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Evidential flexibility policy is additional to the provisions of the Immigration Rules

In yet another case highlighting the absurdly hostile, bureaucratic and inflexible nature of the UK’s Points Based System the Court of Appeal has held that a Tier 1 Entrepreneur might benefit from a policy on evidential flexibility that was “much broader” than the rules themselves. The case is SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426.

The refusal arose because the claimant had to make his immigration application before his graduation certificate was issued; his leave was going to run out so an application had to be made. He needed the degree certificate to show that he met the English language requirement of the rules. There was an alternative, though, which was to provide an academic transcript from the awarding institution on official headed paper showing certain details. The claimant attempted to do this, but sent in a letter from the college he had studied at rather than the awarding institution.

As it turned out, the Home Office then sat on the application for nearly six months, by which time the graduation certificate was available. Without asking for a copy of the certificate, though, the Home Office refused him anyway.

An immigration judge took a hard line and refused the appeal and this was upheld in the Upper Tribunal.

On appeal to the Court of Appeal slightly different arguments were put. Mr Zane Malik for the appellant first argued that the rules themselves, at paragraph 245AA on evidential flexibility, required the Home Office to have asked the appellant for the missing document. This argument was rejected.

Mr Malik next argued that in any event, the evidential flexibility policy was differently drafted to the rules and properly understood, the policy required the Home Office to have asked for a copy of the missing document. Giving the leading judgment, Elias LJ held that the exceptions in the evidential flexibility policy were “much broader” than the rules and that the policy states that it applies “when an application has missing evidence or there is a minor error on an application”. This was sufficient to encompass the appellant’s situation and therefore the Home Office had acted unlawfully in not applying the policy.

An interesting third argument concerning common law fairness was also advanced, but the Court declined to give judgment on it. Elias LJ declined to comment at all but Beatson LJ could not resist and says, entirely obiter:

Mr Poole [for the Home Office] submitted that in cases where the problem that arose was not due to the fault of the Secretary of State and there was compliance with the relevant rules and policies, there was no room for invoking the common law principle of fairness because of the inroads it would make into the efficient operation of the points-based system. Given that a Secretary of State may act unfairly (see the authorities I have cited) notwithstanding her compliance with the Rule and the terms of the majority judgments in EK (Ivory Coast), that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State’s conduct.

A good result for Zane Malik.

As a footnote, there are those who have suggested that the evidential flexibility policy addressed by the Court of Appeal in this case does not exist or that it is entirely coterminous with the rules. They are wrong.

Source: SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426 (18 February 2016)

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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