Mandalia v Secretary of State for the Home Department

Facts

Mr Mandalia, an Indian national with leave to remain as a student, applied under the Tier 4 points-based system for an extension of leave. The rules required evidence that he had held a specified level of funds for a consecutive period of 28 days. The bank statements he supplied showed the required funds for a shorter period. The UK Border Agency refused the application without contacting him. A process instruction issued to caseworkers provided, in effect, that where evidence was missing or there were minor errors, the caseworker should contact the applicant and request the information before deciding the application.

History

His challenge to the refusal failed in the tribunals and the Court of Appeal dismissed his appeal. He appealed to the Supreme Court.

Issue

Whether the process instruction applied to an application where the bank statements submitted did not cover the full required period; and whether an applicant can rely on such guidance when he was unaware of it.

Held

Appeal allowed. The process instruction applied to the case, the caseworker should have invited Mr Mandalia to provide the missing evidence, and the refusal was unlawful.

Ratio

• A lawful policy of the executive, including internal guidance to caseworkers, must be followed unless there is good reason not to do so; this duty derives from the requirement that public authorities act consistently and in accordance with the rule of law, not from legitimate expectation, so the applicant need not have known of or relied on the policy.
• Read naturally, the process instruction required the caseworker to contact an applicant whose documents showed an identifiable deficiency, such as statements not covering the whole required period, before refusing the application.

The judgments

Key reasoning

• The process instruction expressed a policy of evidential flexibility, aimed at avoiding the refusal of applications for minor or easily cured evidential defects; its meaning was a question of law for the court.
• Because the duty to apply policy rests on consistency and the rule of law, it is irrelevant whether the applicant was aware of the instruction; what matters is that the decision-maker failed to apply the policy that governed the decision.

Where it fits in the module

On substantive legitimate expectations, Mandalia shows that much of the work once done by legitimate expectation in relation to policies is now done by a free-standing duty to follow policy, building on Lumba. Students should compare it with R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, and with the later approach in R (A) v Secretary of State for the Home Department [2021] UKSC 37 to challenges to policies themselves.

Criticisms

• Separating the duty to follow policy from legitimate expectation leaves unclear how far the good reason exception allows departure, and whether it is tested by proportionality or by rationality.
• Treating internal caseworker guidance as binding may discourage the executive from issuing flexible guidance, or encourage it to draft guidance restrictively.
• Holding that the meaning of policy is a question of law for the court gives judges significant control over the content of executive policy, which may be thought to sit uneasily with the discretion the policy was meant to structure.