Flexibility and Rules

Further changes to the Immigration Rules have been incorporated by HC760 with effect from 13 December. Changes are now almost a monthly event and follow the general theme, particularly accelerated after the Supreme Court's decision in Alvi, that absolutely everything a caseworker does must be incorporated into the rules. The policy behind this is unclear, it certainly doesn't help UKBA at the appeal stage and doesn't contribute to making things any clearer or more robust. In short the rules are becoming an unmitigated disaster of drafting. (witness the switch to some kind of algebraic notation of paragraphs in appendix fm) The new changes also introduce an unusual concept, by incorporating what was once a policy (secret for some time) of 'evidential flexibility'. This was previously relevant for PBS applications (once the UKBA let us in on the secret) and now with the excessive pedantry of Appendix FM-SE has been incorporated into this section of the rules.

Its perhaps worth quoting the changes:

"a) In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State ("the decision-maker") will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b) or (e) applies.

(b) If the applicant:

(i) Has submitted:

(aa) A sequence of documents and some of the documents in the sequence have been omitted (e.g. if one bank statement from a series is missing);

(bb) A document in the wrong format; or

(cc) A document that is a copy and not an original document; or

(ii) Has not submitted a specified document,

the decision-maker may contact the applicant or his representative in writing or otherwise, and request the document(s) or the correct version(s). The material requested must be received by the UK Border Agency or Border Force at the address specified in the request within a reasonable timescale specified in the request.

(c) The decision-maker will not request documents where he or she does not anticipate that addressing the error or omission referred to in sub-paragraph (b) will lead to a grant because the application will be refused for other reasons.

(d) If the applicant has submitted:

(i) A document in the wrong format; or

(ii) A document that is a copy and not an original document,

the application may be granted exceptionally, providing the decision-maker is satisfied that the document(s) is genuine and that the applicant meets the requirement to which the document relates. The decision-maker reserves the right to request the specified original document(s) in the correct format in all cases where sub-paragraph (b) applies, and to refuse applications if this material is not provided as set out in sub-paragraph (b).

(e) Where the decision-maker is satisfied that there is a valid reason why a specified document(s) cannot be supplied, e.g. because it is not issued in a particular country or has been permanently lost, he or she may exercise discretion not to apply the requirement for the document(s) or to request alternative or additional information or document(s) be submitted by the applicant."

There is clearly vast scope for interpretation of what a sequence of documents is, or what a reasonable timescale would be.  The whole section in fact is ripe for challenge, if an adverse decision is reached, on exactly what it means.  In particular, rather stupidly, a court would not be restricted from looking at evidence submitted after an application is made but before a decision is reached, regardless of what the caseworker thinks. There is no present application of s85a to non-Points based appeals.

The difficulty with all this is using the immigration rules to deal with flexibility. The Upper Tribunal is almost constantly engaged with providing interpretation and clarification of what the rules mean. The jurisprudence that has developed is generally of the view  that rules are rules. Only in an extremely small minority of cases has it been possible to modify the meaning of the rules or sidestep them in the interests of fairness (see for example the case of Philipson before the President of the Upper Tribunal).

To succeed at the tribunal, for either party, it is necessary to show the decision was or was not in accordance with the Immigration Rules. This is a statutory ground of appeal under the Nationality, Immigration and Asylum Act 2002. Therefore its extremely important to know what rules mean. They should be unambiguous, clear and well drafted. They can allow discretion, but in doing so that discretion itself is open to appeal (another statutory ground).

There is nothing wrong with a flexible approach to evidence. Indeed the evidential requirements for most applications are so ridiculously narrow and pedantic that it is the only sensible approach. What is far from sensible is trying to incorporate a flexibility policy in extremely vague wide ranging terms into a body of rules which are by their nature applied with rigidity.

Honestly the time and money spent with these bizarre constant changes would be better spent on well trained caseworkers making sensible evidence led decisions. Instead we have a mess, ripe for litigation, that is becoming less and less understandable for Immigration Judges, practitioners and appellants. Ultimately this is all cost for the public purse, since even if appellants fund their own appeals, the Tribunal has costs as do the UKBA to appear there and defend these tortuous exercises in futility.