Another secret policy

[vinny]

Supreme Court upholds evidential flexibility policy > Mandalia v Secretary of State for the Home Department [2015] UKSC 59 (14 October 2015).

[Obie]

That is brilliant. Good to see some positive decision coming from the court.

[vinny]

Evidence Flexibility more flexible than 245AA

[Obie]

Great Vinny. Was looking for that post but could not find it

[vinny]

Points-based system: evidential flexibility.

[kaffuk]

And to add to this :

In R (on the application of Q and others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the Court of Appeal dealt with the principle of fairness as follows:

“69. ...It is further common ground that in deciding whether the applicant has so satisfied him the Secretary of State must act fairly, which means both that he must set up a fair system to enable the decision to be made and that he must operate the system fairly: see e.g. Gaima v Secretary of State for the Home Department [1989] Imm AR 205, applying Re HA (Infant) [1967] 1QB 617 at 630. What fairness requires of course depends upon the circumstances of the case.”

Therefore, in the event of any subjective perceived ambiguity, the Secretary of State for the Home Department should request for any further documentation that the Secretary of State for the Home Department additionally deems relevant.

In contextualising the Evidential Flexibility test with regards to me; the underlying principles were stated in a well-known passage in the speech of Lord Mustill in R v Home Secretary ex Doody [1994] 1AC 531 at 560:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer byname or to quote from, any of the other cited authorities in which the court have explained what is essentially an intuitive judgement. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected cannot usually make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”


The Supreme Court Judgment in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59  addressed the issue concerning the interpretation and application of the Home Office’s Evidential Flexibility policy. In Mandalia, the Supreme Court reviewed the Evidential Flexibility policy and ruled, inter alia, that the Secretary of State for the Home Department is obliged to request missing evidence. The importance of Mandalia is that the Secretary of State for the Home Department is not invited but obliged to request for documentation.

[vinny]

The spider’s web of the Points Based System > Mudiyanselage v The Secretary of State for the Home Department [2018] EWCA Civ 65 (30 January 2018).

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.