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New evidential flexibility policy

New evidential flexibility policy

Bendy rule
Bendy rule

Rumours as to the death of the ‘evidential flexibility’ policy prove to have been exaggerated. A new version was recently published. Hat tip to Adam Pipe of No 8 Chambers in Birmingham.

The policy covers the circumstances in which a Points Based System application will not be refused because of some sort of missing, incomplete or incorrectly formatted evidence or information. ‘Evidence’ and ‘information’ seem to be used interchangeably in the policy and quite considerable discretion is imparted to UKBA caseworkers as to how they approach a case that would on the face of the Immigration Rules fall for mandatory refusal.

If I had a suspicious mind I would be concerned that the flexibility is applied generously to the ‘right sort’ of applicant from, say, majority white countries, but little flexibility is applied to the ‘wrong sort’ of applicant, say from countries that are euphemistically referred to as ‘high risk’. It was the elimination of this sort of subjective discrimination that was supposed to be the virtue of the Points Based System, along with simplicity and ease of use. It feels like we have the worst of all possible worlds now – a system that is dementedly complex, which transcends mortal comprehension and yet which also allows for subjective and arbitrary decision making.

Incidentally, it turns out that the Modernised Guidance section of the policies part of the UK Border Agency website is the perfect place to hide a policy. It is virtually impossible to find anything there unless you know what you are looking for and where to find it.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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