And to add to this :
In R (on the application of Q and others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the Court of Appeal dealt with the principle of fairness as follows:
“69. ...It is further common ground that in deciding whether the applicant has so satisfied him the Secretary of State must act fairly, which means both that he must set up a fair system to enable the decision to be made and that he must operate the system fairly: see e.g. Gaima v Secretary of State for the Home Department [1989] Imm AR 205, applying Re HA (Infant) [1967] 1QB 617 at 630. What fairness requires of course depends upon the circumstances of the case.”
Therefore, in the event of any subjective perceived ambiguity, the Secretary of State for the Home Department should request for any further documentation that the Secretary of State for the Home Department additionally deems relevant.
In contextualising the Evidential Flexibility test with regards to me; the underlying principles were stated in a well-known passage in the speech of Lord Mustill in R v Home Secretary ex Doody [1994] 1AC 531 at 560:
“What does fairness require in the present case? My Lords, I think it unnecessary to refer byname or to quote from, any of the other cited authorities in which the court have explained what is essentially an intuitive judgement. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected cannot usually make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
The Supreme Court Judgment in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59 addressed the issue concerning the interpretation and application of the Home Office’s Evidential Flexibility policy. In Mandalia, the Supreme Court reviewed the Evidential Flexibility policy and ruled, inter alia, that the Secretary of State for the Home Department is obliged to request missing evidence. The importance of Mandalia is that the Secretary of State for the Home Department is not invited but obliged to request for documentation.
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