The case of Sultana and Others (rules: waiver/further enquiry; discretion) [2014] UKUT 540 (IAC) (12 November 2014) involved refusals of entry clearance for a spouse and three children. The basis of refusal was that the sponsor was self employed, claimed to earn in excess of the minimum amount required — because of the three children the total earnings had to be at least £27,200 — but had failed to submit the required documents as set out in Appendix FM-SE of the Immigration Rules. This was in part because the sponsor worked partly cash in hand but it also seemed that some documents that were available had simply been omitted.

The family succeeded at the First-tier Tribunal but the Entry Clearance Officer appealed. The ECO appeal is ultimately allowed by the Upper Tribunal in a determination important for those dealing with Appendix FM applications that rely on specified documents.

The determination is that of President McCloskey and he takes the opportunity to give some general guidance on good practice in making applications to entry clearance officers:

When visa applications of this kind are being compiled, applicants and their advisers must obviously be alert to the totality of the applicable requirements enshrined in Appendix FM-SE. Alertness to the various obligatory requirements is obviously essential. We would also encourage applicants and their advisers who consider that any of the discretionary powers conferred on the ECO by paragraph [D] should be exercised in their favour to proactively make this case when submitting their applications. It would be highly desirable to draw to the attention of the ECO the specific provision/s of paragraph [D] invoked in support of a request to exercise discretion and to set out fully the grounds of such request. We confine ourselves to one pertinent illustration, arising out of the factual matrix of these appeals. If this sponsor genuinely cannot provide the necessary records concerning his decorating business, as it is a purely cash enterprise, he should, in any fresh application, specifically invoke paragraph [D](e) of the Appendix and make his case accordingly, advancing all relevant facts, justifications and explanations. Issues of this kind belong firmly to the domain of the primary decision maker and should not be belatedly ventilated at the stage of either first instance or second instance appeal. Adherence to this exhortation and adoption of this practice will enhance the quality of ECO decision making, with the logical consequences of a reduction in appeals, greater overall expedition, reduced delay and a saving in professional costs. Furthermore, in the event of an invitation to exercise discretion being refused, one would expect a brief explanation to be given. For the avoidance of doubt, we take this opportunity to emphasise that an adequate, intelligible explanation for any discrete refusal of this kind should always be provided by the ECO. In this way, the prospects of the tribunal understanding the ECO’s reasoning and, thereby, conducting an efficacious and informed review of the legality of the impugned decision will be greatly enhanced.

For those following the issue of the creeping introduction of subjective assessment into the supposedly objective Points Based System and the Appendix FM regime for family members and the “evidential flexibility” policies, there is an interesting discussion at paragraph 21 onwards. In particular:

The effect of these amendments was to create discretion, or “flexibility”, in cases where specified information, though not provided, can be verified by other means and, further, to provide some clarification of the meaning of “a document in the wrong format”. This clarification, notably, is provided in illustrative and inexhaustive, not comprehensive, terms. Judges at both tiers should be alert to this. The amended provisions were considered by Foskett J recently in Gu v Secretary of State for the Home Department [2014] EWHC 1634 (Admin) [2014] EWHC (Admin), which concerned the provision relating to a document or documents missing from a sequence or series.

The President emphasises that if there is a right of appeal the exercise of discretion can be reviewed by the tribunal on public law grounds making use of the ‘not in accordance with the law’ ground of appeal. What he does not mention is that this is on his analysis a discretion conferred by the Immigration Rules and is therefore surely reviewable on the merits, not just on public law grounds: see sections 84(1)(f) and 86(3)(b) of the Nationality, Immigration and Asylum Act 2002.

Our attention is also drawn to a specific Immigration Directorate Instruction, Family Members under Appendix FM and Appendix Armed Forces of the Immigration Rules (actually listed on gov.uk as Annex FM Section FM 1.7: Financial Requirement if you are looking for it). This includes paragraph 3.4.2:

The President helpfully recites some of the authorities on the role of the IDIs and observes that failure to apply an IDI might amount to a breach of legitimate expectation and that an appeal might also be allowed on the ground that it was not in accordance with the law.

Not so for the family in this case, whose appeals were dismissed.

The official headnote reads:

(1)   Paragraph [D] of Appendix FM-SE is an example, within the context of the requirement to supply specified evidence, of the increasing influence of discretionary powers of waiver and further enquiry in the Immigration Rules.

(2)   Where applicants wish to invoke any discretion of this kind, they should do so when making the relevant application, highlighting the specific provision of the Rules invoked and the grounds upon which the exercise of discretion is requested.

(3)   Where any request of this kind is made and refused, a brief explanation should be provided by the decision maker.

(4)   A refusal to exercise a discretionary power as described in (1) above may render an immigration decision not in accordance with the law, under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002.

(5)   Powers of waiver are dispensing provisions, designed to ensure that applications suffering from certain minor defects or omissions can be readily remedied.

(6)   The hierarchical distinction between the Immigration Rules and Immigration Directorate Instructions (“IDIs”) must be observed at all times.

(7)   A failure to recognise, or give effect to, an IDI may render an immigration decision not in accordance with the law.