The Court of Appeal has reluctantly but unanimously agreed with the Home Office’s decision to refuse a Tier 1 (Entrepreneur) application for further leave to remain based on a factual issue of specified documents not being submitted. It rejected arguments that evidential flexibility should apply. The case is Harpreet Singh v Secretary of State for the Home Department [2018] EWCA Civ 2861.

The decision incorporates a lot of the rhetoric from the current leading case on evidential flexibility, Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65. In Mudiyanselage, the courts proved unwilling to interpret paragraph 245AA in favour of applicants, primarily due to the risk of adding fairness to the rigorous Immigration Rules.

This decision places ever more pressure on practitioners to ensure that application packs are dispatched with specified documents meeting the requirements of the Immigration Rules. It dissuades practitioners from relying upon evidential flexibility as a back stop when submitting specified documents in support of Points Based System applications.

The courts are likely to side with the Home Office on a question of fact

The Immigration Rules require a Tier 1 (Entrepreneur) applicant to demonstrate that they have created the equivalent of two new full-time jobs for settled workers and that each job has existed for 12 months. Mr Singh indicated on his application form that he had included payslips to evidence this. He averred during judicial review and appeal that the payslips had been submitted to the Home Office.

The Home Office said that payslips hadn’t been received as recorded in a General Case Information Database (GCID) record sheet. R (Mahmood) v Secretary of State for the Home Department [2016] UKUT 57 (IAC) confirms that a GCID is an approved source of evidence and can be relied upon to defend a decision to refuse.

Lord Justice Underhill accepted the Home Office argument on this point. He added that, even without the assistance of the above authority, based on the fact there had been other errors committed by the applicant it was more likely that the applicant had omitted the payslips than the Home Office had erred in record-keeping.

Evidential flexibility will not save an application from refusal

Mr Singh argued that schedules prepared by his accountants should be regarded as payslips, albeit in the wrong format, because they contained the same information as the payslips. Two heads of paragraph 25AA were relied upon, summarised by Underhill LJ :

(b) (ii), which applies where “a document is in the wrong format (for example, if a letter is not on letterhead paper as specified)”, and (d) (i), which was in substantially identical terms but without the parenthesis: in the former case Secretary of State may ask for the missing documents, and in the latter he may overlook the omission…

Neither assisted:

This is a “wrong document”, not a “wrong format”, case. There is no essential difference from the case of Igwe, considered at para. 118 of the judgment in Mudiyanselage. In that case the appellant had failed to supply a Current Appointment Report from Companies House but said that the same information was available from other documents submitted and that the case could be regarded as falling within paragraph 245AA (b) (ii).

Underhill LJ, dismissing the appeal, expressed sympathy for the applicant, who complained that he had been badly let down by his first set of solicitors (the firm has since been closed down by the regulator). But he applied the reasoning of Sales LJ, quoted in Mudiyanselage at paragraph 51: “the onus is clearly on the applicant to ensure that her documentation is in order and to check that she is submitting the correct materials as required by the relevant rule”.

What could the applicant have done differently?

The applicant should have ensured payslips were submitted with his application so that this situation could have been avoided. Failing that, in the first instance the applicant could have applied for administrative review rather than judicial review, which would have prompted early investigation and perhaps the payslips may have been found. Given that he followed the judicial review process, Mr Singh should have submitted the missing payslips and included witness evidence to explain what had happened and why. (Unfortunately, in this set of circumstances the outcome is unlikely to be any different.)

According to Underhill LJ, if Mr Singh wanted to challenge the accuracy of the GCID at judicial review, he should have applied to cross-examine the responsible caseworker at the Home Office who created it. It was equally important to submit witness evidence explaining the steps taken to compile and dispatch the application pack.

The trending case law can be contrasted with the more generous approach to evidential flexibility in the October statement of changes. The former requires practitioners to submit the correct documents to the Home Office and suggests that evidential flexibility cannot be relied upon to relieve concerns about specified documents that don’t (quite) meet the requirements of the Rules. The latter approach appears to alleviate the rigour of the Rules, although its application remains at the discretion of the decision-maker. How this will be applied remains to be seen.