[2025] UKUT 00229 (IAC)

Mr Malik submitted that paragraph 245AA and the current version of the Evidential Flexibility policy are no longer aligned in the way that they were when Mudiyanselage was decided. I agree, for the following reasons.

Version 8 of the policy, an excerpt from which is at [45] above, made extensive reference to paragraph 245AA, which it described as the “evidential flexibility rule”. That version of the policy stated clearly that additional information could only be requested “in the specific circumstances set out in paragraph 245AA(b).” In the current version of the policy, there is no reference to paragraph 245AA, and no suggestion that the policy is intended to be nothing more than coterminous with the Rule.

The reason for the lack of reference to paragraph 245AA is clear when one considers the titles of version 8 and version 11. Version 8 is entitled Evidential Flexibility: points-based system, whereas version 11 is simply Evidential flexibility.

As I have already mentioned, version 11 states at the outset that it applies to “all routes except Appendix FM and protection routes.” It is therefore unsurprising that there is no reference to paragraph 245AA. That paragraph of the Immigration Rules applies only to applications under the Points Based System, whereas version 11 of the policy applies more widely. It might have been better to make that clearer by making the current version of the policy version 1, since it is in truth a document of much wider application than its supposed predecessor.

Paragraph 245AA(b) continues to apply only to cases in which an applicant has submitted the specified documents but there is a specific problem with those documents. The list of scenarios given in that paragraph is clearly intended to be exhaustive. There is a discretion (as indicated by the word “may”) to contact the applicant or his representatives in limited circumstances but it does not extend to cases in which the wrong document was supplied. The current version of the policy is not so constrained. As Mr Malik noted, it extends to a case in which an applicant has “made an error with, or omitted, supporting evidence”.

The discretion to contact an applicant is not expressed in the same permissive terms as paragraph 245AA(b). Whereas the rule provides that a decision maker “may” contact an applicant in limited circumstances, the policy provides that the decision maker “should normally provide an opportunity for the additional information to be provided.”

It is clear, therefore, that paragraph 245AA and the Evidential Flexibility policy are no longer aligned in the way that they were when Mudiyanselage & Ors v SSHD was decided in 2018.