Evidential flexibility under Appendix FM of the Immigration Rules

Appendix FM-SE sets out very specific requirements for supporting documentary evidence which must be provided with the application. The Rules state that only evidence that has been submitted with the application will be taken into consideration when reaching a decision. However, there is an exception to this requirement. Paragraph D of Appendix FM-SE of the Immigration Rules provides Home Office caseworkers and Entry Clearance Officers with some flexibility to request missing evidence or the correct version of evidence before a decision is made on the application for entry clearance or leave to remain.

Where evidence has not been provided with the application, or the evidence is not in the correct format, or the evidence does not contain the required information, paragraph D of Appendix FM-SE sets out three circumstances in which the Home Office caseworker or Entry Clearance Officer should consider exercising their discretion to request further evidence.

Evidential flexibility under paragraph D(b)

1. If the applicant has submitted a sequence of documents and some documents in the sequence have not been provided (for example, one bank statement from a series is missing); or
2. If the applicant has submitted a document in the wrong format (for example, a letter is not on headed notepaper as required by Appendix FM-SE); or
3. If the applicant has submitted a document that is a copy and not an original; or
4. If the applicant has submitted a document which does not contain all of the specified information; or
5. If the applicant has not submitted a specified document as required by Appendix FM-SE;

Then the Home Office caseworker or Entry Clearance Officer may contact the applicant or their representative and request the document(s) or the correct version(s) of the documents. The applicant must be given a 'reasonable' amount of time in which to provide the requested evidence.

However, the Home Office caseworker or Entry Clearance Officer will not request documents where addressing the error would not result in the application being successful because the application falls to be refused for other reasons; paragraph D(c), Appendix FM-SE.

Evidential flexibility under paragraph D(e)

Alternatively, where the caseworker or ECO is satisfied that there is a valid reason why a specified document cannot be supplied, for example it has been permanently lost or is not issued in a particular country, then the decision maker may exercise their discretion and will consider the application on the basis of the evidence already provided.

Evidential flexibility under paragraph D(d)

If the applicant has submitted:

1. A document in the wrong format; or
2. A document that is a copy and not an original; or
3. A document that does not contain all of the specified information as required by the Rules, but the missing information is verifiable from (i) other documents submitted with the application; (ii) the website of the organisation that issued the document; or (iii) the website of the appropriate regulatory body.

Then the application may be granted exceptionally, provided that the decision maker is satisfied that the document is genuine and that the applicant meets the requirement to which the document relates.

Appendix FM-SE sets out very detailed requirements as to the evidence that must be submitted with an application for leave to remain or entry clearance as a family member. Whilst the Rules provide some flexibility towards evidence which has not been provided, is in the wrong format or does not include the correct details, the decision maker retains a discretion to request the correct evidence. In order to minimise the risk of the application being refused, all specified evidence should be submitted with the application.

For expert advice regarding the requirements of the evidential flexibility rule, or the detailed requirements of Appendix FM of the Immigration Rules then please contact our experienced immigration barristers in Covent Garden, London, on 0203 617 9173 or email info@richmondchambers.com.