Latest statement of changes to the immigration rules October 2018 – evidential flexibility

The Home Office’s latest statement of changes to the immigration rules contains various new provisions for the felicitously-named Appendix EU, which will govern the situation of EEA migrants after Brexit.

It also contains new rules which liberalise the requirements for documents supporting visa applications. The Home Office is introducing new visa application systems and the new rules say that, in many cases, applicants will be able to provide copy documents, not originals. This constitutes a major change in longstanding Home Office practice, and is likely to make life easier for a lot of migrants.

Another change in the rules also sounds good, but it needs a bit more analysis: the rules about “evidential flexibility” have also been liberalised. Evidential flexibility is a rule or principle whereby a UKVI caseworker can ask a visa applicant for missing documents or missing information if something is missing from or wrong with the application.

Various policies and rules about this have been introduced by the Home Office over the period of some years, presumably on the realisation that the evidential requirements for some visa routes had become so complicated that many migrants were getting refused on the basis of horribly complicated technicalities. It was in order to engender a bit more fairness into decision-making.

The explanatory text in the statement of changes certainly sounds good:

“The changes provide for a more generous approach to evidential flexibility. The policy previously allowed for a caseworker to write once, in very precise circumstances, to request further information where an applicant had failed to provide the evidence required. These changes provide more flexibility to caseworkers regarding whether and when they may write to applicants to ask for any missing documents required, to be provided within a reasonable timeframe”.

And some new text thus duly appears in the amended rules:

“Where an application for leave to remain does not meet the requirements … the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification.”

This is simpler and more straightforward than the previous text but, like so many things in life and immigration, the picture is more complicated than it looks.

There are in fact three different versions of the evidential flexibility rules within the immigration rules, and all different from each other, to varying extents. As well as the text shown above (which relates only to leave to remain applications, not to entry clearance applications from outside the UK) there are also versions for points-based system visa applications and family visa applications – for leave to remain or entry clearance applications. So, depending on what kind of visa you are applying for, you will encounter one version or another version, and some versions are more generous than others.

The courts and tribunals have on occasion visited this area, and particularly in relation to the question of whether or not in a particular case the UKVI should have exercised their discretion to contact the migrant to try and obtain the document or information that was missing – something that turns out to be a highly vexed issue.

If you find this subject confusing you may take comfort from the fact that you are not alone: in the course of this litigation Lord Justice Underhill opined – with powerful metaphor – that “the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it”.

The big problem here is that the wording “the Secretary of State [ie the Home Office] may notify the applicant….”, has an entirely discretionary flavour, and this calculated vagueness takes us into complex legal territory. However, the courts have generally taken the view that – despite all the difficulties – the Home Office is entitled to have such dense rules if it really wants to.

Where does all this leave us?

It is a very good question. The new amended rules, although they have a nice flavour, do not remove the mysterious ambiguity surrounding the subject. But we do note that the current and fairly new Home Secretary, Sajid Javid, says that he wants to introduce more humanity and fairness into the immigration system; perhaps his influence will make itself felt.

We also note that the finely-tuned legal mind of Mr Justice McCloskey, ex-President of the Upper Immigration Tribunal, did at least attempt in one of his decisions to nail down some relatively solid principles in this field, and it may be possible to rely on this.

At any rate, if you find yourself on the wrong end of evidential flexibility principles you are well advised to instruct a good lawyer.

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