[2025] UKUT 00229 (IAC)

The process of administrative review applies to certain “eligible decisions”. That term is defined at AR2.1. Refusals of entry clearance and leave to enter and remain on certain specified routes under the Immigration Rules are eligible decisions. So too are decisions to cancel entry clearance or leave to enter or remain in certain circumstances.

Administrative Review is designed to decide whether the decision was “incorrect” because the eligible decision failed to apply, or incorrectly applied, the relevant Immigration Rules; or the eligible decision failed to apply, or incorrectly applied, published guidance. What must be shown is therefore for a defined type of “incorrectness” in the original decision. So much is clear from AR 3.1, as set out at 42 above.

Administrative review generally takes place on the basis of the evidence which was before the original decision maker. That basic rule is clear from paragraph AR3.3.

The basic rule is subject to five exceptions. The first three, in paragraphs AR3.3(a)-(c), relate to situations in which the applicant is suspected of some sort of wrongdoing which has resulted in refusal under Part 9 of the Immigration Rules. Where the eligible decision was based wholly or partly on such a ground of refusal, additional evidence is admissible at Administrative Review, whether or not the eligible decision was incorrect. The making of an allegation of deception, for example, suffices without more to open the gateway. Whilst I heard no argument on the point, I suspect that the rationale behind that approach is an attempt to comply with the common law duty of fairness considered in Balajigari v SSHD [2019] EWCA Civ 673; [2019] 1 WLR 4647 and other cases. Where, for example, an allegation of deception is made against a person in the original decision, they have an unfettered right on Administrative Review to submit further evidence in response to the allegation.

It is the fourth and fifth exceptions to the general rule with which I am concerned in this case. To recap, those exceptions permit the consideration of evidence which was not before the decision maker “where the eligible decision was … (d) a decision not to request specified documents under paragraph 245AA of these Rules; or (e) a failure to follow the evidential flexibility policy published on gov.uk”.

Before I consider those provisions, I note that Ms Thelen was constrained to accept in her response to this ground that the reasoning in the Administrative Review decision bears no real resemblance to the relevant tests for the admission of further evidence in Appendix AR. The respondent gave three reasons for concluding that the new UKVI certificate was not eligible for consideration. She stated that the evidence would not be considered because it was not evidence that:

Ms Thelen was unable to provide any indication as to the origin of these three bullet points in the Administrative Review decision. She had been unable to find any policy or other document which stated the test in that way, which is evidently rather far removed from the Immigration Rules in any event. As with grounds two and three, therefore, Ms Thelen was not able to argue that the respondent’s decision was free from legal error. She submitted, instead, that the respondent could not have admitted the additional certificate at the Administrative Review stage if she had applied the law correctly.

As with ground three, however, that submission invites me into the forbidden territory of attempting to predict what the respondent would have made of the additional material if she had applied the law correctly. As with ground three, there is no witness statement in support of Ms Thelen’s submission, and there is no proper evidential basis provided by the Secretary of State to discharge the burden upon her of showing that it is highly likely that the outcome for the applicant would not have been substantially different if the respondent had not fallen into error in this way. That conclusion means that this ground is made out but I will nevertheless consider the detailed submissions which I heard on Appendix AR.