Evidential flexibility in visa applications - points-based system complexity

22 February 2018

"Evidential flexibility" sounds helpful and reasonable. As its name might suggest, it is a principle whereby UK Visas & Immigration caseworkers can exercise some discretion when a visa application suffers from some minor deficiency. They can (but under limited circumstances) request additional documents if documents are missing and they can (also under limited circumstances) grant an imperfect application if it is clear that the application does nonetheless meet the requirements of the rules even if not all the correct evidence was provided.

But, like a lot of things to do with the UKVI, evidential flexibility got very complicated. Initially, it existed as a policy, outside the immigration rules. This was actually very helpful, because the policy was quite detailed, and provided a good idea of how caseworkers would operate the policy.

But then things changed and the evidential flexibility policy was subsumed into the immigration rules - but in a much more minimal and less helpful form. Then there were thousands of words expended in decisions of the courts as to whether evidential flexibility existed as both a policy and a rule-based entity.

Thousands of words later, the courts said No, it does not. It now only exists, in its rather sparse form, in the immigration rules.

Evidential flexibility exists in two areas of immigration law: family visa applications and points-based system applications (surely by no coincidence two of the most complex areas). But the problem is that its character is entirely discretionary. Caseworkers have discretion to exercise the policy and that is it. They can exercise discretion if they see fit but the rules do not give any clue as to how and when discretion is likely to be exercised. The situation is very vague. There are general legal principles around about how Government decision-makers should exercise discretion, but how should such principles apply in the highly specialised and intricate world of visa applications?

The only way that we can get any firm clue as to how this discretion should be exercised is from the decisions of the courts. Just occasionally they have provided some valuable insight about this, and in a recent Court of Appeal case called "Mudiyanselage" they did just that.

The court (in the person of Lord Justice Underhill) stated in his judgement that: "Mr Poole [barrister for the Home Office] acknowledged that that discretion would on general principles have to be exercised consistently and in accordance with the underlying policy, which may mean that in many cases the discretion will in practice be an obligation."

These are strong and definite words, and applicants and their lawyers are likely to try and rely on them in future. They appear to "nail down" the UKVI in its exercise of discretion in the context of evidential flexibility.

But in this case LJ Underhill also made some more general remarks about the points-based system. The PBS is, in its entirety, a very large scheme: it includes Tier 1 (entrepreneurs, investors, highly-skilled migrants), Tier 2 (skilled work permit holders), Tier 4 (students) and Tier 5 (temporary workers).

LJ Underhill provided a very good flavour of the PBS immigration rules:

"The basic structure of the rules with which we are concerned is as follows. Part 6A comprises a series of paragraphs all starting "245" but distinguished, in a rebarbative system which makes navigation far from straightforward, by a series of following letters from (currently) AAA to ZZE. These set out a number of general provisions together with the requirements which applicants under the various tiers must satisfy. Some of those requirements relate to the number of points which an applicant must qualify for under various Appendices … … the points available are set out in a series of tables, but the requirements of the table may be amplified in a further paragraph or paragraphs."

He is absolutely right: the structure of the rules is very complex, and we particularly note his use of the word "rebarbative" - which our dictionary tells us means repellent, unattractive or objectionable. Yes, they are probably all three of these.

LJ Underhill is not the first, and probably will not be the last, judge to criticise the complexity of the PBS, but another point emerges from this case. Although it is regrettable that the rules are so complicated, this does not make them unlawful. The Home Secretary is entitled to make rules and is entitled to make complex rules (although there may be an overhanging implication that they could be somewhat simplified). Evidently he took the view that evidential flexibility has a clear part to play, but its remit must necessarily be limited: it cannot save an application that is fundamentally weak.

And so of course when you are preparing your PBS application it is best to make sure that you meet all the evidential requirements in the first place, so as not to have to rely on evidential flexibility. And you might want to instruct a lawyer who is well versed in the PBS.

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