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Evidential flexibility in immigration cases

Written by Nazmun Ismail, 15 October 2015

Mandalia v Secretary of State for the Home Department [2015] UKSC 59

The issue of evidential flexibility in immigration cases has been the subject of intense debate and controversy since the Government was given permission to appeal out of time by the Court of Appeal against the decision of the Presidential Tribunal in Rodriguez (flexibility policy) [2013] Imm A.R 509.

The Court of Appeal [2014] Imm. A.R 588 went on to conclude that the three conjoined appeals, including that of Mr Mandalia, had to be dismissed. Mr Mandalia appealed to the Supreme Court against the Court of Appeal's decision.

In an important judgment the Supreme Court has allowed Mr Mandalia's appeal. The Supreme Court noted that the issue was only ever whether or not the Appellant's failure to see in the smallest of small print of his 43 paged application form that he had submitted to the Home Office that he had to supply bank statements for a period of 28 days and not as he had done, for just 22 days.

How did the state of the law mean that such a simple error could lead to such a drastic refusal of leave to remain for an otherwise star student in the UK and who had more than double the required £5,400 of funds at all times in his bank account?

The Supreme Court's judgment deals with this and explains that nascent reservations about the PBS had not been easy to be suppress, "but suppressed they must be". Nonetheless the judgment went on to:

(a) Heavily criticise the Home Office Presenting Officer for failing even to bring the Evidential Flexibility Policy to the attention of the First Tier Tribunal Judge when the Appellant was unrepresented at that time;

(b) States that the insertion of section 85A Nationality Immigration and Asylum Act 2002 by section 19(2) of the UK Borders Act 2007 (which prevents evidence being taken into account if not submitted with the application to the Home Office) was "a controversial provision';

(c) Echoed and repeated the words of others, including those of Lord Justice Jackson that the Immigration Rules had now "achieved a degree of complexity which even the Byzantine emperors would have envied"; and

(d) Highlights that it is difficult for applicants, for many of whom English is not their first language, to navigate their way around the requirements of the PBS and Rules.

Clearly it would therefore appear that the Home Office can gain more respect for itself by firstly seeking to apply the Rules in a much fairer and flexible way as the evidential flexibility process instruction had said ought to be done, but secondly for it to also seek to set about making the Rules intelligible and transparent not just to the Home Office caseworkers but also for others. In particular for applicants because the vast majority of applicants still remain without legal representation.

About the author: Nazmun Ismail is a barrister at Central Chambers, Manchester. She was junior counsel for the Appellant at the Supreme Court and was led by Abid Mahmood of No5 Chambers.
Any views expressed are those of the author and do not necessarily represent the views of EIN