Upper Tribunal decision on evidential flexibility and accepting new evidence in administrative reviews

In a new reported decision the Upper Tribunal has set out when new evidence can be considered in an administrative review. The tribunal also said that the evidential flexibility guidance is now so different to that considered by the Court of Appeal in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65 that much of the reasoning which informed the conclusion must no longer apply. Our write up of Mudiyanselage is here, in brief Underhill LJ concluded in that case that the sole authority for the exercise of discretion in evidential flexibility was the immigration rules.

This case is Ganeshamoorthy, R (On the Application Of) v Secretary of State for the Home Department (Evidential Flexibility; Administrative Review Gateways) [2025] UKUT 229 (IAC).

Background

The applicant is a Sri Lankan national who applied for entry clearance as a skilled worker in March 2024. The application was refused on 29 April 2024 for failure to meet the English language requirement as the certificate provided was not an approved language test under Appendix English language. The refusal letter said that the decision maker had decided not to use the evidential flexibility policy to ask for further evidence because the guidance states “that evidential flexibility does not need to be exercised if the submitted evidence does not meet the requirements”.

The applicant sought administrative review of the refusal and enclosed a new English language test certificate with the application along with a statement by the applicant explaining that there had been issues with his test centre which had caused the problem with his first certificate. It was argued that the decision maker had erred in failing to apply to the evidential flexibility policy.

The administrative review was refused on 13 June 2024, the decision stating that “we are satisfied that the ECO was reasonable not to apply evidential flexibility to contact you to request that you provide additional evidence as it was not apparent that you had made a mistake or had omitted any evidence from your application”. The decision also stated that they would not consider new evidence provided unless it met the requirements in Appendix AR of the immigration rules and so the English language certificate would not be considered.

The applicant sought judicial review of both refusals.

The judicial review

There were three grounds of challenge. The first was that the decision maker had misconstrued paragraph AR3.3 of the immigration rules when refusing to consider the new certificate submitted with the administrative review. It was argued that the original decision fell under AR3.3(d) “a decision not to request specified documents under paragraph 245AA” and (e) “a failure to follow the evidential flexibility policy” both of which allow for new evidence to be considered at administrative review.

The Upper Tribunal noted that both of these provisions were poorly drafted in the immigration rules. The tribunal concluded that the decision maker had not made a decision and so AR3.3(d) could not apply, however there had been a failure to follow the evidential flexibility policy as set out in AR3.4(e) and so the refusal to consider the new evidence was unlawful on that basis.

The tribunal summarised the position on consideration of new evidence at administrative review stage in the headnote as follows:

Admission of Additional Evidence on Administrative Review

6.     Administrative review generally takes place on the basis of the evidence which was before the original decision maker.  That basic rule is subject to five exceptions. 

7.     The first three, in paragraphs AR3.3(a)-(c), relate to situations in which the applicant is suspected of some sort of wrongdoing which has resulted in refusal under Part 9 of the Immigration Rules.  Where the eligible decision was based wholly or partly on such a ground of refusal, additional evidence is admissible at Administrative Review, whether or not the eligible decision was incorrect.

8.     Paragraph AR 3.3(d) permits the submission of additional evidence on Administrative Review where the original decision was one which included a decision not to request specified documents under paragraph 245AA of the Immigration Rules.  An applicant is not additionally required to demonstrate that the decision not to request documents was erroneous or incorrect. 

9.     Paragraph AR3.3(e) permits the submission of additional evidence on Administrative Review where there was a substantive error in the respondent’s decision not to follow the Evidential Flexibility policy. 

The second ground was that the entry clearance officer had failed to follow the evidential flexibility policy by not asking the applicant to provide a correct English language certificate when considering the original decision. The Upper Tribunal set out the history of the evidential flexibility policy, from its introduction via a “process instruction” in 2009 to the inclusion in the immigration rules at paragraph 245AA in 2012 and publication of formal guidance in 2013, both of the latter relating to evidential flexibility in points based system applications.

The tribunal also referred to the case of Mudiyanselage & Ors v Secretary of State for the Home Department [2018] EWCA Civ 65 in which Underhill LJ held that the policy on evidential flexibility was “indistinguishable” from paragraph 245AA. The Upper Tribunal agreed with the applicant’s submission that this was no longer the case. In particular, the version of the policy considered by the Court of Appeal was version 8, titled “Evidential Flexibility: points-based system” whereas version 11 under consideration here is “Evidential flexibility” and it states at the outset that it applies to “all routes except Appendix FM and protection routes”.

Several other differences between the two versions of the guidance were highlighted and the tribunal summarised its conclusions as follows (set out in the decision and the headnote):

The Evidential Flexibility Policy, version 11 (January 2021)

1.     Version 11 of the Secretary of State’s Evidential Flexibility policy (“EFP”) applies to all routes under the Immigration Rules except Appendix FM and protection routes.  It is no longer applicable only to cases under the Points-Based System.

2.     Paragraph 245AA of the Immigration Rules continues to apply only to Points Based System applications.

3.     Version 11 of the EFP and paragraph 245AA are no longer coterminous.  The EFP applies to more types of applications.  It contains no express reference to paragraph 245AA.  The circumstances in which additional documents or information might be requested from an applicant are framed more widely in version 11 of the EFP than in paragraph 245AA of the Rules or in the previous versions of the policy considered in Mudiyanselage & Ors v SSHD [2018] EWCA Civ 65; [2018] Imm AR 846.

4.     Unlike paragraph 245AA and version 8 of the EFP, the current version applies to documents which were omitted from an application. 

5.     Unlike version 8 of the EFP, the current version of the guidance does not require a caseworker to have reason to believe that missing information exists; a caseworker must also consider whether they believe that an applicant “could obtain” the missing document or information.

The tribunal highlighted the words “could obtain” and said that the “choice of verb must have been intentional, and is clearly of significance”. In this case, the tribunal considered that the fact the applicant had provided evidence of meeting the English language requirement meant that the decision maker should have contacted him to suggest that he provided a UKVI compliant certificate. This ground of challenge also succeeded.

A third ground also succeeded, which was a challenge to the failure to consider the applicant’s request that the application also be considered for a grant of leave outside the rules.

Conclusion

Both of the issues in this case are examples of good practice by the Home Office – considering new evidence at administrative review and getting in touch with applicants at application stage to give them the opportunity to correct errors. It says a lot that they considered it appropriate to fight this case.