A big thank you goes to Jane Heybroek of Bell Yard Chambers for persisting with her Freedom of Information request in relation to further documents concerning the Evidential Flexibility policy. You can access the disclosure here. The policy (but not Jane’s FoI instructions) was very recently covered by the Upper Tribunal in its decision of Rodriguez (Flexibility Policy)  UKUT 00042 (IAC), to which the other policy instructions are usefully annexed. Related posts and documents previously uploaded by Free Movement can be accessed here.
The documents within Jane’s FoI request are essentially the full sets of instructions that were issued to caseworkers back in August 2009 when the policy was seemingly first put into place. This coupled with Rodriguez, means that there can be no doubt now of the policy’s existence dating back to 2009. It also shows that it is worth reviewing cases which might have failed at appeal level due to section 85A of the 2002 Act coming into force in May 2011 and in which the policy should have been applied. It has taken a shockingly long time for the various sets of case-working instructions to become available in the public domain, for the various Policy Guidance to be amended and for the Rules to finally reflect these types of changes in practice. With the latter only being started in September of last year.
Specifically Paragraph 245AA of the Rules now states:
245AA. Documents not submitted with applications
(a) Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).
(b) If the applicant has submitted:
(i) A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) A document in the wrong format; or
(iii) A document that is a copy and not an original document, the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.
(c) The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.
(d) If the applicant has submitted a specified document:
(i) in the wrong format, or
(ii) that is a copy and not an original document,
the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).
This still needs to be read in conjunction with the Evidential Flexibility instructions and also the UKBA’s letter of 19 May 2011, which was also the subject of Rodriguez (see Appendix A of that judgment for the letter in full). This letter is important as it states that:
In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection.
This arguably allows a wider discretion than the Evidential Flexibility instructions do as it sets out the applicable scenarios as being when there is missing mandatory evidence, without stipulating further restrictions. The head-note in Rodriguez summarises the position nicely for cases where the 19 May 2011 letter applies and where it might not apply:
Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (“PBS”). This was revised with effect from May 2011. In its policy letter of 19th May 2011, UKBA states that during an unspecified trial stage applicants will be contacted where mandatory evidence is missing from their applications and given the opportunity to provide this. UKBA is under a public law duty to give effect to this policy in all cases to which it applies.
As regards all other applications, to which the policy letter does not apply, UKBA case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998.
Sorry a lot of emphasis added there!