In a long overdue Determination in Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC), the Upper Tribunal (presided over by Mr. Justice McCloskey and Upper Tribunal Judge Spencer) promulgated that the UKBA, pursuant to its Evidential Flexibility Policy letter of 19 May 2011, are required to contact applicants where mandatory evidence is missing from their applications, and be given the opportunity to provide this. The Upper Tribunal concluded that the UKBA is under a Public Law Duty to give effect to this Policy in all cases to which it applies.
Indeed, the Upper Tribunal seems to have stretched the principle further by clearly bringing it into the domain of Public Law jurisprudence, and thereby invariably extending its scope to applications that may not be directly covered by the UKBA Evidential Flexibility Policy letter.
The Upper Tribunal stated that:
"This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998".
The importance of this Decision is significant, when taken together with another recent Decision of the Upper Tribunal in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC), which followed the Court of Appeal jurisprudence in AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833.
It is common knowledge that many applicants for further leave to remain have had their applications refused because evidence that might have been available to them at the time of submitting the application was not supplied with the application or, as is often the case, was submitted but was either misunderstood or disregarded by the UKBA. Such applicants are faced with the difficult situation of deciding whether or not to re-apply, with the accompanying pit-falls of trying to meet the minimum maintenance requirements, trying not to fall foul of the overstay limit of 28 days, and more often than not ending up losing their employment, as they are technically an overstayer at the time of re-applying.
Applicants had also been hit by the entry into force of Section 85A of the Nationality Immigration and Asylum Act 2002, which also excluded introducing at the appeal stage evidence that was not submitted with their point-based system applications.
While we note that the UKBA had sought to expressly introduce the Evidential Flexibility Principle, albeit within much more narrow limits within Paragraph 245 of the Immigration Rules, even when properly applied, this is a far cry from achieving fairness demanded in the decision-making process.
This was so vehemently emphasised by the Upper Tribunal in the Rodriguez case.
It will be of particular interest to those applicants who are currently overstayers in the UK, having been caught out by the UKBA's failure to consider evidence available to them, and whose cases have failed at the Tribunal due to this evidence being excluded pursuant to Section 85A of the 2002 Act, that it is possible to raise a Petition for Judicial Review on the basis that the UKBA have failed to apply its Policy in considering their application, and/or that the Tribunal had failed to properly decide their cases as being contrary to law. The outcome thereby will be cases being remitted back to the UKBA for them to apply their Evidential Flexibility Policy. A successful Judicial Review will invariably allow such applicants to revive their previous applications, and may lead to a favourable result.
We note that some applicants may be significantly disadvantaged if, for instance, the purpose of such point-based system applications has been overtaken by events. However, other categories of applicants, such as those who applied under the Post-Study Work category, Tier 1 (General) category, Tier 1 (Entrepreneur) category, etc, may still be able to raise a Petition for Judicial Review, and have their cases re-considered, if they in fact have the required evidence as at the date of application or decision in certain cases.
Drummond Miller is currently taking steps in this regard to raise a number of Petitions to correct this anomaly, and applicants who are affected by such decisions should now know that there is still light at the end of the tunnel.
One would expect that the outcome of a successful Petition for Judicial Review in the circumstances is that an applicant, irrespective of when their application was initially made, will invariably have their Section 3C or 3D statutory right of residence re-activated retrospectively, and the slate will be wiped clean for applicants who may have thought that their case is dead and buried as they had become overstayers in the United Kingdom. A new day is dawning…