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Latest statement of changes to the Immigration Rules - original documents and evidential flexibility

20 November 2018

Amidst the news of the continuing steep increase in visa application costs (the IHS health surcharge is set to double to £400 per year in December, with discounts for some), the latest statement of changes to the Immigration Rules, dated 11 October, is quite a nice one and contains, inter alia, some items that migrants may find helpful.

For many years the Home Office and its various incarnations have insisted that supporting documents submitted with applications must be originals. There were a few exceptions: documents which appear on an official website (eg HM Land Registry title documents) did not need to be original, and in some cases certified copies of documents were acceptable, but mostly the rule was firm.

The stated reason for this was that it is more difficult - for those who are so inclined - to forge or manipulate original documents than it is to forge or manipulate copies. This rationale did make some sense but, in any event, the Home Office is now significantly relaxing these rules, and many categories of applicant will now find that copy documents are acceptable.

These changes will make life easier for some, and perhaps particularly for those who are - quite understandably - unwilling to part from their crucial documents and entrust them to the immigration authorities.

Another announced change certainly sounds favourable but is rather more nebulous. Over recent years, and through many twists and turns, the Home Office has had various policies and rules concerning "evidential flexibility". The courts have on occasion got involved in finding the appropriate meaning of the various Home Office materials on the subject.

Evidential flexibility was an attempt to provide some flexibility into the rules for supporting evidence for visa applications (and hence the snappy title) which, in some categories, are very complex.

Basically and briefly, these rules - which nowadays appear at various points within the Immigration Rules, with variations - say that if an applicant submits an application which stands for refusal because it has missing documents, incorrect documents or something else wrong the caseworker may contact the applicant and ask for the document that is missing or some other form of rectification.

The explanatory text in the statement of changes sounds encouraging:

"The changes provide for a more generous approach to evidential flexibility. The policy previously allowed for a caseworker to write once, in very precise circumstances, to request further information where an applicant had failed to provide the evidence required. These changes provide more flexibility to caseworkers regarding whether and when they may write to applicants to ask for any missing documents required, to be provided within a reasonable timeframe."

And so new, simplified, text in the immigration rules now appears as follows:

"Where an application for leave to remain does not meet the requirements … the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification."

But the reader will note that this only applies to applications for leave to remain (ie from in the UK), not entry clearance (from outside the UK). The situation is rather complicated because the points-based system and family visa scheme have their own evidential flexibility rules, which are different (and narrower in scope), but these rules apply either to leave to remain applications or entry clearance applications.

So - and as is so often the case - the Immigration Rules present a complex scheme. The upshot is that most visa applicants have the benefit of evidential flexibility rules but some categories of out-of-country applications - eg visitor visas, ancestry visas, representative of overseas business visas - do not.

But, in any event, there is a large overarching problem in this area: the dreaded word may, which appears in all the variations of the rule. It means that there is discretion. To put it another way, the decision-maker may or may not contact the applicant if something is wrong. Nowhere do the rules say that a decision-maker will or must do so.

So of course the question is, under what circumstances should the decision-maker do so? This is the issue.

It is a complex area, and the Home Office has published guidance on the subject which is commensurately complex, and not a great deal clear.

Our best hope may lie with the fairly new Home Secretary, Sajid Javid, who has said that he wants the Home Office to operate a "fairer, more compassionate" immigration system. Perhaps he will have a word with his caseworkers and ask them to exercise their discretion generously.

But anyway this does like a move in the right direction, even if it is not clear how far it has moved, and this latest statement of changes looks positive.




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