Evidential flexibility in the Court of Appeal

The Court of Appeal considered the Home Office’s “evidential flexibility” policy earlier this week in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65, After comprehensively reviewing the history of the policy the court concludes that, when it comes to applications under the Points Based System, the policy applies only in the circumstances prescribed by the rues, namely:

  1. where a documents missing from a sequence;
  2. where a document in the wrong format;
  3. where a document is a copy rather than an original; and
  4. where a document does not contain all of the specified information.

The wider policy of requesting an entirely absent document is no longer in place following changes to the Home Office’s guidance which brings the guidance into line with the provisions of the rules. Our Darren Stevenson explores the judgement in further detail in an excellent post over on the Free Movement blog.

The decision in Mudiyanselage relates only to applications under the Points Based System. There are also evidential flexibility provisions contained within Appendix FM-SE of the rules, which applies to applications from the family members of British citizens. These provisions are of wider application, allowing a decision maker to request a document which is entirely absent. The same is true for the provisions of Appendix KoLL which specifies the documents required to demonstrate compliance with the knowledge of language and life requirement for indefinite leave to remain applications.

As such, there is scope in these types of applications to argue that a decision maker should have requested further documentation before refusing an application. However, the decision maker is not obliged to request further documents; it is an entirely discretionary power. This makes a decision not to apply the evidential flexibility provisions difficult to challenge. Where a decision maker has a wide discretionary power, the courts are often reluctant to interfere. It is, of course, always best to include all the required evidence with the initial application. However given the current complexity of the rules, it is all too easy to miss something.