012. It is this version that was in effect in the case of Mudiyanselage. It is convenient to set out the whole paragraph as amended. It reads:

“(a)

Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency 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:

(i)

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

(ii)

A document in the wrong format; or

(iii)

A document that is a copy and not an original document,

the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.

(c)

The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency 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.

(d)

If the applicant has submitted a specified document:

(i)

in the wrong format, or

(ii)

that is a copy and not an original document,

the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).”

The main difference between that version and its predecessor are as follows.

First, in sub-paragraph (b) the provision that UKBA “will” in the specified circumstances contact the applicant has been changed to “may”. Formally, that converts a rule into a discretion. Mr Poole acknowledged that that discretion would on general principles have to be exercised consistently and in accordance with the underlying policy, which may mean that in many cases the discretion will in practice be an obligation. But the distinction remains important. A consistent element in the EFP is that caseworkers should only ask for further information in a case falling under paragraph 245AA (b) where there is in fact reason to believe that the missing document or information exists. Mr Karim pointed out that paragraph 245AA contains no such provision. That is so, but the fact that the exercise of the power is discretionary means that it is entirely proper for the Secretary of State to take such an approach as a matter of policy.

Secondly, the new sub-paragraph (d) gives UKBA a discretion, exceptionally and in limited circumstances, to dispense with seeking further information in “wrong format” or “copy instead of original” cases where it is satisfied that the specified documents are genuine. The concept of “evidential flexibility” is thus extended from the original idea simply of giving applicants the chance to remedy mistakes and to include a discretion to caseworkers simply to overlook them (in the circumstances defined). The purpose is evidently to relieve UKBA of the need to waste time and effort going through an unnecessary process where it is clear what the outcome will be. It does not extend the classes of cases in which evidential flexibility applies

Thirdly, and less significantly:

None of those changes undermines the point which I make at para. 14 above – that is, that the rule in paragraph 245AA is more restrictive than the EFP in the form that it took at the time relevant to Mandalia.

Paragraph 245AA was amended again with effect from 1 August 2013 and further amended with effect from 1 October 2013. (Footnote: ²) It is the October 2013 version that was in effect in the case of all the appeals save Mudiyanselage, and it remains in effect currently. The paragraph now reads

“(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.

(d)

If the applicant has submitted a specified document:

(i)

in the wrong format; or

(ii)

which is a copy and not an original document; or

(iii)

which does not contain all of the specified information, but the missing information is verifiable from:

(1)

other documents submitted with the application,

(2)

the website of the organisation which issued the document, or

(3)

the website of the appropriate regulatory body;

the application may be granted exceptionally, providing the Entry Clearance Officer, Immigration Officer or the Secretary of State is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The Entry Clearance Officer, Immigration Officer or the Secretary of State reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).”

The only substantial change between that and the December 2012 version is the addition of a head (iv) under sub-paragraph (b), covering cases where a document “does not contain all of the specified information”; but that change required also the elaboration of the provisions of sub-paragraph (d).

It appears that the process instruction was withdrawn as regards all applications made after 6 September 2012, being the date that paragraph 245AA came into force (see para. 28 of the judgment of Lord Wilson in Mandalia (p. 4555 (F-G)); and there seems to have been a period of some months during which no separate articulation of the evidential flexibility policy was in place. But in due course the Secretary of State issued the first version of the Guidance, valid from 12 March 2013. It runs to thirteen pages. We need only be concerned with two sections. The first, which is at pp. 2-3, is headed “About this Guidance”, and the second, which is at p. 5, is headed “Obtaining Additional Information”. I take them in turn.

The “About this Guidance” section is evidently by way of general introduction. It begins:

“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 amalgamates relevant information from other operational instructions.

Under the evidential flexibility process, if there are minor errors or omissions on 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.”

Some purely administrative bullet points follow. There is then a passage referring to the change effected by the introduction of sub-paragraph (d) of paragraph 245AA (b) (see para. 18 above).

The “Obtaining Additional Information” section contains specific guidance as to the circumstances in which additional information should be sought. It reads (again, so far as material):

“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.

Examples include (but are not limited to):

(1)

bank statements missing from a series;

(2)

evidence that specific qualifications have been provided previously (either from reviewing CID, or a legacy application, such as globe);

(3)

evidence detailed on a CAS/COS is missing; and

(4)

named deposits on bank statements from an employer, but no wage slips provided.”

For more information see related link: Evidential flexibility - documents which it may be appropriate 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). If there is still uncertainty that evidence exists, benefit is given to the applicant and you must request the evidence.

You must refuse the application if the application falls for refusal even if the missing information was provided, or minor error was corrected.

…”

The link to which reference is made is to a document in substantially identical terms to “Annex A” in the process instruction.

It will be seen that that guidance essentially reflects the terms of the process instruction, in that it envisages caseworkers having a general power – if not indeed an obligation – to request additional information in cases where there is “missing evidence”: although examples are given of the kinds of missing information that should trigger such a request, it is made clear that that those examples are not exhaustive. There accordingly continued to be a mismatch between the terms of the EFP and those of paragraph 245AA.

The Guidance was amended with effect from 20 May 2013. The amended version – version 2 – was in force at the time of the decision in Mudiyanselage. The introductory section was unaltered from version 1, but the “Obtaining Additional Information” section now read:

“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 may be 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.”

This change brings the EFP much closer to the terms of paragraph 245AA, inasmuch as three of the four bullets broadly correspond, though using different language, to heads (i)-(iii) of sub-paragraph (b), and – importantly – the need to seek further information is described as “limited to” such cases. However, complete consistency is not achieved. This is not only because the bullet relating to CAS/COS documentation is not paralleled in paragraph 245AA, but also because of the continuing reference to the “related link”. We were not taken to the linked document, but I assume that it was in the same terms as the original “Annex A” (see paras. 11 and 25 above), in which case there would be a more substantial discrepancy because the types of information listed there go beyond those in paragraph 245AA.

We were not taken to version 3, which took effect from 12 September 2013 but we were told that it is substantially identical to version 2 so far as concerns the issues before us.

Version 4 of the Guidance, which took effect from 1 October 2013, introduces significant changes. As with the previous versions, it starts, at pp. 2-3, with an introductory “About this Guidance” section, but the specific guidance about “Obtaining Additional Information” is split into two parts. The first, at p. 7, is concerned with applications for entry clearance and the second, at p. 8, with applications for leave to remain. It is the latter which is relevant for our purposes.

The introductory section begins:

“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 amalgamates 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.”

That is substantially similar, though not quite identical, to the equivalent passage in previous versions. Two passages follow, summarising the effect of sub-paragraph (d) of paragraph 245AA, first as introduced in December 2012 and then as revised in October 2013: nothing turns on these.

As for the “Obtaining Additional Information” section, this reads:

“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 that would lead to the application being approved.

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

 photocopies of the required documentation have been received, or

 a document is in the wrong format

•

‘wrong format’ covers documents which contain all of the substantive information required by the Immigration Rules but aren’t laid out in the way described in the rules. For example, where a specified document should be submitted on letterheaded paper.

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 it would fall for refusal even if the missing information was provided, or if a minor error was corrected. You must not request any missing information if it cannot change the decision on the case.

You must include all grounds of refusal in the decision letter, including any attributes where there was evidence missing or minor errors, noting that you have not requested missing evidence which is covered by the list above, as the case would fall for refusal on other grounds.”

It will be seen that the terms of the “Obtaining Additional Information” section are in this version no wider than those of paragraph 245AA, completing (following the start made in version 2) the closing of the gap which had existed in version 1. The circumstances in which additional information is to be sought are described as “limited to” the three bullets, and there is no longer any additional bullet referring to CAS/COS cases, nor any reference to the link. It is true that there remains one discrepancy, in as much as the Guidance makes no reference to the situation covered by head (iv) under paragraph 245AA (ii) – “document not containing all the specified information”. Mr Balroop placed some reliance on that as showing that the new version of the Guidance remained out of step with the rule. But the discrepancy is not one which favours applicants: on the contrary, the effect is that the policy is, on its face, more restrictive than the rule (though that has no effect in practice, since applicants would be entitled to rely on the terms of the rule). In fact, we were told by Mr Poole, which seems entirely plausible, that the discrepancy was an oversight; and it was eventually corrected in version 8.

The version current at the time of all the live appeals before us except Mudiyanselage is version 7, which came into effect on 12 August 2014. It is for our purposes in identical terms to version 4. We were not taken to the intervening versions – version 5, effective from 7 November 2013, and version 6, effective from 28 March 2014 – but we were told (as one would in any event assume) that they too were in the same terms so far as material.

Although it was not in force at the time with which we are concerned, we were shown version 8 of the Guidance, which came into effect on 24 November 2016 and remains in force currently. It is very differently structured from versions 1-7, and I need not attempt any comprehensive summary. I should, however, note three points about it:

The decision of this Court in Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 was concerned with the effect of the orders bringing into effect section 85A of the Nationality Immigration and Asylum Act 2002 in PBS cases. The Court confirmed that the effect of the legislation was that appellants in such cases could not rely in the FTT on evidence required by Part 6A of the Rules which they had failed to supply in their original applications.

The issue of evidential flexibility did not arise in Alam, but it was necessary for the Court to consider the policy behind the PBS, and two passages in the judgment of Sullivan LJ (with whom Maurice Kay and Moore-Bick LJJ agreed) have been relied on in the subsequent case-law. At para. 35 he said:

“[T]he Immigration Rules, the Policy Guidance, and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. … Mr. Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion.”

And at para. 45 he said:

“I endorse the view expressed by the Upper Tribunal in Shahzad [[2012] UKUT 81 (IAC)] (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in ‘hard’ decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.”

The case subsequently went to the Supreme Court – [2013] UKSC 72, [2014] AC 651 – but on a different issue, and the judgments contain nothing material for our purposes.

In Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 this Court considered three appeals in cases involving evidential flexibility: the other two are Mandalia and Patel. In each case an applicant under the PBS had made an application in respect of which the relevant rule required that they provide bank statements showing a minimum credit balance over a 28-day period. The applications failed to comply with that requirement: in the cases of Ms Rodriguez and Ms Patel the balance shown fell below the requisite minimum for short parts of the period, and in the case of Mr Mandalia the statements only covered 22 days. Their case was that they should have been given the opportunity to provide evidence to correct those errors, either by the application of the evidential flexibility policy appearing in the process instruction or as a matter of fairness in the light of correspondence from the Home Office which arguably offered them such an opportunity.

This Court rejected that case. Davis LJ, with whom Pitchford LJ and Sir Stanley Burnton agreed, held that none of the errors fell within the terms of the EFP, because there was in none of the cases sufficient reason to believe that evidence to correct the deficiencies existed. It also rejected the case based on the Home Office’s letters. At para. 109 Davis LJ referred to submissions to the effect that it was harsh that applicants under the PBS should be given no opportunity to correct trivial errors of this kind: it was pointed out that “the forms are complex and the requirements most rigorous, … most applicants are not versed in the law and do not always have ready access to specialist legal advice [and] they usually do not have English as their first language”. He continued:

“I sympathise with those submissions – just as Sullivan LJ did in Alam [Davis LJ had earlier quoted the passages from Sullivan LJ’s judgment which I have set out above].  But those circumstances cannot dictate the outcome. … [Counsel for Ms Patel] 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.”

He went on to cite the well-known “near-miss” authorities.

Mr Mandalia, though not Ms Rodriguez or Ms Patel, appealed to the Supreme Court. His appeal was allowed: see [2015] UKSC 29, [2015] 1 WLR 4546. It is important to appreciate that that was on very specific grounds based on the terms of the process instruction. That is made clear at para. 31 of the judgment of Lord Wilson (p. 4556H): “the search is for the proper interpretation of the process instruction, no more and no less”. He held that on the material submitted with the application it was apparent that there were “bank statements missing from a series” within the terms of step 3 of the process instruction (see para. 33). But he also held that even if that had not been the case the instruction said in terms that that was only an example and that there was “no limit” on the information that could be requested if, as was the case on the facts, there was reason to believe that it existed (paras. 34-35). The narrower reasoning in Mandalia would still apply in a similar case, since the provision about bank statements in a series continues to be reproduced in the current version of paragraph 245AA – subject to the effect of the passage in version 8 of the Guidance referred to at para. 35 (2) above. But the broader reasoning would not, since the language on which Lord Wilson relied disappeared from the Guidance after version 1.

Lord Wilson noted, at para. 28 of his judgment (p. 4555 F-G), that paragraph 245AA had come into force since the date with which the Court was concerned, and that seemed “to give caseworkers substantially less flexibility than did the process instruction”.

More generally, the decision of the Supreme Court in Mandalia does not call into question the general approach to the requirements of the PBS apparent from Alam and Rodriguez. Indeed, in the introductory section of his judgment Lord Wilson made very similar observations to those of Sullivan and Davis LJJ. He said, at para. 2 (p. 4549 F-H):

“In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291, Jackson LJ observed at para 4 that [the provisions of Part 6A] had ‘now achieved a degree of complexity which even the Byzantine emperors would have envied’. On any view, and contrary to a forecast in the White Paper, it is difficult for applicants, for many of whom English is not even their first language, to navigate their way around the requirements. It may be, however, that, as intended, the system is not difficult for caseworkers to administer. Certainly they have to a substantial extent been relieved of the obligation to consider whether to exercise discretions in their processing of applications. The sharp edges of the rules have cut out hard cases which have found their way to the courts and which have inevitably attracted at any rate the sympathy of the judges and sometimes – I speak for myself – reservations about the suitability of the system which have not been easy to suppress. But suppressed they must be. For the management of this type of immigration, in principle highly valuable for the UK, is a profound social challenge, of which the complexities are beyond the understanding of the courts; and, by not exercising its right to disapprove Part 6A of the rules, Parliament has indorsed the Secretary of State's considered opinion that a points-based system is the optimum mechanism for achieving management of it.”

In EK (Ivory Coast)v Secretary of State for the Home Department [2014] EWCA Civ 1517 the appellant submitted “Confirmation of Acceptance for Studies” (“CAS”) letter in support of an application for leave to remain as a student under the PBS. The CAS was, unbeknownst to her, mistakenly withdrawn by the issuing college following her application but before the Secretary of State made her decision; and the application was accordingly refused. It was her case that the common law duty of fairness required the Secretary of State to notify her of what had occurred and give her the opportunity to have the CAS re-issued. This Court, while acknowledging that the situation in which the appellant had been placed was unfair, by a majority (Sales and Briggs LJJ, Floyd LJ dissenting) rejected that submission.

As in Alam, the case did not directly involve para. 245AA or the EFP, but the reasoning of the majority reiterates the importance to the operation of the PBS of applying hard-edged rules. At para. 28 of his judgment Sales LJ said:

“The PBS is intended to simplify the procedure for applying for leave to enter or remain in the United Kingdom in certain classes of case, such as economic migrants and students. This is to enable the Secretary of State to process high volumes of applications in a fair and reasonably expeditious manner, according to clear objective criteria. This is in the interests of all applicants. It also assists applicants to know what evidence they have to submit in support of an application.”

He went on, at para. 29, to refer to the two passages from the judgment of Sullivan J in Alam quoted above and, at para. 30, to their endorsement by Davis LJ in Rodriguez. He emphasises the importance of the PBS being “clear and predictable” (para. 31) and “straightforward and reasonably automatic” in its operation (para. 32). He describes it at para. 36 as “intended to minimise the need for making sensitive and difficult evaluative judgments”. He distinguishes the well-known cases of Thakur [2011] 151 (IAC), Patel [2011] UKUT 211 (IAC), and Naved [2012] UKUT 14 (IAC). Likewise, Briggs LJ refers, at para. 59 of his judgment, to “the simplicity, predictability and relative speed of the … process” being in accordance with “the thrust of the PBS regime as laid down by the Immigration Rules”.

In SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426 the appellant had applied for leave to remain under the PBS. One of the requirements was that he should demonstrate his proficiency in English. That could be done in various ways, including the supply of a certificate from an institution which had awarded him a degree for a course taught in English. He had been studying at an institution called the British Institute of Commerce (“BIC”), but the degree for the course was awarded by Coventry University. In support of his application he supplied a document from BIC confirming the award of his degree, but he did not provide a certificate from the University itself. It was his case that he should have been given the opportunity to supply the correct document, which he could readily have done if asked. He contended (a) that the case fell under head (ii) of sub-paragraph (b) of paragraph 245AA – “document … in the wrong format”; (b) that, even if it did not, the EFP supplemented paragraph 245AA and required a more generous approach; and (c) that, irrespective of either the Rules or the EFP he should have been accorded such an opportunity as a matter of common law fairness.

This Court rejected element (a) in the appellant’s case. Elias LJ, with whose judgment Vos LJ agreed, said at para. 14:

“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. … 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.”

However it accepted element (b) and allowed the appeal. The version of the Guidance in force at the time of the impugned decision (April 2013) was version 1 (Footnote: ³). Elias LJ observed at para. 21 of his judgment that the terms of the Guidance were “much wider” than those of paragraph 245AA. He referred both to the fact the introductory section at p. 2 referred generally to the application of evidential flexibility “when an application has missing evidence or there is a minor error”; but he also pointed out, at para. 23, that “the exceptions” – that is, the specific “Obtaining Additional Information” provisions at p. 5 – were also much broader. That being so, he did not believe that the Guidance could be treated simply as a gloss on paragraph 245AA and constrained by its terms: it was a free-standing policy on which the appellant was entitled to rely. On that basis, he should have been given the opportunity to provide the correct certificate, since there was every reason to believe that it existed. Having reached that point, Elias LJ did not consider it necessary to address the argument based on common law fairness. I should add that he emphasised, at para. 27, that the Court was only concerned with the Guidance as it stood in April 2013 and not with the later versions which it was aware existed.

Although Beatson LJ agreed with Elias LJ’s reasoning on the effect of the Guidance, he delivered a separate judgment making some observations about the common law fairness argument. At para. 29 of his judgment he referred to EK (Ivory Coast) as having established that the context of the PBS informs the way in which the general public law duty of fairness operates because “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”. He continues:

“30.

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.

31.

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.”

Mr Poole submitted that the effect of the final sentence was that Beatson LJ was of the view that compliance with the EFP would in practice always satisfy the requirements of common law fairness. Although the point does not fall for decision in this case, any more than (as Mr Poole acknowledges) it did in SH itself, I should say that in my view such a reading is inconsistent with what Beatson LJ says in the second half of para. 30. I understand his position to have been that the role of the common law duty of fairness is “constrained” in the context of the PBS, as he put it at para. 29, but not that it is altogether eclipsed.

Nyasulu v Secretary of State for the Home Department [2016] EWCA Civ 1145 is a recent decision of this Court in a PBS case. I need not set out the details of the issue, which is different from those before us. The only relevance of the case for our purposes is that it contains a helpful summary, at para. 17 of the judgment of Sales LJ, of the effect of the learning to which I have already referred (together with one or two other cases to which we were not separately referred). This reads:

“The Points Based System is intended to operate in a way which is simple, predictable and expeditious\; see EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517, paragraph [59], per Briggs LJ; and Kaur v Secretary of State for the Home Department [2015] EWCA Civ 13, paragraph [41], per Burnett LJ. It does not allow for any concept of a “near miss” in an application. An application either satisfies the relevant points requirement or it does not: see e.g. Miah v Secretary of State for the Home Department[2012] EWCA Civ 261, [2013] QB 35, paragraph [25]; and Patel v Secretary of State for the Home Department[2013] UKSC 72, [2014] 1 AC 651, paragraphs [45]-[57]. The general public law obligation of fairness has to be applied in the context of the Points Based System having regard to these features of the regime: see EK (Ivory Coast) at paragraph [31], per Sales LJ. There is no legal requirement of fairness which imposes any duty on the Secretary of State to explain the Immigration Rules to an applicant or to do anything further to help an applicant get her application in order if there is something wrong with it. On the contrary, the onus is clearly on the applicant to ensure that her documentation is in order and to check that she is submitting the correct materials as required by the relevant rule: see Alam v Secretary of State for the Home Department [2012] EWCA Civ 960, [2012] Imm AR 974 at paragraph [45], per Sullivan LJ; Rodriguez v Secretary of State for the Home Department [2014] EWCA Civ 2, at paragraph [100] per Davis LJ; and EK (Ivory Coast) at paragraph [29], per Sales LJ, and paragraph [59], per Briggs LJ.”

In both Mandalia and SH (Pakistan) the challenge to the Secretary of State’s failure to exercise evidential flexibility succeeded because of the particular language of the EFP as it then stood. In Mandalia there was no need to consider paragraph 245AA because it was not in force at the material time (though NB Lord Wilson’s comment referred to at para. 42 above). In SH (Pakistan) paragraph 245AA was in play, butthe terms of the Guidance were held to create an obligation on the Secretary of State to exercise evidential flexibility in some circumstances which the rule did not cover. But the language which was decisive in those cases has now changed: that process started with version 2 of the Guidance, which was effective from 20 May 2013, and was completed by version 4, effective from 1 October 2013. The question whether the EFP can be treated as a source of more extensive rights than appear in paragraph 245AA itself must be judged on the basis of the Guidance as it stood at the material time.

As to that, I have already said that the terms of the section on “Obtaining Additional Information” were at the time with which we are concerned indistinguishable from those of paragraph 245AA itself. Mr Mustafa pointed out that the opening paragraphs of the introductory section remained substantially identical up to and including version 7, and that they referred generally to asking for clarification or for missing documents or information where “there are minor errors or omissions on specified documents”. Mr Balroop likewise focused on this phrase, submitting that it demonstrated, as one would expect, that the Secretary of State’s intention was that otherwise valid applications should not fail simply because of minor mistakes. That is a fair point as far as it goes, but the Guidance must be read as a whole and in the context of the rule to which it relates. If the introductory section were read as stating a general policy that caseworkers should seek further information in any case where there was a minor error or omission that would make nonsense of the (now) carefully limited terms of the section on obtaining additional information, and indeed of the equally limited terms of paragraph 245AA itself. In my view it should be read as simply introducing the subject-matter of the EFP, with the actual content of the policy appearing in the subsequent sections. I appreciate that, as Mr Mustafa pointed out, Elias LJ in SH (Pakistan) did not rely only on p. 5 of the Guidance but also on p. 2. But at that stage the two parts of the Guidance gave an essentially consistent message: the policy was a broad one, and the particular cases identified at p. 5 were stated to be only examples. A different approach is necessary now that their provisions diverge.

Accordingly in my view the correct construction of versions 4-7 of the Guidance is that there is no longer a general policy to allow correction of minor errors: evidential flexibility will only apply in the particular cases provided for by paragraph 245AA. That may seem hard, but the reasons for having a more restricted policy are articulated in the authorities referred to above and summarised in Nyasulu. The mismatch with the Rules which was identified in SH (Pakistan) no longer exists. In fact I strongly suspect that that mismatch was always unintentional and that it was the result of incompetence in ensuring that the requirements of the Rules and the Guidance coincided. It would hardly be the first time that such mistakes have occurred in the Home Office: the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.

That analysis is consistent with that adopted by the Secretary of State herself in version 8 of the Guidance. In the section referred to at para. 35 (3) above, caseworkers are directed to concede challenges to decisions to refuse evidential flexibility taken at any time prior to the coming into force of version 4 of the Guidance (i.e. on or before 30 September 2013), on the basis that the ratio of the decisions in Mandalia and/or SH (Pakistan) would apply to such cases. The position is regarded as being changed by the implementation of version 4, which “mirrors the requirements in paragraph 245AA”.

As I have acknowledged, the fact that the scope of the EFP is now much more limited than originally increases the scope for harsh outcomes – that is, for cases where a PBS application fails because of a minor error or omission which could have been rectified if the applicant was notified of it but which does not fall into one of the specific categories identified at paragraph 245AA (b). There may be very particular cases where such an outcome can be avoided by the application of the common law duty of fairness; but I agree with Beatson LJ in SH (Pakistan) that the effect of that duty is constrained by the context of the PBS as expounded in the various authorities reviewed above. The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right.

I should deal at this stage with one particular issue about paragraph 245AA which arises in both Khan and Negbenebor. It is clear both from the introductory words of sub-paragraph (b) and from the first sentence of sub-paragraph (c) that paragraph 245AA is intended to operate only where the applicant has submitted a specified document: what sub-paragraph (b) does is to give the applicant the opportunity to correct errors of the defined kinds in a specified document which has been submitted. But that leads to a logical problem. Mr Malik – who principally argued this point for the Secretary of State – contended that a document which fails to comply with the various requirements contained in the relevant SD paragraph (or equivalent), or indeed with paragraph 39B (d) (originals not copies), cannot be a specified document at all, with the result that the conditions for the operation of paragraph 245AA would not arise.

Logical as such a submission might appear if viewed in isolation, it plainly cannot be correct in the context of paragraph 245AA, since if it were accepted there would be no scope for the operation of sub-paragraphs (b) or (d). It is easy enough to resolve the conundrum as regards heads (i)-(iii) under sub-paragraph (b) (and heads (i) and (ii) under sub-paragraph (d)): the draftsman plainly intended that what was submitted as a specified document but which was in the wrong format, or was a copy instead of an original, would count as a specified document for the purpose of the paragraph – in this context “specified document” means “purported specified document”. It is not quite so easy as regards head (iv) under sub-paragraph (b) (and head (iii) under sub-paragraph (d)) – that is, where the defect is that the document “does not contain all of the specified information”. Identifying exactly what that phrase is intended to cover needs some unpacking. It cannot have been intended that a document that simply showed none of the specified information at all would be covered by the rule. If, to take an extreme example by way of illustration, the requirement were that the document showed that an applicant had a Ph D but what was submitted showed instead that he or she had only an MA, that could not sensibly be described as a case where the document “did not contain all of the required information”: it did not contain the essential information required and would simply be the wrong document. That is common sense, but it is reinforced by the phraseology of “not … all of the specified information”. It is accordingly, I believe, necessary to distinguish between, on the one hand, cases where the information which is missing is so wholesale as to affect the fundamental character of the document and, on the other, cases where it is secondary, so that it makes sense to say that the document is still of the kind specified albeit that it does not contain the particular information in question. Such a distinction seems to me to reflect the underlying policy behind the rule, as reflected in the reference in the introductory section of the Guidance to “minor errors”.

In so far as that approach may be said to depart from the literal language of the Rules – though I do not believe it really does – there is warrant for such an approach in the decision of the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 – see esp per Lord Brown at para. 10 (p. 55 B-C).

Shortly before the hearing Mr Mudiyanselage notified the Court that he would not be attending or represented on the appeal: the Court was asked to decide the appeal on the basis of his written submissions. Since the appeal had been listed as one of a group of representative cases, we decided that we should take that course and reach a reasoned determination of the issues.

On 5 April 2013 Mr Mudiyanselage applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. He was required by Appendix C (incorporated by paragraph 245DD (d)), to satisfy the maintenance requirements by showing that he had access to a minimum level of funds for a continuous period of at least 90 days ending no earlier than 31 days before the date of the application: paragraph 1B of Appendix C specified the documents to be supplied. The documentation which he submitted from the financial institution holding the funds on which he relied – Abans Finance Ltd – stated that it had held them only from 18 January 2013, i.e. for less than ninety days. In fact the funds had been held since 18 January 2012, and it was Mr Mudiyanselage’s case that his solicitors, Liyon Legal, wrote to the Secretary of State on 30 May 2013 pointing out the error and saying that they would supply corrected documentation from Abans as soon as possible. The Secretary of State has no record of receiving such a letter, and her decision refusing the application, dated 11 June 2013, was made without reference to it. A corrected document was indeed eventually supplied on 12 August, but that was two months after the decision had been made.

The Secretary of State’s decision letter referred to the fact that Abans’ letter did not show that the funds in question had been held for a sufficient period. It went on to say that

“… the decision has been made not to request additional documentation or exceptionally consider the application under the provisions of paragraph 245AA as it is not anticipated that addressing the omission or error would lead to a grant of leave.”

That wording reflects the provisions of paragraph 245AA (c) and appears therefore implicitly to accept that the case prima facie fell within sub-paragraph (b). Mr Poole accepted that that was how it read, but he said that that was not in fact the case, since the errors in the document did not fall within any of the three heads in sub-paragraph (b) as it then stood (see para. 12 above). To anticipate, no point was taken on this in the grounds of appeal and we are prepared to proceed on the basis of what the position in fact was: it would be futile to allow the appeal on the basis of errors in the reasoning of the decision letter if the same result would be reached on the application of the correct approach.

Mr Mudiyanselage brought judicial review proceedings to challenge the refusal of his application. Permission was refused on the papers by UTJ Goldstein on 3 September 2014 and by UTJ Craig, following a hearing (at which both parties were represented), on 30 October 2014.

The application for permission to appeal to this Court was stayed pending the outcome in Mandalia; but permission was eventually given by Beatson LJ on the papers on 28 January 2016. It was originally listed to be heard in February 2017 with two other appeals raising similar points, but for reasons that are unclear that hearing did not proceed.

Mr Mudiyanselage’s grounds of appeal were settled by Mr Abdurahman Jafar of counsel in the form of a document which, unhelpfully, rolls up the grounds and the skeleton argument. (Mr Jafar also put in a short note on the judgment in Mandalia.) Four grounds are pleaded, which I consider in turn.

This ground is headed “Paragraph 245AA of the Immigration Rules”. The submissions that follow are rather diffuse, but the essential point appears to be that the documentation supplied by Mr Mudiyanselage purportedly in accordance with Appendix C was “in the wrong format” and so attracted the obligation under sub-paragraph (b) to give him the opportunity to correct it.

I do not accept that submission. I do not think that a document that supplies information covering the wrong period can be said to be “in the wrong format”. The error concerns the substantive content of the document rather than the way in which it is presented, which is essentially what I think is meant by “format”. That is consistent with the approach taken in SH (Pakistan): see para. 47 above. My conclusion seems to me to be inescapable as a matter of ordinary language and I need not rely on the example – that is, a document which is not on letterheaded paper as specified – which is included in later versions of the rule (and Guidance), though it seems perfectly apt as an example.

This ground is headed “Evidential Flexibility Policy”. It is, again, very diffusely pleaded, but what it comes down to is that the submission of a document covering the wrong dates was a “minor error” of the kind covered by the Guidance in its then form, which was version 2, and that accordingly the EFP required, even if paragraph 245AA did not, that Mr Mudiyanselage should be given the opportunity to correct it. The skeleton was drafted before SH (Pakistan), but the point made is essentially the same as succeeded there.

Mr Poole’s first point in in his oral submissions was that that ground could not succeed because version 2 of the Guidance (unlike version 1, which was the relevant version in SH (Pakistan)) goes no further than paragraph 245AA. I am reluctant to decide the appeal on this basis. Although the wording of version 2 is indeed closer to that of paragraph 245AA than that of version 1 the assimilation is not complete – see para. 28 above – and we were not addressed by Mr Poole on the significance of the remaining differences. I cannot help observing that the Secretary of State’s own guidance regards the assimilation of paragraph 245AA and the EFP as occurring only with the change from version 3 to version 4 – see para. 55 above.

This was not, however, the only string to Mr Poole’s bow. It was submitted in his skeleton argument that

“… the fact that unlike SH (Pakistan), where there was every reason to believe that the missing evidence (in that case the applicant’s original degree certificate) existed and could readily be obtained and produced, there were no reasons for the Respondent to think an error had been made by Abans Finance Plc, let alone think the Appellant could provide evidence that he met the maintenance requirements.”

It has of course always been a feature of the EFP, going back to the process instruction considered in Mandalia, that requests for further information should not be speculative and that, to use the language of version 2 of the Guidance, there should be “sufficient reason to believe the information exists”.

On the face of it, that submission is compelling. When an applicant submits a document in which an institution says in terms that it has had held funds from a specified date, the fact that that date is too late for the purposes of his or her case affords no reason to believe that the funds had in fact been held from an earlier date. However, there is the complication in the present case that Mr Mudiyanselage’s solicitors were said to have written to alert the Secretary of State of the error before the decision was made.

As to that, the evidence is not satisfactory. A copy of the letter which Liyon are said to have sent was served with the claim form and it is endorsed “Recorded Delivery”. However there is no explicit statement that it was in fact sent, and no recorded delivery slip is produced. The statement of facts attached to the claim form says simply that “the claimant’s representative have [sic] informed the defendant” of the error: it does not refer to the letter having been sent or any proof of receipt having been obtained. (I note also that the statement is signed by Mr Mudiyanselage, but he is unlikely to have had any direct knowledge, and the statement ought to have been made by his solicitor.) The Summary Grounds of Defence, supported by a statement of truth from the responsible GLD lawyer, denies that any such letter was ever received. That denial is, inevitably, based on the fact that the letter does not appear in the file, but reference is also made to Liyon’s failure to supply a recorded delivery receipt.

However, I do not think it would be right to dismiss the appeal on this basis alone. UTJ Craig records that he was shown “a copy of a receipt showing that a recorded delivery letter was sent on that date” (though no copy was filed for the purpose of the appeal and we have not seen it), and although that formulation itself raises further questions it is necessary to remember that the hearing before him was for permission only. He refused permission on the basis that even if the letter of 30 May 2013 was sent it did not bring paragraph 245AA into play.

Mr Poole submitted that that was correct. Paragraph 245AA (a) says in terms that 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 subparagraph (b) applies”.

He submitted that it is entirely understandable why there is such a rule. It is an important discipline that applicants should submit all the required material in the correct form with the original application. It makes for more efficient and orderly decision-making if the caseworker knows that he or she need only look at the information contained in, or documents submitted, with the original application and permit them to submit further or corrected documents thereafter is liable to cause precisely the kind of uncertainty, and possible scope for administrative error, that occurred in this case.

I see the force of that, and I would add that allowing unrestricted additions or corrections to pending applications would tend to encourage a lax approach on the part of applicants or their advisers. However, I am not sure that paragraph 245AA (a) gives the complete answer in this case. Liyon’s letter of 30 May 2013 was not belatedly submitting (corrected) specified documentation: it was simply drawing attention to an error in the documentation submitted and saying that a corrected version would be submitted as soon as possible. Its legal relevance is that, if it had been before the decision-taker, operating under the more generous regime apparently in place in June 2013, he or she would have had “reason to believe” that the missing information could be supplied.

That being so, the real question seems to me to be one simply of fairness. In the circumstances of this case, does fairness require that the Secretary of State should reconsider her decision if it becomes clear at a full hearing that Liyon’s letter was indeed sent but for some reason failed to find its way onto the file ? I do not believe that it does, for a combination of two reasons:

I should add one coda on this issue. Notwithstanding the formal requirements of paragraph 245AA, I would not regard it as good practice on the part of the Secretary of State deliberately to ignore additional or correcting information which in fact reaches the decision-taker before the decision is made, and which is otherwise unproblematic, only on the basis that it was not submitted with the original application. In such a case it is entirely proper for her to overlook the non-compliance; and I expect that in practice that is what she does.

This ground is headed “Unfairness”. The points which it makes are in substance addressed by what I say at para. 76 above. Mr Jafar refers to an observation at para. 21 of the judgment of the Upper Tribunal in Naved that:

“An application is outstanding (and therefore information can be supplied to support it) until it is lawfully determined [emphasis supplied].” 

But that decision pre-dates paragraph 245AA, and the case was in any event concerned with a different point.

This ground is headed “Decision based on Erroneous Fact”. Mr Jafar refers to the well-known authorities that establish that in certain circumstances judicial review may be available where a decision is vitiated by a mistake of fact and says simply that the Secretary of State proceeded on the mistaken basis that Mr Mudiyanselage did not have the requisite funds for the requisite period. But those authorities can have no bearing in a case of this kind, where the Secretary of State was entitled, if not indeed obliged, to make her decision on the basis of the material supplied.

I would dismiss Mr Mudiyanselage’s appeal. It is a misfortune for him that Abans supplied him with an incorrect document, but he and his solicitors failed to spot the error and they must take responsibility for what they submitted. I do not believe that he was entitled to an opportunity to correct the error, whether under paragraph 245AA or the EFP as they stood at the time in question or as a matter of general fairness.

On 25 February 2015 Mr Khan applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. He was required by paragraph 245DD (b) to have a minimum of 75 points for “Attributes” under Appendix A. The relevant table was table 4, head (d) (iii) of which required him to have been continuously engaged in business activity since before 11 July 2014 and up to the date of his application. By paragraph 41-SD (e) he was obliged to provide evidence showing that he satisfied that requirement in the form of (so far as relevant for our purposes):

“(iii)

one or more of the following specified documents covering (either together or individually) a continuous period commencing before 11 July 2014 up to no earlier than three months before the date of his application:

(1)

advertising or marketing material, including printouts of online advertising, that has been published locally or nationally, showing the applicant's name (and the name of the business if applicable) together with the business activity or, where his business is trading online, confirmation of his ownership of the domain name of the business’s website,

(2)

article(s) or online links to article(s) in a newspaper or other publication showing the applicant's name (and the name of the business if applicable) together with the business activity,

(3)

information from a trade fair, at which the applicant has had a stand or given a presentation to market his business, showing the applicant's name (and the name of the business if applicable) together with the business activity, or

(4)

personal registration with a UK trade body linked to the applicant's occupation”.

Heads (1)-(4) are alternatives and we are only directly concerned with (1), but I have set out (2)-(4) because their terms, or at least those of (4), have some marginal relevance to the discussion below; and head (4) is directly in issue in the case of Negbenebor.

Head (1) is poorly drafted. I note two problems in particular:

In purported fulfilment of the requirements of head (1) Mr Khan submitted a number of copy pages whose nature is hard to determine from the very poor photocopies with our papers. They include print-outs of pages from the website of a business called Farman Services UK Ltd, of which (though this is not apparent from the materials themselves) Mr Khan was a director. They also include what look like entries for Farman in online business directories, but they are described in some of the papers as “flyers”. Ultimately it does not matter, since they are clearly advertising material of some kind.

All the pages in question are either undated or dated from two years previously; and it is not disputed that what had happened is that Mr Khan re-used documents which he had supplied with a previous unsuccessful application in 2013. To anticipate, it seems clear that in those circumstances the documents did not comply with the requirements of paragraph 41-SD (e) (iii), since the material to be provided must cover the specified period, which goes up (in his case) to 25 November 2014 (being three months before the date of the application).

The application was refused by letter dated 25 March 2015. The reason for refusal given is that:

“The evidence that you have submitted in relation to advertising material is not acceptable as it does not cover a continuous period commencing before 11 July 2014, up to no earlier than three months before the date of your application. Additionally, you have not submitted any evidence of a business website, or of membership to [sic] a relevant UK trade body.

You have not therefore submitted the evidence specified at paragraph 41-SD (e) of Appendix A of the Immigration Rules.”

The first sentence of the first paragraph is self-explanatory and makes essentially the point which I have made above. The second sentence is rather odd. The reference to membership of a trade body appears to be to head (4), and it might be thought that the caseworker is simply making the point that if Mr Khan fails to satisfy head (1) he cannot get home on any of the alternatives. But there is no reference to heads (2) and (3). Nor is it clear what the relevance is of the statement that Mr Khan had submitted no evidence of a business website. It might possibly be a reference to the final lines of head (1), which I discuss at para. 82 above; but I am not sure. Mr Mustafa submitted that the statement is in any event wrong, since some of the material provided consisted of print-outs from Farman’s website. That appears to be so, subject to a possible issue about the relationship between Mr Khan and Farman which I discuss below; but it does not get over the problem about dates.

A later passage in the decision letter reads:

“In making the decision to refuse your application we have considered paragraph 245AA which explains the actions that we may take if specified documents are not submitted with an application. The Immigration Rules for evidential flexibility only cover missing documents from a sequence of documents that have been provided with the application, such as one bank statement missing from a series, or missing information from documents which have been provided. Therefore in line with paragraph 245AA we have reached a decision based on the evidence provided in the application as the reason of [sic] refusal does not fall in line with evidential flexibility.

Please note, on this occasion we have not carried out full verification checks on the documents you submitted or the statements that you have made on your application form as your application falls for refusal on other grounds as outlined above.”

On 19 June 2015 Mr Khan commenced judicial review proceedings to challenge that decision. Permission was refused by UTJ Reeds on the papers on 29 October 2015 and by UTJ Gill following a hearing on 15 January 2016.

On 11 November 2016 Beatson LJ gave permission to appeal in the following terms:

“In view of the Court of Appeal decision in SH (Pakistan) [2016] EWCA Civ 426 that the evidential flexibility policy is not intended simply to provide case workers with assistance as to how they should deal with the exceptions identified in paragraph 245AA of the Immigration Rules and the statement on page 4 of the decision letter that the immigration rules for evidential flexibility only cover missing documents from a sequence of documents that have been provided with the application or missing information from documents which have been provided is arguably too narrow.”

He refused permission on the other grounds advanced. Thus the issue before us proceeds on the basis that Mr Khan cannot rely on paragraph 245AA but may be entitled to rely on the arguably wider terms of the EFP, like the appellant in SH (Pakistan).

It follows from my conclusions at paras. 52-56 above that the ground in respect of which Beatson LJ gave permission must fail. At the time of the application the current version of the Guidance was version 7. That was, as I have said, in fundamentally different terms from version 1, which is what was before the Court in SH (Pakistan), and the ratio of that decision does not apply to it.

Although that conclusion is decisive of Mr Khan’s appeal, there are some other issues raised by Mr Mustafa which, given the nature of these proceedings, I think I should address.

First, Mr Mustafa submitted that Mr Khan’s case fell under head (iv) of paragraph 245AA (b): he had submitted specified documents but they did not “contain all the specified information”, namely dates demonstrating that they related to the specified period. This raises the question considered at paras. 57-59 above. If it were necessary to decide the point I think that the answer would depend on whether the documents in question were simply undated or whether they bore dates showing that they covered a different period from that specified. In the former case it would be natural to describe the advertising materials as specified documents and the missing dates simply as specified information which they failed to contain, but in the latter it seems to me that a document which is required to cover period A but which on its face covers period B is simply the wrong document: the distinction may seem fine but I believe that it makes sense. As it happens, it appears to be the case that some of the materials supplied by Mr Khan were dated and some were not; but even in relation to those which were not he would have fallen at the next hurdle because even the undated materials were in fact from the wrong period and he would therefore not have been able to supply the missing information.

Secondly, there was the issue of the correct construction of alternative (1) under paragraph 41-SD (e) (iii) as noted at para. 82 (1) above. This is not straightforward, and on the basis of the limited submissions that we heard I would prefer not to express a view. I would point out that the current version of sub-paragraph (e) (iii) is differently structured, and the point is no longer of any general significance.

Thirdly, there was some discussion of whether, to the extent that Mr Khan might have been entitled to rely on evidence of a website, it was necessary for him to show that the domain name was owned by him personally, as opposed to by Farman. Since the hearing, Mr Poole has drawn our attention to the decision of Soole J, sitting in the Upper Tribunal, in Abdulsalam v Secretary of State for the Home Department: the decision is unreported and does not appear on BAILII (though maybe it should), but it is dated 12 December 2016 and has the reference JR/498/2016. He held that the domain name must be held by the applicant personally and not by a company, even if owned by him. Again, since that decision was not before the Court and we only heard limited submissions, I do not think it would be right to express a view about whether it was correctly decided.

Fourthly, UTJ Gill in refusing permission pointed out that Mr Khan had provided no evidence that he was the owner of Farman, and it was insufficient to show that he was a director. That went to the issue of whether he had complied with the requirements of table 4 and paragraph 41-SD in the first place rather than to the issue of evidential flexibility, which is the only issue before us. But I should say that I see considerable force in UTJ Gill’s point.

Finally, Mr Mustafa sought to make something of the statement in the decision letter that the Secretary of State had not carried out “full verification checks”. That is a red herring. Verification checks are aimed at establishing the genuineness of a specified document, where it is in doubt: see paragraph 39B (c) of the Rules. It was obviously unnecessary for the Secretary of State to carry them out in a case where she had decided that the documents submitted did not meet the requirements of paragraph 41-SD in the first place. Indeed I can see no need for the letter to have mentioned the issue in the first place; but caseworkers work from standard templates which tend (to put it politely) to err on the side of over-inclusiveness.

I would accordingly dismiss Mr Khan’s appeal.

Shortly before the hearing the Court was informed that the Secretary of State wished to concede MA’s appeal without a determination of the merits in accordance with paragraph 6.4 of Practice Direction C to CPR 52. We were in principle agreeable to that course, but no order was made in advance of the hearing in case there were aspects of the case of any wider significance. Having heard brief submissions from Mr Poole we were satisfied that that was not so, and we made the order accordingly.

On 27 May 2015 Ms Negbenebor applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. She is an IT specialist. She was subject to the same requirement as Mr Khan to supply the documents specified by paragraph 41-SD (e) (iii), as set out at para. 81 above. She was also required, because she was claiming points for being a director of a UK company as at the date of the application, to provide the specified documents required by sub-sub-paragraph (v) (2) (a), namely:

“a printout from Companies House of the company’s filing history page and of a Current Appointment Report, listing the applicant as a director of a company that is actively trading (and not dormant, or struck-off, or dissolved or in liquidation), and showing the date of his appointment as a director of that company”.

Sub-sub-paragraph (v) concludes:

“The evidence at (1) and (2) above must cover … a continuous period commencing before 11 July 2014 or 6 April 2015 (as appropriate), and ending on a date no earlier than three months before the date of his application.”

Again, as in the case of the provisions considered in Khan (see para. 82 (2) above), I think it is necessarily implicit in that that the document in question must show that it relates to the specified period; and Mr Karim did not submit otherwise.

As regards sub-sub-paragraph (iii), Ms Negbenebor opted for head (4) – “personal registration with a UK trade body linked to the applicant's occupation” – providing a certificate from a body called “CISCO”. As regards sub-sub-paragraph (v), she submitted an official Current Appointment Report for a company called Favsolutions UK Ltd, showing that she had been a director since October 2013; but it was dated 17 January 2014 and accordingly did not relate to the period specified. It is common ground that for that reason she failed to comply with the relevant requirements. (It seems that, like Mr Khan, she had fallen into the trap of recycling information supplied for a previous unsuccessful application.)

Ms Negbenebor’s application was refused on 7 July 2015. The letter is not very clearly expressed, but it is common ground before us that the effective grounds for refusal were (1) that CISCO was not a “UK trade body” within the meaning of paragraph 41-SD (e) (iii) (4); and (2) that the specified documents had not been supplied as required by sub-sub-paragraph (v) (2).

Ms Negbenebor brought judicial review proceedings. Following the grant of permission by UTJ McWilliams, the claim was heard before UTJ Peter Lane (as he then was) on 5 December 2016. It was Ms Negbenebor’s case:

UTJ Peter Lane accepted Ms Negbenebor’s case as regards (a) but he dismissed it as regards (b). He held that the Current Appointment Report was not a specified document. He said, at paras. 18-19 of his judgment:

“18.

… That document in my view plainly is not one that engages paragraph 245AA. It is not a document that failed to contain all of the specified information. On the contrary, it is a document which contains all the information it is designed to contain and which is entirely coherent and complete on its face.

19.

The problem with the document is that it is dated too early. It is, in other words, the wrong document. It would in my view be going much too far to interpret paragraph 245AA as encompassing documents that are the wrong kind of document because they are produced at points in time other than those required by the Rules.”

Permission to appeal was given by Hickinbottom LJ “in the light of Mandalia and SH Pakistan”.

The principal ground of appeal developed by Mr Karim orally was that the present case was indeed one where Ms Negbenebor had submitted a specified document, albeit one that did not contain the required information about the date. I cannot accept that, for the reasons given at paras. 57-59 above, as applied in Mr Khan’s case at para. 92. It was fundamental to the requirement of paragraph 245AA (e) (v) (2) that the Current Appointment Report relate to the specified period. I cannot improve on the succinct reasons given by the Judge.

Mr Karim also argued that even if the case was not caught by paragraph 245AA it fell within the scope of the EFP. That submission cannot succeed in the light of my conclusion that from version 4 of the Guidance onwards the EFP is no more extensive than paragraph 245AA: see paras. 52-56 above.

There was a third ground of appeal which Mr Karim did not pursue in his oral submissions, namely that the UT was wrong to address the question of the application of paragraph 245AA for itself: once it had found that the decision was flawed by a public law error as regards the CISCO certification it should simply have quashed it. In the circumstances I need say no more than that I regard that ground as hopeless. If the Secretary of State’s refusal of the application was plainly good in law, albeit only for one of the two reasons given, the UT was bound to dismiss the challenge.

I would accordingly dismiss the appeal.

If I had accepted Mr Karim’s oral submissions further questions would have arisen as to (a) whether the fact that the information that Ms Negbenebor was a Director of Favsolutions during the relevant period was ascertainable from Companies House brought the case within either head (2) or head (3) of paragraph 245AA (d); and (b) whether, if it did, it was unlawful of the Secretary of State not to exercise her discretion to ascertain it, given that that course is described as “exceptional” and that she expressly reserves her right to insist on the requirements as to specified documents being satisfied in full. But I do not propose to lengthen this judgment still further by addressing those points, since they do not fall for decision and they were not very fully argued before us.

The Secretary of State in her Respondent’s Notice sought to challenge aspects of the Judge’s reasoning on the “UK trade body” question. Since the appeal is to be dismissed that challenge is redundant and Mr Malik made it clear that if that were the case he did not seek a decision on it.

On 20 February 2015 Ms Igwe applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. She claimed points for being a director of a UK company called Empowerment Centre, Training and Consultancy Services Ltd (“ECTCS”), and she was accordingly, like Ms Negbenebor, required to provide the specified documents required by paragraph 41-SD (v) (2) (a) of Appendix A, including a Current Appointment Report showing her as a director of ECTCS: see para. 99 above. Her solicitors in their covering letter listed in five bullet-points the documents supplied under that provision, including an item described as “Companies House ref: 08298347”, which is said to have denoted the Current Appointment Report.

Ms Igwe’s application was refused on 13 March 2015 on the basis that a Current Appointment Report had not been submitted. The letter added that:

“The decision has been made not to request additional documentation or exceptionally consider the application under the provisions of paragraph 245AA. This is because you have failed to submit a document that is specified and, as per paragraph 245AA (c), we are not required to request any missing specified documents.”

Ms Igwe brought judicial review proceedings. Various grounds were advanced in the claim form but most are not live before us and I need not summarise them: it was, however, part of her case that she had indeed submitted a Current Appointment Report and that the Secretary of State had lost or overlooked it.

Following the grant of permission by UTJ Plimmer, the claim was heard before UTJ Jordan on 10 May 2016. He found as a matter of fact that no Current Appointment Report had been included, and he held that there was no obligation on the Secretary of State under paragraph 245AA to notify Ms Igwe of that omission and give her the opportunity to remedy it.

Ms Igwe sought permission to appeal to this Court on three grounds. The first was that UTJ Jordan was wrong to find that the Current Appointment Report had not been submitted with the application. The other grounds were, in summary, that he was wrong to hold that the case was not caught by paragraph 245AA (ground 2) and that he failed to consider whether, even if paragraph 245AA did not apply, the Secretary of State was obliged by the EFP to give Ms Igwe the opportunity to remedy her mistake (ground 3).

Beatson LJ refused permission on ground 1 but granted it on grounds 2 and 3. Like Hickinbottom LJ in Negbenebor his reason for doing so depended principally on SH (Pakistan).

It follows from my conclusion earlier in this judgment that neither point can succeed, and I mean no disrespect to Mr Balroop’s well-presented submissions if I take them briefly.

As to ground 2, Mr Balroop’s essential point was that it was apparent from other material submitted by Ms Igwe with her application that she was in fact at the material time a director of ECTCS. In his skeleton argument he relied on a screenprint from the Companies House website which had been submitted and which showed her as a director, but he was constrained to accept that it did not show that to have been the case throughout the relevant period, which was from 11 July to 20 November 2014, being three months before the date of her application. In his oral submissions he relied also on the fact that, for the purpose of a different provision, she had submitted the company’s accounts for the year ending 30 November 2014, signed by her as director on 17 February 2015. That does seem to cover the entire period. However it can still not get round the fundamental problem that the pre-condition for the operation of paragraph 245AA is that the applicant should have submitted the relevant specified document (albeit defective in one of the ways covered by sub-paragraph (b)): see both the introductory words of sub-paragraph (b) itself and the first sentence of sub-paragraph (c). The specified document in this case is, unequivocally, a Current Appointment Report: it is not a screenshot from the website nor a copy of company’s accounts, even if either does happen to contain the same information. This is not a “wrong format” or “missing information” case. The simple fact is that the Current Appointment Report was not supplied and that the accounts are a different, and wrong, document. The situation is essentially the same as that considered by Elias LJ in para. 14 of his judgment in SH (Pakistan): see para. 47 above.

Mr Balroop did, somewhat faintly, argue that the case fell within sub-paragraph (b) (i), because the five bullet points in the covering letter constituted a “sequence”, but the fact that numerous separate documents happen to be listed in that way plainly does not create a sequence in the sense of the rule.

That may seem – indeed it is – a highly formalistic approach; but, for the reasons already given, in adopting the PBS the Secretary of State has, for understandable if unattractive reasons, opted for a “tick-box” system. A case where the applicant has simply failed to supply a specified document does not attract the benefit of evidential flexibility.

As to ground 3, that cannot succeed in the light of my conclusions at paras. 52-56 above.

I would accordingly dismiss Ms. Igwe’s appeal. It is impossible not to have some sympathy with her, but the fact is that she or her advisers failed, as the Judge found, to supply one of the specified documents; and on the law as I would hold it to be that is the end of the matter.

This appeal is rather different from the others, and the issue of evidential flexibility only arises at the margins.

Mrs Kokab, who is the First Appellant, is a Pakistani national and at all material times resided in Pakistan. She is a widow and has no experience in business or employment.

On 17 June 2014 Mrs Kokab applied for leave to enter the UK for herself as a Tier 1 (Entrepreneur) Migrant and for the other three Appellants, who are her children, as her dependants. She relied on paragraph 245DB (f) of the Immigration Rules, which provided that, subject to exceptions which did not apply in her case and so far as material:

“... the Entry Clearance Officer must be satisfied that:

(i)

the applicant genuinely intends and is able to establish, take over or become a director of one or more businesses in the UK within the next six months;

(ii)

the applicant genuinely intends to invest the money referred to in Table 4 of Appendix A in the business or businesses referred to in (i);

(iii)

that the money referred to in Table 4 of Appendix A is genuinely available to the applicant, and will remain available to him until such time as it is spent for the purposes of his business or businesses.

(iv)

that the applicant does not intend to take employment in the United Kingdom other than under the terms of paragraph 245DC …”

The amount referred to in table 4 of Appendix A as applicable to her case was £200,000. Satisfaction of that requirement would earn her the requisite 75 points. I need not explain head (iv) because no issue arises about it on the appeal.

It will be seen that head (iii) refers to the money in question being “genuinely available” to the applicant and remaining available until spent for the purposes of the business. The term “available” is glossed at paragraph 245D (c) which reads, so far as material:

“Where paragraphs 245D to 245DF and paragraphs 35 to 53 of Appendix A, refer to money remaining available to the applicant until such time as it is spent for the purposes of his business or businesses:

(i)

'Available' means that the funds are

(1)

in the applicant’s own possession,

(2)

in the financial accounts of a UK incorporated business of which he is the director, or

(3)

available from the third party or parties named in the application under the terms of the declaration(s) referred to in paragraph 41-SD(b) of Appendix A.

(ii)

…”

(I set out sub-sub-paragraph (i) in full only for completeness: as will appear, we are concerned only with alternative (1).)

I should also set out the terms of paragraph 245DB (g)-(i). These read:

“(g)

In making the assessment in (f), the Entry Clearance Officer will assess the balance of probabilities. The Entry Clearance Officer may take into account the following factors:

(i)

the evidence the applicant has submitted;

(ii)

the viability and credibility of the source of the money referred to in Table 4 of Appendix A;

(iii)

the viability and credibility of the applicant's business plans and market research into their chosen business sector;

(iv)

the applicant's previous educational and business experience (or lack thereof);

(v)

the applicant's immigration history and previous activity in the UK; and (v) any other relevant information.

(h)

The Entry Clearance Officer reserves the right to request additional information and evidence to support the assessment in (f), and to refuse the application if the information or evidence is not provided. Any requested documents must be received by the UK Border Agency at the address specified in the request within 28 working days of the date of the request.

(i)

If the Entry Clearance Officer is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.”

The basis of Mrs Kokab’s application was that £200,000 was available to her, having been provided by her brother (who lived in the UK) and that she genuinely intended to invest that sum in the business of a UK company called First Assurance Services Ltd (“FAS”), where she would work as an “administrative partner”; and accordingly that the requirements of heads (i)-(iii) under paragraph 245DB (f) were satisfied. FAS was a small accountancy business in London owned and operated by a chartered accountant called Mr Ahmedani, who was the only fee-earner. Mrs Kokab submitted with her application a business plan for FAS, which noted that its current “total annual revenue” was £60,000 but that with the benefit of Mrs Kokab’s investment and her services as administrator it would be able to engage more staff and offer new services. Turnover was projected to increase after three years to over £280,000. The plan said that Mr Ahmedani would train Mrs Kokab in office management and customer relations management and that she should eventually obtain a CIPD qualification.

Mrs Kokab attended an interview with the ECO on 23 July 2014. By decisions of that date he refused her application and those of her dependants. His reasons were as follows:

“I am not satisfied with the genuineness of your application because I am not satisfied that the money is genuinely available to you. You state that it was gifted to you by your brother. He works as a chartered accountant and has a wife and 2 children to support. You are not aware of his annual earnings. It is difficult to envisage that, with a family to support and expenditure of his own, how he would be in a position to give you such a huge sum of money. Secondly, your plan is to invest this money in an insurance company. It is currently run by a gentleman called Mr Ahmedani who you only met in March 2014 whilst on a visit to the UK. He has been running this company, FASL, for 10 years and has only 3 clients, therefore it is difficult to see that there is any guarantee that your investment will make a difference. Thirdly, you stated that you have no relevant business experience at all and that you have had no input into the business plan submitted with the application. It is difficult to see how you will be an asset to the company given your lack of experience. In addition, you do not know what competition there is in the sector you are planning to invest in and do not appear to have carried out any research of your own. From the answers you have given, it is your brother and potential business partner who have engineered this venture.

You stated that your close family are all in the UK and that you need a partner who can help you so that you can raise your children. You said that the future is not secure in Pakistan. You have no one to turn to in Pakistan. This leads me to think that this application is primarily aimed at securing a long-term move to the UK for you and your children rather than by going there as a genuine entrepreneur.

Given all of this I am not satisfied as to your intentions in wishing to travel to the UK now. I am not satisfied that you genuinely intend to establish or take over a business or businesses in the UK and that you genuinely intend to invest the money in the business or businesses. This also means that I am not therefore satisfied that you will have all the funds accessible to you in the UK, and that you have scored a minimum of 75 points under Appendix A of the Immigration Rules. I therefore refuse your application under sub-paragraphs (b), (f) and (i) of paragraph 245DB of the Immigration Rules.”

(The reference in the first paragraph to FASL as an “insurance company” is clearly no more than a slip, probably attributable to the word “assurance” in its name. Although a point was taken on it in the UT it was not pursued before us.)

Mrs Kokab applied for an administrative review of the ECO’s decision but that was unsuccessful. The decision of the reviewing officer began by noting three points:

“- You state you are currently a housewife and care for your three children. You have acquired rental properties from your husband who passed away. You do not appear to have any relevant business experience, either in Pakistan or any out [sic] country.

-

You state you have previously been to the UK twice in 2011 and 2014 and more recently you met Mr Ahmedani who is a chartered accountant for First Assurance Services Ltd. He wants you to invest £200,000 into his business and work as an administrator. Your brother, who lives in the UK and also works as an accountant has offered to lend you £200,000. You do not know how much he earns.

-

You confirmed in your interview you had no input on your business plan and that it was drafted for you.”

He then pointed out that simply working as an administrator did not constitute establishing, taking over or becoming a director of a company within the meaning of paragraph 245DB (f) (i). Having referred to the provisions of paragraph 245DB (g), he said:

“Having assessed the Rules and in reference to my points above, I am satisfied the ECO has interpreted the Immigration Rules correctly and the decision is proportionate. I am not satisfied that your application or your answers represent a genuine application as an entrepreneur. Therefore I am not satisfied you should be awarded the required points as set out in Appendix A of the Immigration Rules.”

Mrs Kokab and her children brought proceedings for judicial review of the ECO’s decision. I need not set out the original grounds, since things have moved on. Permission was granted by UTJ Chalkley.

The claim was dismissed by a decision of UTJ Freeman dated 14 January 2016. A number of issues were considered which are not live before us. I can summarise his reasoning, so far as material, as follows:

There are two grounds of appeal against the decision of the UT. I take them in turn.

The first ground is that the UT misconstrued “the Immigration Rules relating to the availability of funds to the Appellant”. Mr Nicholson submitted that, once it was accepted, as it was in the UT, that the £200,000 was in Mrs. Kokab’s possession it was necessarily not only “available” but also “genuinely available” to her. It was thus not open to the ECO to find otherwise on the basis that it was only lent to her: whether that was so or not, the statutory test of (genuine) availability was met.

The short answer to that ground is that the ECO’s refusal does not depend on the question whether the funds were genuinely available to Mrs Kokab so as to satisfy paragraph 245DB (f) (iii). I appreciate that that is the point that he starts with in his reasons. But, as UTJ Freeman points out, he goes on to make two distinct points, which do not go to that head but, as is made clear in the final paragraph of the reasons, to heads (i) and (ii) – that is, he was not satisfied that Mrs Kokab intended to take over, establish or become a director of FASL or to invest the £200,000 in it.

That being so, it is not necessary to decide whether Mr Nicholson’s point about availability is right. However, I do not think it is. If Mrs Kokab’s brother placed the £200,000 in her account on the understanding that once she had obtained entry clearance she would return it to him (without, therefore, it being invested in FASL) it may indeed be that the funds would correctly be described as being in her “possession”, and thus available to her in the sense defined in paragraph 245D (c); but in my view the whole point of the requirement that they be “genuinely” available is to exclude cases where the money, albeit in the applicant’s possession, is held subject to constraints (whether or not formally enforceable) that will prevent it being applied to make the investment in question. Of course, if it is not genuinely available the applicant will not be able to satisfy heads (i) and (ii) either, so that it is somewhat artificial to view them separately; Mr Keith indeed made the point, which I would accept, that in practice the ECO can and should view the requirements of sub-paragraph (f) in the round.

Although the pleaded ground was limited to that set out above, Mr Nicholson in his skeleton argument and in his oral submissions advanced what seems to me a logically quite separate point, namely that it was not open to the ECO to reach his decision on paragraph 245DB (f) – and in particular on heads (i) and (ii) – on the basis of the factors on which he expressly relied, namely her lack of business experience or the fact that she had undertaken no market research of her own. He emphasised that the fact that an investment appeared to be commercially unviable, or otherwise unwise, was not a reason for refusal of entry clearance under the relevant provisions. Nor was the fact that the motive of the person making the investment (and/or of any third party giving them the funds with which to do so) may have been primarily in order to acquire an immigration status: that may often be the case, but it is irrelevant if there is indeed a genuine intention to make an investment fulfilling the requirement of the sub-paragraph.

I agree that question-marks over the commercial viability of a proposed investment or the fact that the applicant in making it may be motivated primarily by an intention to move to the UK are not – at least as far as appears from the provisions to which we were taken – as such reasons for refusing an application. However, even if they are inadmissible as considerations in their own right, they are plainly material to the central question of whether the applicant is indeed intending to make the qualifying investment at all: that would be obvious anyway but it is reinforced by the explicit language of paragraph 245DB (g). That was clearly the purpose for which the ECO relied on these factors, and I can see no basis for holding that the conclusion that he reached was perverse.

This ground relies on the provisions of paragraph 245DB (h), which “reserve the right” for the ECO to seek further information: see para. 127 above. As expressed, that imposes no obligation on him or her to do so in any particular case or kind of case, but Mr Nicholson submitted that in certain circumstances fairness might require that such a request be made, for the same reasons as lie behind the evidential flexibility policy – that alleged parallel being the only, and decidedly slim, reason for Kokab being listed with the other appeals before us. In the present case, he submitted, fairness required that, if the ECO was minded to find that the £200,000 had been put by Mrs Kokab’s brother into her account on a basis which meant that it was not “genuinely available” to her, she should have been given the opportunity to adduce evidence to rebut such a finding, and specifically a witness statement from him stating that the payment was an outright gift: he had in fact subsequently given such evidence in separate proceedings in the First-tier Tribunal in which she had (ultimately unsuccessfully) challenged the ECO’s decision on the basis that it was racially discriminatory.

UTJ Freeman accepted that in principle there could be cases where fairness required that an ECO request the provision of further evidence, and I too have no difficulty accepting that. But, as he said, the issue was whether this was such a case. I agree with him that it was not. In my view it might only have been necessary to consider asking for further evidence from Mrs Kokab’s brother if the ECO regarded (or should have regarded) it as likely that explicit confirmation from him that the payment was indeed an outright gift (supported, perhaps, by evidence that he could afford such a gift) would be decisive; and even then it would have been necessary to consider whether such evidence should have been provided with the original application. But that was clearly not what he thought; nor do I believe that it should have been. As discussed above, his view that it was implausible that Mrs Kokab’s brother would give her so large a sum for the purpose of the proposed investment was only one element in his overall judgment that her evidence of her intentions under paragraph 245DB (f) was simply not credible; and the other implausibilities on which he relied were cogent in any event.

I should add for completeness that, as I read his judgment, UTJ Freeman would have dismissed Mrs Kokab’s claim on the further ground that if the ECO had in fact given her the chance to adduce evidence from her brother, that evidence would (on the basis of what he subsequently told the FTT) have revealed that £200,000 represented two years’ gross earnings for him, and that evidence could not have undermined the ECO’s overall conclusion. We were not addressed on this part of his reasoning, and I prefer to express no view on it either way.

I would dismiss Mrs Kokab’s appeal.

I would dismiss all of the appeals save MA (Pakistan), which has been allowed by consent.

I agree.

I also agree. These are hard edged decisions but the requirements of the PBS, the Rules and the Guidance are precise. Those who seek to make applications of this nature must take the utmost care to ensure that they comply with the requirements to the letter; they cannot expect discretionary indulgence beyond the very limited areas provided by evidential flexibility. To such extent as this is not already obvious, it would be of value if any form or document made available to applicants to assist them made clear the vital importance of ensuring that the material provided meets the precise requirements of the Rules on the basis that it cannot be assumed that there will be a subsequent chance to correct or supplement that which has been provided.