Home Office Evidential Flexibility Policy Explained

Evidential flexibility is the name given to the set of provisions allowing decision-makers to take a more pragmatic approach to gaps in evidence. When evidential requirements are nearly met, decision-makers may treat them as met anyway or else request further information or documents from the applicant or third parties.

Evidential flexibility is not applied uniformly across the different visa categories. Applicants under the EU Settlement Scheme, Appendix FM and the Point-Based System can all ask decision-makers to consider some form of evidential flexibility. These three categories of applicants will be considered in turn.

EU Settlement Scheme Evidential Flexibility

Appendix EU itself does not contain a delineated evidential flexibility scheme. However, the EU Settlement Scheme as a whole has some of the softest evidential edges of any immigration category, the Home Office guidance repeatedly emphasising that decision-makers should take a “flexible and pragmatic approach” to evidence. This is particularly the case in relation to evidencing residence requirements, though it should be noted some of the evidential requirements in the Annexes of Appendix EU are framed as definitions and are, accordingly, less flexible.

This notwithstanding, page 10 of the Home Office guidance on the EU Settlement Scheme quotes from paragraph 1.15 of the Statement of Intent on the EU Settlement Scheme, published on 21 June 2018, as follows:

The Home Office will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens. 

The guidance continues as follows:

Each case must be considered on its own merits and you must work flexibly with the applicant to try to obtain sufficient supporting information or evidence to satisfy you of their identity and nationality or of their entitlement to apply from outside the UK.

[…] more than one piece of evidence can be requested on a case by case basis and each case must be considered on its own merits to help you build a picture of the applicant’s identity and nationality or of their entitlement to apply from outside the UK.

The guidance states, in relation to evidence required to establish residence in the UK, that caseworkers “must work flexibly with applicants to help them evidence their continuous qualifying period of residence in the UK by the best means available to them.”

The EU Settlement Scheme takes the most flexible approach to evidence of the three visa categories considered in this article. Where information or a document is missing due to oversight or any other reason, the Home Office should liaise with the applicant to locate it or a suitable alternative.

Appendix FM Evidential Flexibility

The position in relation to applications under Appendix FM and evidential flexibility is quite different. 

Unlike the EU Settlement Scheme, Appendix FM has strict ‘specified evidence’ requirements, meaning that specific documents must be provided, as opposed to any evidence to satisfy the decision-maker of a particular fact to the requisite standard of proof. 

For example, rather than merely satisfying the decision-maker that the applicant earns over £1,000 per month on the balance of probabilities (which might be done by providing a selection of bank statements, payslips, a letter from the employer, rental income documents, etc.), a specified evidence requirement might require the applicant to provide official payslips and bank statements on official bank stationery from the past 6 months.

Having a set of specified evidence requirements, Appendix FM is evidentially more prescriptive and rigid than the EU Settlement Scheme. However, evidential flexibility provisions in relation to these specified evidence requirements is built into Appendix FM, in paragraph D of Appendix FM-SE. The provisions place relatively strict limits on when and how much additional evidence may be sought by caseworkers after an application has been submitted, and when an application can be granted though the strict specified evidence requirements have not been met.

Under Appendix FM-SE, the caseworker will only consider documents that have been submitted with the application, except in specific circumstances where she may request further information or grant the application without the specified document. Full details of how the scheme operates in relation to Appendix FM-SE are explained in our first article on the topic written almost 10 years ago, which sets out how evidential flexibility operates under paragraphs D(b), D(d) and D(e).

The recent Home Office guidance confirms that decision-makers are “able to grant an application despite minor evidential problems (but not where specified evidence is missing entirely)” and that they have a “general discretion to request additional information or evidence before making a decision.”

An important difference from evidential flexibility in relation to the EU Settlement Scheme is the difference in wording (“may” in Appendix FM v “must” in the EU Settlement Scheme):

• Paragraph D(b)(ii): “the decision-maker may contact the applicant or his representative in writing or otherwise, and request the document(s) or the correct version(s).”
• Paragraph D(d): “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.”
• Paragraph D(e): the decision-maker “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.”

Discretionary powers are not unfettered powers. They can be subject to challenge in the courts on, for example, the grounds of “a failure to take into account all material considerations; disregarding a material consideration; emasculating the discretion by the imposition of an inappropriate fetter; improper motive; material error of fact; irrationality; and misunderstanding the nature and/or scope of the discretion in play” (Sultana and Others (rules: waiver/further enquiry; discretion) [2014] UKUT 540 (IAC).

However, applicants should be advised to ask the decision-maker to apply the evidential flexibility provisions if they discover that a specified document is missing, especially if the applicant has explained why a specified document is missing in the application. Doing so triggers an obligation for the Home Office to provide at least a brief explanation why they have not exercised the discretion, as set out in Sultana:

We would also encourage applicants and their advisers who consider that any of the discretionary powers conferred on the ECO by paragraph [D] should be exercised in their favour to proactively make this case when submitting their applications. It would be highly desirable to draw to the attention of the ECO the specific provision/s of paragraph [D] invoked in support of a request to exercise discretion and to set out fully the grounds of such request. […] Furthermore, in the event of an invitation to exercise discretion being refused, one would expect a brief explanation to be given. For the avoidance of doubt, we take this opportunity to emphasise that an adequate, intelligible explanation for any discrete refusal of this kind should always be provided by the ECO.

Appendix FM has much more prescriptive evidential requirements than the EU Settlement Scheme. Applicants should make every effort to provide specified evidence to maximise the chances of a successful application. However, there is a limited discretionary power for caseworkers to look past minor errors and/or to give applicants an opportunity to correct them.

PBS Applicants and Evidential Flexibility

The evidential flexibility provisions for points-based system (PBS) applications are contained in paragraph 245AA of Part 6A of the Immigration Rules. The language of the provisions is very similar, though not identical to paragraph D of Appendix FM-SE.

The Home Office has published guidance on the application of paragraph 245AA. The policy document states decision-makers “should normally” provide an opportunity for additional information to be provided “if it appears that the applicant has made an error with, or omitted, supporting evidence, or further information or verification of evidence is needed to make a decision.”

The guidance states that decision-makers should consider contacting applicants:

• if evidence is missing that you believe the applicant has, or could obtain
• if evidence is inadequate but could be further clarified – for example, if an employer’s letter has been provided but it is missing relevant information, for example, it does not confirm the applicant’s gross annual salary

Decision-makers are advised by the guidance to discuss with senior caseworkers or appropriate managers if unsure whether to seek additional information.

Decision-makers are also advised to consider obtaining missing or inadequate information from other sources if possible “information may be accessible to you on the case work systems, such as from the Confirmation for Acceptance of Studies (CAS) or from a previous application.” Thus, decision-makers are discouraged from being overly mechanistic in their approach to evidence.

The decision-maker is not required to make contact with the applicant or a third party if the missing/inadequate evidence would make no difference to the decision, e.g., because it would still be refused on other grounds.

The guidance states that the policy does not extend to offering applicants an opportunity to show they meet the requirement in a different way. It gives the following example:

• if the applicant provides bank statements and they do not show the required level of funds or the evidence is not sufficient to satisfy you, there is no need to check whether the applicant has another bank account that might meet the requirement

The evidential flexibility policy for PBS migrants is expressed in discretionary terms, but case law has generated on when decision-makers should exercise it, and indicates that they must consider exercising the discretion where documents are missing. Our previous blog post provides more detailed information on how evidential flexibility applies in these circumstances.

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