In the recent case (7 March 2019) of R (Islam) v Secretary of State for the Home Department [2019] EWCA Civ 500, the Court of Appeal considered Mr Islam’s appeal against the Home Office’s refusal of his application under the Points Based System. The main issue centred on what documentary evidence the Home Office should have considered. The Court of Appeal in exploring this also commented that:

“it is not open to the Respondent [Home Office] in effect to require an additional specified document which is not listed or to require the document itself to show or state something which is not prescribed in the paragraph as needing to be shown or stated by the document.”

The Court’s observation will ring true with many immigration practitioners. The most common facet of refusals is the Home Office’s contention that the applicant has either failed to provide enough evidence or that there was a failure to make a full disclosure of material facts. It means that the applicant did not give enough or that s/he failed by omission. A refusal is made even more frustrating where the “missing” information or documents is not even noted as a requirement in the Home Office’s own policy or guidance. The reality of such unfair treatment of evidence is apparent in ongoing cases we have. One such case is (names changed); Bonnie entered the UK under the Points Based system, she was married in Thailand to Clyde. When asked about her marital status, she declared that she is married and indeed at the time even though there were problems in the marriage she was still living with her husband, Sam. Before applying for entry into the UK she was in correspondence with Clyde. After her Points Based System application was granted, she entered the UK. Shortly after she and Clyde began living together. Clyde suffers from very serious medical conditions making it impossible for him to even travel to Thailand let alone to live there. Bonnie applied to vary and extend her leave to remain based on her relationship with Clyde. Ample evidence was provided in support of the genuineness of their relationship. Medical evidence of Clyde’s serious ill health was also submitted. Despite this Bonnie’s application was refused. The reason for the refusal? Bonnie did not declare the breakdown of her relationship with Sam (the husband in Thailand) in her Points Based system application. The Home Office stated that in failing to make that declaration Bonnie either: (a) entered the UK illegally (failure to disclose material facts) or (b) that her relationship with Clyde is not genuine. The saying “damned if you do, damned if you don’t” comes to mind.

Bonnie’s case would certainly benefit from the logic applied by the Court of Appeal in R (Islam). The first issue being that Bonnie’s application does not require that she declare the problems within her marriage. In fact, there is no section to even do so. The application form asked if she is married and she declared, correctly, that she is. Secondly, and of equal importance, is that in her second application, the Home Office appear compelled to ignore the considerable documents provided in support of their relationship because of the alleged “false declaration” Bonnie made in her first Points Based System application. That second application required that Bonnie provide evidence of her relationship with Clyde and this she did, amply, yet that evidence was ignored by the Home Office.

We are challenging the Decision and so it remains to be seen whether the Tribunal will agree with us; that the Home Office’s practice criticised in R (Islam) of requiring evidence not in fact prescribed whilst on the other hand ignoring relevant evidence, present a disservice to legislation they are bound to uphold. R (Islam) should serve as a reminder that the Immigration rules, policy and guidance are there to give effect to what the law demands and not what the Home Office wants to achieve.