Flexibility and UKBA Policy

theresa+mayIt's not been a good week for the poor Secretary of State for the Home Department. Earlier in the week, we saw judicial critism of the new Immigration Rules with regards to the approach adopted by UKBA on Article 8 cases in Upper Tribunal case of IZUAZU (Art 8 , New Rules ) [2013] UKUT 00045 . President Blake, Lord Bannatyne and Judge Storey held that there was no presumption that the new Rules were conclusive of proper consideration of Article 8 claims, holding that the more restrictive the approach then the less likely there is to have been a proper regard to the proportionality assessment that is required.

And then her PBS system came under attack again in the Upper Tribunal with the judgement of Rodriguez ( Flexibility Policy ) [2013] UKUT 00042. The court found that UKBA had a public law duty to give effect to its own policy statement on PBS applications which required applicants to be contacted where mandatory evidence was missing from their applications prior to any refusal.

The Court then proceeded to flash a warning in respect of ALL applications submitted to UKBA, saying that decision makers at UKBA must be fully aware of the evidential flexibility policy, to conduct their assessments having due regard to the principles enshrined within that document, and to act fairly and rationally and in accordance with section 6 of the Human Rights Act 1998.

Fantastic stuff.