What is Judicial Review Good For? Mandalia v. Home Secretary, [2015] UKSC 59

Paul Daly November 9, 2015

In a recent report, The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences, Varda Bondy, Lucinda Platt and Maurice Sunkin challenge “widely held and influential assumptions about the costs and misuse of JR” in Britain. On the contrary, they find, for instance:

  • JR claimants often win tangible benefits, such as the retention of services, often winning after their files has been remitted for a fresh hearing after a successful JR. Moreover, “the public bodies generally appear to have genuinely engaged with the issues raised and their engagement was not wholly defensive or negative”;
  • Legal aid helps claimants to achieve tangible benefits;
  • The JR process has often furthered good administration:

  • While JR imposes costs on public bodies it is acknowledged to enable improvements in the quality of public administrative and assist public bodies to meet their legal obligations. Even failed challenges were often considered to have led to improvements in the provision of services by public bodies and to more positive engagement between the parties

While it is certainly true — in Britain and elsewhere — that JR proceedings are sometimes launched cynically or more in hope than expectation, anyone with even cursory knowledge of this area can point to cases of maladministration remedied by the courts. And remember that the decided cases are just the tip of an iceberg of other claims that are settled or not pursued for other reasons. Mandalia v. Home Secretary, [2015] UKSC 59 is interesting in this light (see also Mark Elliott), especially because immigration and asylum cases were the largest proportion of the matters considered in the Bondy, Platt and Sunkin study.

M applied for an extension of a study visa. One of the criteria was access to funds, to be proved by a bank statement or statements demonstrating the applicant held more than £5,400 for a 28-day period. M submitted a bank statement — a sheet numbered “64” — that covered only a 22-day period. M’s funds during this period were well in excess of the required £5,400. Unbeknownst to M, an internal process instruction had been adopted, “allowing…caseworkers to invite sponsors and applicants to correct minor errors or omissions in applications”. One of the things the caseworkers were to look out for was “bank statements missing from a series”. However, M heard nothing further, until he learned his application had been refused.

The Home Secretary did not dispute that the process instruction ought to have been followed. Rather, the argument was that M’s missing documents were not part of a series, an argument that convinced the Court of Appeal: “this was not a “missing sequence” case; and it would again have been complete speculation on the part of the Secretary of State as to whether bank statements – if available at all – for the preceding period or the succeeding period would have shown the availability of funds in the required amounts.” But Lord Wilson considered this “submission to be misplaced even at the high level of pedantry on which it has been set”; at the very least, “It must have been obvious to the caseworker, as he studied statement numbered 64, that it formed the last in a series and that the statement or statements which covered the preceding six days, and which turned out to be the statements numbered 62 and 63, were missing from the series” (at para. 33).

In any event, the process instruction was quite clear that caseworkers should make non-speculative requests for similar material to that originally furnished by an applicant, to whom, moreover, the benefit of the doubt should be given. Accordingly:

Conferred, as he was, with that necessary degree of flexibility, how could the caseworker have followed the process instruction otherwise than by requesting Mr Mandalia to provide the statement or statements which covered the first six of the 28 days? Of course it would have seemed possible to the caseworker that, although Mr Mandalia had held more than double the requisite funds throughout the later 22 days, he had not held the requisite funds throughout the first six days. But why was that possibility more likely than that an applicant who had provided statements covering only the first and last of the 28 days had not held the requisite funds throughout the intervening 26 days? In one sense every request by a caseworker for further evidence would have been “speculative” but what was there in Mr Mandalia’s application to render a request to him more “speculative” than any other? Was there not, at the very least, doubt, the benefit of which should have been given to him? (at para. 35)

So much for the problematic treatment of M, something it took many years of administrative and judicial oversight to remedy.

There is another, more general issue raised by Lord Wilson’s reasons. The Home Secretary had suggested that her interpretation of the process instruction should be preferred unless it was shown to be unreasonable, to which Lord Wilson responded “it is now clear that its interpretation is a matter of law which the court must therefore decide for itself…” (at para. 31). Lord Wilson cited to R (SK (Zimbabwe)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2011] UKSC 23, at para. 36, where there is a similar assertion by Lord Hope of Craighead. Elsewhere in the world, this is known as the Auer deference issue, something that has prompted much discussion, so it is interesting to note how quickly the English judges have skipped over it.

 

This content has been updated on November 9, 2015 at 10:38.