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Evidential flexibility policy is additional to the provisions of the Immigration Rules


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In yet another case highlighting the absurdly hostile, bureaucratic and inflexible nature of the UK’s Points Based System the Court of Appeal has held that a Tier 1 Entrepreneur might benefit from a policy on evidential flexibility that was “much broader”¬†than the rules themselves. The case is SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426.

The refusal arose because the claimant had to make his immigration application before his graduation certificate was issued; his leave was going to run out so an application had to be made. He needed the degree certificate to show that he met the English language requirement of the rules. There was an alternative, though, which was to provide an academic transcript from the awarding institution on official headed paper showing certain details. The claimant attempted to do this, but sent in a letter from the college he had studied at rather than the awarding institution.

As it turned out, the Home Office then sat on the application for nearly six months, by which time the graduation certificate was available. Without asking for a copy of the certificate, though, the Home Office refused him anyway.

An immigration judge took a hard line and refused the appeal and this was upheld in the Upper Tribunal.

On appeal to the Court of Appeal slightly different arguments were put. Mr Zane Malik for the appellant first argued that the rules themselves, at paragraph 245AA on evidential flexibility, required the Home Office to have asked the appellant for the missing document. This argument was rejected.

Mr Malik next argued that in any event, the evidential flexibility policy was differently drafted to the rules and properly understood, the policy required the Home Office to have asked for a copy of the missing document. Giving the leading judgment, Elias LJ held that the exceptions in the evidential flexibility policy were “much broader” than the rules and that the policy states that it applies “when an application has missing evidence or there is a minor error on an application”. This was sufficient to encompass the appellant’s situation and therefore the Home Office had acted unlawfully in not applying the policy.

An interesting third argument concerning common law fairness was also advanced, but the Court declined to give judgment on it. Elias LJ declined to comment at all but Beatson LJ could not resist and says, entirely obiter:

Mr Poole [for the Home Office] submitted that in cases where the problem that arose was not due to the fault of the Secretary of State and there was compliance with the relevant rules and policies, there was no room for invoking the common law principle of fairness because of the inroads it would make into the efficient operation of the points-based system. Given that a Secretary of State may act unfairly (see the authorities I have cited) notwithstanding her compliance with the Rule and the terms of the majority judgments in EK (Ivory Coast), that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State’s conduct.

A good result for Zane Malik.

As a footnote, there are those who have suggested that the evidential flexibility policy addressed by the Court of Appeal in this case does not exist or that it is entirely coterminous with the rules. They are wrong.

Source: SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426 (18 February 2016)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


2 Responses

  1. Frankly, I think Zane Malik got lucky here. The current evidential flexibility policy is nothing like the process instruction considered in Mandalia. Although this decision blows a potentially massive hole in the PBS and the concept of specified evidence, which can’t be a bad thing, I cannot see it’s reasoning surviving for long.

    I can see nothing in the policy itself which provides for more flexibility than the rules. The Court of Appeal refers to ‘the exceptions [being] much broader than in Reg 245AA(b)’, but I cannot see any exceptions. Perhaps there were some once upon a time, but I cannot see that they are there now. Particularly, there is nothing in the guidance which says a flexible approach should be taken where, as in SH, a specified document was entirely mssing from the application. In this respect it is very different to the similar rule under Appendix FM and, presumably, deliberately so.

    So the decision hangs on the lack of specific reference to the rule in the guidance, and the opening comments of the guidance as recorded at para 18 of SH. I think the CA may have mis-read and misapplied that opening para. It describes the evidential flexibility ‘process’, but cannot realistically be read as defining the policy. The policy document very much reads to me as if its aim is simply to explain the rule. It’s certainly been a stark feature of the Modernised Guidance that it provides far less discretion to HO caseworkers than did the old style guidance in the IDIs etc.

    I suspect the CA may have been swayed by the fact that in this case the Appellant did in fact have the correct document in his possession pre-decision. I cannot understand why the Appellant was not advised by his lawyers to send in the appropriate transcript from the award giving university, or send in the degree certificate when it became available available, or simply make another application when the degree was awarded.

    I fear that an uncritical approach to this judgement will lead to advisers embarking on unnecessary and unmeritorious litigation where there may be more sensible remedies available, or where they are trying to cover their backs after making poorly prepared applications.

    I think we may see the HO amend the presentation of the guidance to close off the court’s reasoning in this case. I think we may also see other courts and Tribunals narrow the ratio of this case to those on the same facts or, indeed, simply find that it was decided per incuriam.

    1. Interesting gloomy view, but thank you! The Court of Appeal judgment is pretty clear so it is hard to see how it can be disregarded. I’ve no doubt some will try, though, as you say.