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Evidential flexibility now in Immigration Rules!
Good news for people applying under the Points Based System (including Tier 1 General, Tier 1 entrep ...
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Evidential flexibility now in Immigration Rules!

Good news for people applying under the Points Based System (including Tier 1 General, Tier 1 entrepreneurs and investors, Tier 2 General and Tier 4 students among other categories). The Home Office have now brought evidential flexibility firmly into the Immigration Rules. Changes made to the Rules which came into force from 28 October 2013 provide relief to applicants who were previously fearful of being refused by reason of providing documents that contained minor omissions or failed to show all of the information required by the vast body of documentary requirements set out in Appendix A of the Immigration Rules.

The new paragraph 245AA states as follows:

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 Entry Clearance Officer, Immigration Officer or the Secretary of State 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 specified documents in which:
(i) Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(iii) A document is a copy and not an original document; or
(iv) A document does not contain all of the specified information;
the Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received at the address specified in the request within 7 working days of the date of the request.
(c) Documents will not be requested where a specified document has not been submitted (for example an English language certificate is missing), or where the Entry Clearance Officer, Immigration Officer or the Secretary of State 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) which is a copy and not an original document; or
(iii) which does not contain all of the specified information, but the missing information is verifiable from:
(1) other documents submitted with the application,
(2) the website of the organisation which issued the document, or
(3) the website of the appropriate regulatory body;
the application may be granted exceptionally, providing the Entry Clearance Officer, Immigration Officer or the Secretary of State is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The Entry Clearance Officer, Immigration Officer or the Secretary of State 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 does appear to be very good news for applicants. We hope this will spell the end to the practice we have seen over the last few years of refusing applicants who clearly meet the substantive requirements of the rules on minor documentary grounds. The Home Office should now contact you, if for example, you submit a bank statement but it does not show your name, or if you leave out a payslip from a sequence of payslips, or provide a copy of a document instead of an original.

If you are refused for documentary reasons, however, and you feel that there was scope for having been contacted in accordance with this rule, please contact us as there may be good grounds for challenging the decision on the basis that this rule was not applied. Remember that the Home Office must make decisions in accordance with their own Immigration Rules. If they do not then an appeal against their decision will be successful. If an applicant does not have a right of appeal, perhaps because they still have a visa or because they applied out of time, then they may still be able to challenge the decision by Judicial Review.

Contact us for a free preliminary opinion.

Adam Reid – January 2014

The recent ground-breaking decision of the Upper Tribunal of the Immigration and Asylum Chamber in Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC) has confirmed that the Tribunal considers itself to have the jurisdiction to allow immigration appeals on public law principles of general unfairness.

This comes a time when the Immigration Rules, policies and application forms are being constantly updated sometimes causing applicants justified confusion. These decisions are therefore very welcome as they promise to open the door for Tribunal Judges to right some of the wrongs that are done when applications are refused.

The case concerns a Tier 4 applicant who was refused leave to remain on maintenance grounds. He was not considered to have an “established presence” in the UK as he did not provide evidence to show that he completed his previous course of studies. The arguments concerned the issue of whether evidence of the Appellant’s evidence of having completed the course was admissible at the appeal and if not, whether it was unfair to refuse the application given that the application form did not require the appellant to provide proof of having completed the course.

Upper Tribunal Judge Freeman, sitting with Justice Blake, President of the Tribunal, concluded that they were bound by Section 84(1) of the Nationality Immigration and Asylum Act 2002 and so not able to admit new evidence but made the following comments in relation to the principle of unfairness:

In our judgment the problem arises not with the terms of the section, which is in any event binding on us as primary legislation, but with the conduct of the respondent in examining the application and refusing it in the way she did.Given that the respondent was (or should have been) aware of the consequences of s. 85A when she made the decision in this case, the respondent is under a common law duty to act fairly in deciding immigration claims properly made to her. A failure to act fairly is a failure to act in accordance with the law and a failure to make a decision in accordance with the law is a ground of appeal to the tribunal under s.84(1)(e) of the Nationality Immigration and Asylum Act 2002.

Two recent decisions of the Upper Tribunal are relevant: Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC) and Thakur (PBS decision – ‘common law fairness’) Bangladesh [2011] UKUT 151 (IAC). Both dealt with the problem referred to in the long title of Patel, where a student’s sponsoring college has its licence revoked between the student’s application, and an adverse decision on it, based on the revocation which the student could have known nothing about.


The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law. Applying that to the circumstances of the present case, the decision is not in accordance with the law, and accordingly a lawful decision has yet to be made, because the Home Office never put the appellant on notice that such evidence would be required, or gave him any opportunity to answer the result of their inquiries with his college. There was nothing at all in the application form to show that the appellant needed to include documentary evidence of his right to ‘established presence’; and no chance of his producing any evidence to contradict the result of the inquiries, only revealed in the decision itself. (paragraphs 15-19)

The Tribunal then went on to allow the appeal and noted that they expected the Appellant to be granted leave to remain as he did clearlyhave an “established presence”.

It remains to be seen how far and in what circumstances the Tribunal will be willing to apply the principle of unfairness. There may bemany cases where an application form does not explicitly ask for a document. It may be arguable that it could also be applied where a form or policy guidance document is unclear or confusing and has reasonably led an applicant to make a mistake or to neglect to send a document.

If you have recently had an application refused and are not sure whether you have a strong appeal, please contact us and you can speak to one of our partners who will be happy to give you a brief preliminary opinion over the phone.

Adam Reid
January 2013

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Tier 1 and Tier 2 Appeal and Judicial Review Victories
The Home Office have been interpreting the Tier 1 and Tier 2 requirements very strictly.

We have had great success in winning many appeals and Judicial Reviews against Tier 1 and Tier 2 refusals.
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Entry Clearance Appeals
Decisions of Embassies and BHCs overseas sometimes fail to fairly consider an individuals case. Refusals over the last few months have often been on maintenance grounds on the basis of minor issues with documents.

We have an excellent record of overturning unfair decisions made by Entry Clearance Posts.

See more details of our recent successes.
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