Perhaps not breaking news for some of you but I suspect not everyone has come across the references to the UKBA’s policy of “evidential flexibility” in the context of Points Based System applications.

Over the last few months, various documents have been doing the rounds which clearly set out that the UKBA has, since August 2009, introduced a policy of “evidential flexibility”.  This policy apparently allows caseworkers to contact applicants for missing documentation or to correct minor errors once applications have been lodged.  My colleagues and I at Renaissance Chambers first came across this policy when a document from the National Audit Office was circulated – ‘Immigration: the Points Based System – Work Routes’ dated 15 March 2011.  So I thought that it was high time to include a post on this.  I have also recently done some training on this and other Points Based System updates so if my notes might be of interest, you can access them here.

Back to the National Audit Office though – at Paragraph 2.13, it sets out that:

 In 2009-10, the Agency rejected some 8 per cent (8,500) of in-country applications 2.13 and refused some 12 per cent (23,800) of all applications. From our review of cases, the commonest reason for refusal, affecting 22 of the 43 refusals in our sample, was the applicant’s failure to provide sufficient information or supporting evidence. The volume of errors and omissions by applicants led the Agency, in August 2009, to introduce a policy of ‘evidential flexibility’ which allows caseworkers to go back to applicants for missing documentation or to correct minor errors. The Agency has not, however, evaluated whether the policy is effective or being applied fairly. In response to the Chief Inspector’s findings of a lack of consistency in the implementation of evidential flexibility overseas, the Agency formalised its guidance to overseas posts in February 2011. We also found inconsistency of approach in Sheffield however. In addition, the Agency allows only three working days for applicants to submit extra documents. Caseworkers told us that documentation is frequently received after the application has been refused but the Agency was unable to quantify this.

So yes, this has apparently been going on since August 2009!  However it also says, not that surprisingly, that the policy has not been consistently applied and may even have been, and I paraphrase, a tad bit useless if only 3 days were afforded to applicants to respond to any caseworker requests.

But, more importantly, this does mean that if an applicant is refused because, for example, they had not submitted the required period of bank statements or one of the payslips fell out from the jiffy bag AND the caseworker did not contact the applicant to try and rectify this mistake, then it is worth pleading as part of the appeal that this policy of “evidential flexibility” was not properly followed.  This would arguably render the decision both unfair and not in accordance with the law.  The effect of which would be to allow the appeal to the extent that the matter is sent back to the UKBA so that an opportunity can be given to the applicant to send the required documents in.

The other document also worth using in order to reinforce the point is the government’s response to the National Audit Office’s review.  You can access this document here but otherwise the relevant paragraphs are:

6.1        The Government agrees with the Committee’s recommendation.

6.2          The Agency has already made changes to its evidential flexibility policy. Revised instructions have been circulated to ensure a consistent approach in decision making is adopted across all the case working units both in the UK and overseas. The revised arrangements mean that where minor omissions have been made and applicants have been  asked to provide the information needed to determine their application, they will be given seven days to provide the information requested where this is necessary. This same evidential flexibility approach has also been introduced to sponsor licence applications.

6.3          In addition to the evidential flexibility arrangements, the Agency has introduced further measures to allow applicants applying in the UK to correct minor errors or omissions earlier in the application process. This approach was trialled on the Tier 1 (General) route in order to avoid rejection of applications prior to the closure of the route. The Agency plans to extend this approach across all temporary migration routes in 2011.

Bizarrely again, it is stated that the instructions (to caseworkers presumably) have been revised to reflect the changes in the “evidential flexibility” policy.  Yet again another example of instructions being drawn up but not published!  You will have also seen the increase to 7 from 3 days…

The cases of Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 00151 (IAC) and Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) have already established that the general principle of fairness can be utilised and considered as part of immigration appeals.  Indeed fairness was also relevant to Article 8 ECHR and the retrospective applicability of the new s.85A of the Nationality, Immigration and Asylum Act 2002, as recently upheld by the Upper Tribunal in Alam.  With these two other documents, there is now another tool to challenge Points-Based System refusals (pre and post-new s.85A) if the policy was not followed.  Make sure that you spread the word about the now not-so secret policy.