Personal Immigration

Evidential flexibility in leave to remain applications

In SH (Pakistan) v Secretary of State for the Home Department[2016] EWCA Civ 426 (18 February 2016) the Court of Appeal considered whether the Home Office’s former “evidential flexibility” policy was broader and more flexible than the “evidential flexibility” rule contained at paragraph 245AA of the Immigration Rules, which provides an opportunity for PBS applicants to produce additional evidence in support of their immigration applications in limited circumstances.

In this case the Secretary of State refused an application for leave to remain as a Tier 1 (Entrepreneur) migrant as she was not satisfied that evidence of the English language proficiency requirement was met by the Appellant. Because of time constraints, the Appellant provided a document from the college where he had studied, rather than the awarding institution, to demonstrate his English language abilities. The Home Office refused the Appellant’s application on the basis that specified evidence had not been provided, without first requesting a document from the awarding institution.

The Court of Appeal considered the following issues:

  1. Whether the evidential flexibility rule at paragraph 245AA required the Home Office to have asked the Appellant for the missing document.
  2. Whether the evidential flexibility policy in force at the relevant time had a wider application than the rule and therefore applied in the instant case or whether it was circumscribed by the rule in 245AA.

It was held that because the document was not in the wrong format, but was rather a wrong document altogether (as it was from the wrong institution), the ‘evidential flexibility’ rule in paragraph 245AA did not apply (paragraphs 21-23). 

The Court of Appeal found that the ‘evidential flexibility’ policy, which was in existence at the appropriate time, was nevertheless applicable in circumstances where a wrong document had been submitted because the policy supplemented the rule and was not circumscribed by it (paragraph 26) and applied “when an application has missing evidence or there is a minor error on an application”.

The Secretary of State should therefore have come back to the Appellant for additional evidence because it was reasonable to infer that the correct document existed, could be provided and would be conclusive (paragraph 24).  Furthermore, it was concluded that the benefit of the doubt in cases of uncertainty should be exercised in favour of the applicant (paragraph 24).

Source: SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426

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