UK - Mandalia v Secretary of State for the Home Department - [2015] All ER (D) 97 (Oct)
| Country of Decision: | United Kingdom |
| Country of applicant: | India |
| Court name: | The Supreme court (Lady Hale DP, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes SCJJ) |
| Date of decision: | 14-10-2015 |
| Citation: | [2015] UKSC 59 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
The Supreme Court considered the appellant’s appeal against the decision by the defendant Secretary of State, by which his application for a Tier 4 student visa had been rejected, on the ground that the applicant had only provided bank statements covering 22 out of the required 28 days. The court held that the refusal of the appellant’s application was unlawful because according to the process instruction the UK Border Agency should not have rejected his application without previously giving the appellant the opportunity to repair the deficit in his evidence.
Facts:
The appellant, Mr Mandalia, originally from India came to the UK in 2008 in order to study. His visa was subsequently extended and was due to expire on 9 February 2012. On 7 February 2012, he submitted an application to the UK Border Agency to further extend his visa in order to enable him to study accountancy with the BPP University. Consequently, he applied for a leave to remain in the UK as a Tier 4 (General) Student. The rules referable to this type of application required the application to be accompanied by a bank statement showing that the applicant had held at least £5,400 for a consecutive period of 28 days ending no earlier than a month prior to the date of his application. The application form stipulated the amount that had to be held in the applicant’s account for a 28-day period but it provided no direct information as to how the 28 days were calculated. Instead, it referred the applicant to the “specified documents”, i.e. the Immigration Rules and the Policy Guidance.
The bank statements provided by the appellant covered 22 out of 28 days required and his application was refused on this ground. This refusal was initially appealed with the First-tier Tribunal (Immigration and Asylum Chamber), followed by an appeal to the Court of Appeal. Both appeals were dismissed.
Decision & reasoning:
The issue examined by the Supreme court was whether the UKBA had acted unlawfully in refusing his application without having first invited him to supply a further bank statement which showed that he had also held the required amount of at least £5,400 throughout the six preceding days.
The appellant contended that the agency had unlawfully departed from its policy set out in the process instruction entitled “PBS Process Instruction: Evidential Flexibility”. The process instruction issued by the UKBA to its caseworkers granted them flexibility to query details and request further information, such as missing wage slips or bank statements.
The defendant Secretary of State argued that, properly interpreted, the process instruction did not require the caseworker to alert the appellant to the deficit in his evidence before refusing the application. The defendant submitted that the caseworker could not have requested additional information, as the missing bank statement was not one missing from a series, given that no two pillars, marking the start and the finish of the series, had been set.
Lord Wilson dismissed this submission by the defendant as ‘high level of pedantry’ and construed “missing from a series” as a mere example of missing evidence that could be requested by the caseworker, taking into account that there was no limit on the amount of information that could be requested, provided that the request was not speculative.
The process instruction stressed the need for flexibility to the caseworkers when considering application such as the one of the appellant by telling them that: (a) there was no limit on the amount of information that could be requested, provided that the request was not speculative; (b) the bank statements missing from a series represented only an example of the further evidence which should be requested; and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt and it should be requested.
Therefore, the court ruled that the defendant had acted unlawfully because, properly interpreted, the process instruction obliged the UKBA to have invited the appellant to repair the deficit in his evidence.
The appeal was allowed.
Outcome:
Appeal granted.
Observations/comments:
Whilst the case relates to UK immigration law it arguably raises issues applicable to asylum law, namely the right to be heard, the right to good administration and the benefit of the doubt.
This case summary was completed by Angeliki Kotsidou, a LPC student at BPP University, Manchester.
Cited National Legislation:
| Cited National Legislation |
| UK - Nationality, Immigration and Asylum Act 2002 |
| UK - Immigration, Asylum and Nationality Act 2006 |
| UK - Immigration Act 1971 |
| UK - Immigration |
| UK - Borders Act 2007 |
Cited Cases:
| Cited Cases |
| UK - R. (on the application of Saadi and others) v. Secretary of State for the Home Department [2001] EWHC Admin 670, [2001] EWCA Civ 1512, [2002] UKHL 41 |
Other sources:
"A Points-Based System: Making Migration Work for Britain” Cm 6741
Immigration Rules, Part 6A: POINTS-BASED SYSTEM
Tier 4 of the Points Based System – Policy Guidance
“PBS Process Instruction: Evidential Flexibility”