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Evidential flexibility policy revealed

Evidential flexibility policy revealed

Bendy rule

Further to Sarah Pinder’s earlier post on this subject, I have been provided with a copy of the infamous “PBS PROCESS INSTRUCTION EVIDENTIAL FLEXIBILITY” document in response to a Freedom of Information Request. I am very grateful to Jane Heybroek [ed. valued occasional blog commenter!] for sharing it.

A copy of the document itself appears here and the FOI request here.

Many of us have argued about the existence of this policy in the context of Points Based System appeals for some time now.  We have been able to point to various sources to confirm that there is such a policy, but not to any document outlining the details of it and also the procedures to be adopted by case workers.

The precise procedure to be followed by case workers is outlined in a step by step approach within the document.  It is very clear and very detailed.   In short, evidential flexibility should be applied where:

  1. there is missing evidence;
  2. the application would not fall to be refused even if the missing evidence were to be provided;
  3. it is established that the evidence exists or there is sufficient reason to believe that the evidence exists;
  4. case workers MUST contact the applicant/rep/sponsor by telephone for the evidence – no more than two attempts to contact by telephone.  If there is a rep, they must be contacted.  Email contact should follow the telephone call.  If  telephone contact cannot be made, a letter should be sent;
  5. a time frame of 7 days is given for a response to the request: case to left open for 9 days;
  6. the evidential flexibility spreadsheet must be completed fully by case workers;
  7. after  9 working days the case should be  reassessed;
  8. if the case is refused, all attempts to contact the applicant should be referred to in the immigration history and any written contact/responses should be included in the appeal bundle;
  9. if evidence is received after the deadline but before the case being despatched then the evidence will need to be considered and the case reassessed.

In addition, attached to the document is:

Annex A : a non exhaustive list of types of evidence;

Annex B: a telephone script of what to say when the telephone call is made by case worker to applicant;

Annex C: questions and answers about the policy.  However, who exactly is asking some of these questions is not clear as the policy is not widely available to applicants;

Annex D contains a letter template for the request.

The FOI request letter also confirms that the policy is used in only 3%-5% of cases…

So there is it.  For some it may be too late.  For others, it may be appropriate to consider further action (eg, further representations, judicial review, out of time appeals).  At least there can now be no doubt about the fact that this is a policy, which was introduced on 10 August 2009.

Sanaz Saifolahi
Sanaz has practised in the field of immigration law for over 13 years. She is well regarded for her thorough case preparation, effective advocacy and personable nature. Sanaz is also an assessor for the Law Society ‘Immigration Law Advanced’ Accreditation Scheme.

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