Specified evidence requirements of the Immigration Rules for UK Visas
Whilst it has always been necessary to submit evidence demonstrating that the requirements of a particular rule, policy or other provision are met, the Immigration Rules increasingly include requirements for specified evidence – setting out not just the type of evidence required but also the format for that evidence. Get the evidence wrong and the application will be refused, irrespective of any other perceived merits.
The majority of applications are now caught by several such requirements. In this series of three articles we look at some of the elements relevant to "specified evidence": specified documents; specified periods; and flexibility. Affected documents can include: pay slips; employer letters; bank statements; company accounts; accountant's letters; education certificates; English language tests; loan agreements; and contracts. This article looks at some documents in specific contexts. The requirements of your particular application should be considered closely as the requirements can vary from Rule to Rule – and any Rule can vary over time.
Bank statements submitted to demonstrate that the maintenance fund requirements under the Points-based System are met must: cover the specified period (see below); clearly show the name of the applicant (and / or the applicant's parent, legal guardian, or partner as appropriate and if relevant), the account number, the date of each statement, the financial institution's name and logo, any transactions during the specified period, and that the required funds have been at the required level throughout the specified period; be printed on the bank's letterhead, or be electronic statements accompanied by a supporting letter from the bank on company headed paper confirming the statement provided is authentic, or be electronic statements bearing the bank's official stamp on every page; and the most recent statement must be dated no earlier than 31 days before the date of the application. The statements must not be mini-statements from ATMs.
Whilst most original UK bank statements are likely to automatically meet the format requirements, errors can be made. Particular care should be taken to ensure that the statements cover the specified period appropriate for the particular application and, if relying on electronic statements, that the appropriate confirmation from the issuing bank is included.
Pay slips for a family based application under Appendix FM should be original formal payslips issued by the employer and showing the employer's name. If not they must be accompanied by a letter from the employer, on the employer's headed paper and signed by a senior official, confirming that the payslips are authentic. The payslips must cover the specified period (six or twelve months as appropriate) and the most recent pay slip must be dated no earlier than 28 days before the date of the application.
Whilst many UK pay slips will be original formal payslips, many employers now provide pay slips printed on ordinary A4 paper. Inevitably, there will at some stage be a dispute as to whether particular documents are original formal payslips issued by the employer. Such a dispute could be avoided by including an employer's letter meeting the above requirements in every case – particularly as it is necessary to include an employer's letter in any event (whatever payslips are provided) confirming other information regarding the employee.
For Tier 1 Entrepreneur applications where investment and business activity has already taken place the applicant will need to submit the business accounts. If the business is a registered company required to produce audited accounts then those audited accounts must be provided. Clearly, those accounts must meet any statutory or regulatory requirements for audited accounts. If the business is not required to produce audited accounts then unaudited accounts must be provided along with an accounts compilation report from an accountant who is a member of a Recognised Supervisory Body.
Whether audited or unaudited, the accounts must: show the name of the accountant; show the date the accounts were produced; be prepared and signed off in accordance with statutory requirements; and show how much the applicant has invested in the business. The accounts must show the investment in money made directly by the applicant. Any investment by way of a director's loan must be shown in the accounts and, if the investment is by way of share capital, the accounts must show the shareholders, the amount and value of the shares on the date of purchase in the applicant's name as it appears on the application (although share certificates may be submitted as an alternative).
Some small signs of flexibility
For migrants required to submit one or more contracts for service the Rules require each contract to be either original or signed by the applicant on each page. Although this could be read as requiring the entire contract to be in a single document, the Upper Tribunal held in Shebl (Entrepreneur: proof of contracts)  UKUT) 216 (IAC) that "… it is inconceivable that the entrepreneur route was to be confined to the types of trading in which contracts are made by single documents." Applicants relying on this decision should still provide a full paper trail – oral contracts will not suffice.
The Home Office also operates a limited policy of evidential flexibility to correct minor errors and omissions. These provisions will be discussed in the third article in this series.
Check. Check again. And check again. The implications of getting the evidence wrong are significant. Not only are the application fees high (e.g. £4,821 for a Tier 1 General migrant submitting an in-country application with a partner and child as dependents), already limited appeal rights are about to become even more restricted. Changes introduced by the Immigration Act 2014, and which are likely to come in to effect in October 2014, mean that an otherwise lawful migrant who has made an innocent mistake by failing to provide specified evidence with their application may become an unlawful overstayer. It is therefore more important than ever to ensure that applications for entry clearance, leave to remain and settlement satisfy the strict specified evidence requirements of the Immigration Rules.
For advice or assistance with navigating through the specified evidence requirements of the Immigration Rules, contact our immigration barristers & lawyers in London on 0203 617 9173 or by email to email@example.com.