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Mudiyanselage v The Secretary of State for the Home Department  EWCA Civ 65 (30 January 2018) wrote:54. 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.
55. 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".
56. 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.