In the case of Mandalia v Secretary of State for the Home Department the Supreme Court has again underlined the importance of a public body's adherence to its own policies.
The principle that a person should be able to count upon the application of a relevant policy, whether he or she knows of its existence or not, has now been established at the highest level as a standalone ground of judicial review.
Background
Mr Mandalia came to the UK from India in 2008 in order to study. In February 2012, two days before his visa was due to expire, he applied to the UK Border Agency (the UKBA) for a further extension of it in order to study accountancy.
At present the rules governing such applications form part of the government's 'points-based system' for controlling certain types of non-EU immigration - a system which the Court of Appeal has described as having 'achieved a degree of complexity which even Byzantine emperors would have envied' (Pokhriyal v Secretary of State for the Home Department).
Under those rules Mr Mandalia was required to submit evidence with his application showing that he 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. Mr Mandalia accompanied his application with a bank statement which showed that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application. The statement which he provided did not cover six of the requisite 28 days.
The UKBA did not invite Mr Mandalia to remedy that deficiency and his application was refused.
The question for the Supreme Court was whether that refusal was unlawful in light of the UKBA's published instructions to its caseworkers which apply to their processing of such applications (the Instructions). (Although the Supreme Court suggests that the Instructions are no longer in force, we understand that they are still current - the Instructions are available here.)
The Instructions state that caseworkers should show some, albeit limited, flexibility in relation to applications which had not been accompanied by requisite evidence and made particular reference to bank statements missing from a series. In such circumstances caseworkers are instructed to contact the applicant before making a decision inviting them to submit the missing evidence within a certain timeframe.
The decision
Lord Wilson, delivering the unanimous judgment of the court, began from the well-established proposition that 'The lawful exercise of [statutory] powers can also be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such a policy gives rise' (R (Saadi) v Secretary of State for the Home Department).
He noted however that since the decision in Saadi, the courts have moved away from grounding a person's right to have a relevant policy applied to their case in the doctrine of legitimate expectation (which requires a public body to honour a person's expectation as to how that body will act on the basis of its explicit statements or previous practice). Lord Wilson affirmed that this right should now be viewed as a freestanding ground of judicial review in its own right which, although it has some links to legitimate expectation, arises directly from the principle of fairness.
Lord Wilson referred back to the Supreme Court's decision in R (Lumba) v Secretary of State for the Home Department in which it cited with approval the view of Lord Dyson in the Court of Appeal that -
'35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute.'
Lord Dyson articulated two qualifications to this principle with which the Supreme Court in Lumba also agreed -
- a policy should not be so rigid as to amount to a fetter on a decision-maker's discretion, and
- a decision-maker must follow his or her published policy unless there is a good reason not to.
In the context of Mr Mandalia's application, Lord Wilson was clear that the UKBA's instructions to its caseworkers did not offend either of these qualifications.
Much of the argument before the court turned on the interpretation of the Instructions and whether the fact that Mr Mandalia had submitted a single bank statement was sufficient to establish a 'series' such that the policy applied. It was on this point that the Court of Appeal had found against Mr Mandalia.
Lord Wilson was clear that the interpretation of a policy is a matter of law which the court must decide for itself and that previous suggestions that the courts should adopt the Secretary of State's own interpretation of her immigration policies unless it is unreasonable are inaccurate.
Against that background, the Secretary of State's suggested interpretation of the Instructions was given short shrift - being described by Lord Wilson as 'misplaced even at the high level of pedantry on which it has been set'. Mr Mandalia's appeal was allowed on the basis that, on a proper interpretation of the policy, he should have been given the opportunity to provide the evidence missing from his application.
Commentary
The decision in Mandalia is undoubtedly correct. On the point of principle, it seems hard to dispute that where a relevant policy exists a person should have the benefit of its application. On the point of interpretation, the Secretary of State's narrow view of the application of the Instructions was clearly at odds with their stated intent of introducing some flexibility in terms of the assessment of applications. It did not help the Secretary of State's case that it was clear that throughout the relevant period Mr Mandalia had more than double the funds required in his bank account.
Although it found its way to the Supreme Court on the basis of a dispute as to the interpretation of the particular policy in question, the case served as a useful vehicle for the Supreme Court to explicitly affirm the principles which the courts will apply when considering a claim that a relevant policy has not been applied.
The confirmation by the Supreme Court that a person's right to have such a policy applied to their case can be a freestanding ground of judicial review which has its root in the requirements of fairness is to be welcomed. This is because the previous linkage of that right to the doctrine of legitimate expectation was conceptually unsatisfactory. This was particularly so in cases where the claimant was unaware of the policy in question at the time of the decision - such that the expectation in question was a legal fiction - or where the policy in question was guidance issued by one public body to another (such as the Department of the Environment's guidance to local planning authorities).
Whether cast in terms of legitimate expectation or a standalone right to have the policy applied the Supreme Court would undoubtedly have reached the same decision in Mandalia.
On a more practical level, therefore, the case is a useful reminder for public authorities of the following important points with respect to policies -
- Policies should be drafted in as clear a way as possible as a public body will not be able to rely on the deference of a court to its preferred interpretation. If a public body wishes a policy to be interpreted in a particular way the drafting should unambiguously support this.
- Public bodies should be careful to always consider and apply a relevant policy to a person's case. The right of a person to have a policy applied to their case will apply whether or not they are aware of its existence - although, following Lumba, policies which touch upon important issues or fundamental rights should generally be published.
- Policies should be applied consistently, subject to the need to ensure that a public body's discretion is not unduly fettered and that there are no good reasons to depart from a policy in a particular case.
- What a court is likely to consider a policy is not confined to outward facing documents which are published for the benefit of the public. As was the case in Mandalia, 'policies' to which the points made above apply can encompass internal documents which outline practices, procedures or guidance for staff, whether or not these are published.
Finally, for those dealing with public bodies, it is worth checking whether the public body has published any document outlining any processes or guidance to be followed by its staff in making a particular decision as the judgment in Mandalia reaffirms that such documents can, in themselves, generate rights. Where no such document is published it can be worth asking whether any exists and, if so, seeking its disclosure.