Evidential flexibility: What is it and does it mean anything?
The Immigration Rules, particularly the Points Based System, increasingly require migrants and potential migrants to provide Specified Evidence with their applications. Errors and omissions in the evidence provided with the application (whether inadvertent or otherwise) can lead to refusal irrespective of what many may consider to be the overall merits of the application. These errors cannot be remedied by applicants submitting additional evidence of their own volition, or on appeal. Harsh outcomes – whether loss of income, increased fees and legal costs, loss of immigration status, ultimately departure from the UK – inevitably follow.
Evidential flexibility refers to a range of tools available to Home Office case workers to mitigate the harshness of the Rules by providing applicants with an opportunity to address some errors in limited circumstances. Currently published Modernised Guidance and several paragraphs within the Immigration Rules provide Home Office decision makers with the discretion (and in some circumstances an obligation) to seek further evidence from an applicant if certain conditions are met. Previously, similar provisions were included in an internally published policy document (“the EFP”).
The question therefore arises: what remedy does an individual have if their case appears to fall within one of the evidential flexibility provisions but the relevant steps have not been taken by the Home Office prior to refusal? This article concerns one particular (although far from unique) instance in relation to the EFP currently being considered by the Supreme Court in the case of Mandalia: a missing bank statement.
Mandalia applied for leave to remain as a student. He was required to provide bank statements covering a 28 day period. He did not. His bank statement covered only 22 days. This did not meet the requirements of the Immigration Rules at the time (and this was the only reason for refusal – there being no suggestion that any of the other requirements were not met). So: could the EFP come to his aid? On its face the answer appears to be yes. Evidence was missing and the application did not stand to be refused for any other reason. The EFP confirms it is suitable to go out for missing bank statements from a series (amongst other items on a non-exhaustive list). Following the step-by-step process, if the decision maker has sufficient reason to believe that the information exists (step 3), or having discussed doubts with a senior colleague, giving the benefit of the doubt to the applicant (step 4), initial contact with the applicant must be made by telephone (step 5). There appears to be no doubt in Mandalia’s case: had such contact been made he would have provided the missing bank statement within the relevant timescale.
But this did not happen. Mandalia was not contacted. His application was refused.
Mandalia appealed without legal representation and provided the missing bank statement to the Tribunal. Although the EFP was not then in the public domain its existence was familiar to practitioners and Home Office Presenting Officers; appeals raising the issue were allowed and leave subsequently granted. Mandalia was excluded from the benefit of this protection at that time. His appeal was dismissed as the law prohibited the Tribunal from considering the evidence and the Home Office failed to make the Tribunal aware of the EFP, even though it had been actively promoted to interested parties such as educational establishments and referred to in reports to the Home Affairs Committee (see page 7) at that time.
By a series of unfortunate events, and notwithstanding an unrestricted grant of permission to appeal to the Upper Tribunal, these matters were substantively considered for the first time in the Court of Appeal in the joined case of Secretary of State for the Home Department v Rodriguez; Mandalia and Patel v Secretary of State for the Home Department  EWCA Civ 2. The Court was invited to depart from or distinguish its previous decision in Alam & Ors v Secretary of State for the Home Department  EWCA Civ 960 (originally concerning the commencement provisions of the law prohibiting the Tribunal from considering fresh evidence) that an evidential flexibility policy was merely the UKBA “… choosing to make improvements to its decision-making process as a matter of good administrative practice [and that the Court could not justify] imposing a general legal duty to that effect upon the Secretary of State” – not least on the basis that the Court had not been provided with the full factual position regarding the EFP. The Court of Appeal refused to do so, finding that such a view was “misplaced” (see para 99) – even though in Alam the Court of Appeal did not have sight of the EFP itself – a matter now acknowledged by Counsel for the Secretary of State in the Supreme Court.
When considering the EFP itself, the Court of Appeal found that it did not apply to Rodriguez. There can be little doubt that this was correct as the bank statement she had submitted with her application fell below the required level of funds for several days. It would have been pure speculation on the part of the Home Office to consider that she may (as she in fact did) have another bank account with further funds. The Court went on to apply the same reasoning to Mandalia. Yet Mandalia’s case is very different. He relied at all times on the one bank account and the statement provided with the application was always significantly above the minimum required level. There was, in the words of the policy, sufficient reason to believe that the information existed.
Another issue raised by the Home Office is whether or not Mandalia’s case falls within the “missing sequence” provisions of the EFP. According to their “book-ends” argument only statements in the middle of a series can be missing; those at the start or end of a sequence cannot be missing. According to this argument the first page of a paginated manuscript cannot be missing as it is not possible to know that there was a first page; equally if the first and last pages are provided it is “easy” to identify that the middle (26) pages are missing. By contrast, Mandalia claims that his case is a missing sequence case as he was required to provide statements covering 28 days, his statements straddled the 28 day period , they therefore constituted a sequence of documents (as no gap in the series would be accepted) and one of the pages was missing. According to this argument the first page of a paginated manuscript can be missing – the simple question is whether or not it is there. Equally, although if only the first and last pages are present so that the intervening pages are clearly missing, it is easier and more reasonable to believe that the missing pages exist when the majority of the intervening period is covered.
The Court of Appeal found that Mandalia’s was not a missing sequence case – but provided no reasons for that finding beyond referring to an assertion to that effect on behalf of the Home Office.
These are now matters for the Supreme Court to decide.
These matters are of ongoing interest. Even the brightest and best can make inadvertent mistakes. Evidential flexibility, which is now incorporated directly into the Immigration Rules, provides a welcome relief from the harsh consequences of such errors, without offering an easy option for those who do not meet the requirements of the immigration rules. As the Upper Tribunal states in Sultana and Ors (rules: waiver / further enquiry; discretion)  UKUT 540 (IAC) these provisions help to “… fortify the overall integrity of the United Kingdom immigration system …” and (at least in relation to Tier 1 applications) serve “… to advance an identifiable public interest of some importance.”
Those using and applying the new Administrative Review process (which has replaced the right of appeal in most cases) will benefit from clear guidance from the Supreme Court. It is to be hoped that this confirms the EFP was not the mere puff of advertising, but meaningful words with real effect.
Of course, it is far better to get the application right in the first place.