The web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.

So says Lord Justice Underhill in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65, the latest decision in a long lineage examining the much maligned Points Based System. Examining the concept of “evidential flexibility”, Underhill LJ concludes that the sole authority for the exercise of that discretion is now within the Immigration Rules.

A short history of the spider’s web

The original White Paper entitled A Points-Based System: Making Migration Work for Britain, published in 2006, is now an interesting historical document. It proposed a logical and forward-thinking system, providing efficiency and clarity for both applicants and the authorities.

What we have 12 years later is something quite different, as reflected in frequent comments by judges in their decisions on the topic.

the forms are complex and the requirements most rigorous

a degree of complexity which even the Byzantine emperors would have envied

regrettable complexity

As explored by Underhill LJ in his summary of the existing authorities, successive courts have taken the broad view that whilst we now have a system of almost unfathomable complexity and draconian consequences for failure, it is not the court’s role to question the efficacy or utility of the system, but to ensure that it is operated lawfully in individual cases.

Lord Wilson commented in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 that judicial reservations about the suitability of the system must be suppressed. By providing parliamentary approval of (or rather a lack of objection to) successive changes to the Immigration Rules, and in particular Part 6a and Appendix A of the Rules, “Parliament has indorsed the Secretary of State’s considered opinion that a points-based system is the optimum mechanism for achieving management of it”. (He does spell it “indorsed”.)

On one level that may be an optimistic view of what actually takes place, as a kaleidoscope of Statements of Changes to the Immigration Rules are published with dizzying pace and in a way that seems determined to prevent Parliament from having any meaningful oversight of the regime.

Evidential flexibility: a little help for the fly

Mudiyanselage is a complex decision. There were six appellants who had been refused various Points Based System visas because of omissions or issues with the documentation supplied. Only one was successful in this appeal.

Their broad arguments were straightforward: the policy of “evidential flexibility” should have been applied to their cases (excepting the final appellant, Kokab, whose case against the Entry Clearance Officer was somewhat different).

Introduced in secret in 2009, evidential flexibility was designed to provide a limited degree of discretion to caseworkers dealing with Points Based System applications.

The Points Based System imposes precise requirements for documents required to support an application. If the documents provided do not meet those requirements, or are not provided at all, the application is refused. Tied with the hostile environment for migrants, this can lead to severe consequences, including termination of an applicant’s right to live here. Whilst there was in the past a right of appeal to the First-tier Tribunal (now gone), statutory changes hobbled that remedy in its last years by preventing an applicant from presenting a document to the tribunal which had not been sent with their application.

The evidential flexibility policy was to some extent an admission by the Home Office that the system was producing harsh results, even by its standards. The policy provided that a caseworker had a degree of discretion to contact a migrant to allow them to correct minor errors or omissions in relation to specified documents.

The circumstances under which it was possible to take this approach were defined within the guidance document.

Certainty on evidential flexibility – for now

A significant additional complication for the court was both the frequency and disharmony of changes to a policy presumably designed to make the web easier to navigate. Instead, it became itself a tangle.

Originally the evidential flexibility policy was simply that, a policy (and a secret one at that). In 2012 the policy was incorporated into Part 6a of the Immigration Rules, at paragraph 245AA. Then for a time the policy went AWOL, before returning.

The Immigration Rules then underwent a series of amendments, as is so common, often changing the language used in important ways. The policy, which at times co-existed with the Rules, was also revised on numerous occasions. Further complicating the issue, these changes were disharmonious: the policy not fully reflecting what was in the Rules and initially providing for a more generous regime than that provided for under the Rules.

The Rules changed three times from September 2012 to October 2013 before settling into their current form. The policy guidance from 2009 until 2016 consisted of eight different versions.

Underhill LJ’s unenviable task, presented with these multiple appellants and different histories, was to carefully unpack which version of the Rules and which version of the policy was applicable to each case at the material time. This was necessary because the precise interpretation of the words used in the Rules or guidance at any material time was of the utmost importance in deciding if the Home Office acted lawfully or not.

Underhill LJ concluded that the Rules and policy are now aligned. There is no separate, more advantageous, regime contained in the policy. By version 4.0 the policy reflected what was in the Rules. The judge could not resist a passing comment:

I strongly suspect that that mismatch was always unintentional and that it was the result of incompetence in ensuring that the requirements of the Rules and the Guidance coincided.

So where are we now? Paragraph 245AA states:

If the applicant has submitted the specified documents and:

(i) some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided;

(ii) a document is in the wrong format (for example, if a letter is not on letterhead paper as specified);

(iii) a document is a copy and not an original document;

(iv) a document does not contain all of the specified information

the decision maker may contact the applicant or his representative in writing, and request the correct documents. Such a request will only be made once, and the requested documents must be received at the address specified in the request within 10 working days of the date of the request.

This discretion excludes situations where a document is entirely absent, rather than missing a part of a series, or where correcting the issue would not lead to success under the Rules for other reasons. A caseworker is also permitted in some limited circumstances to waive the requirements of the Rules, but only when the document is a copy rather than an original, is in the wrong format, or is missing information which is verifiable from other documents.

So after nearly a decade we hopefully have a fixed position on the exercise of evidential flexibility. Until the next change.