[2025] UKUT 00229 (IAC)

R (on the application of Ganeshamoorthy) v Secretary of State for the Home Department (Evidential Flexibility; Administrative Review Gateways)

Field House,

Breams Buildings

London, EC4A 1WR

Promulgated: 30 June 2025

Before:

UPPER TRIBUNAL JUDGE BLUNDELL

Between:

THE KING

on the application of

GAJANAN GANESHAMOORTHY

Applicant

- and -

THE SECRETARY OF STATE

FOR THE HOME DEPARTMENT

Respondent

Zane Malik KC

(instructed by KT Solicitors), for the applicant

Jennifer Thelen

(instructed by the Government Legal Department) for the respondent

The Evidential Flexibility Policy, version 11 (January 2021)

1. Version 11 of the Secretary of State’s Evidential Flexibility policy (“EFP”) applies to all routes under the Immigration Rules except Appendix FM and protection routes. It is no longer applicable only to cases under the Points-Based System.

2. Paragraph 245AA of the Immigration Rules continues to apply only to Points Based System applications.

3. Version 11 of the EFP and paragraph 245AA are no longer coterminous. The EFP applies to more types of applications. It contains no express reference to paragraph 245AA. The circumstances in which additional documents or information might be requested from an applicant are framed more widely in version 11 of the EFP than in paragraph 245AA of the Rules or in the previous versions of the policy considered in Mudiyanselage & Ors v SSHD [2018] EWCA Civ 65; [2018] Imm AR 846.

4. Unlike paragraph 245AA and version 8 of the EFP, the current version applies to documents which were omitted from an application.

5. Unlike version 8 of the EFP, the current version of the guidance does not require a caseworker to have reason to believe that missing information exists; a caseworker must also consider whether they believe that an applicant “could obtain” the missing document or information.

Admission of Additional Evidence on Administrative Review

6. Administrative review generally takes place on the basis of the evidence which was before the original decision maker. That basic rule is subject to five exceptions.

7. 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.

8. Paragraph AR 3.3(d) permits the submission of additional evidence on Administrative Review where the original decision was one which included a decision not to request specified documents under paragraph 245AA of the Immigration Rules. An applicant is not additionally required to demonstrate that the decision not to request documents was erroneous or incorrect.

9. Paragraph AR3.3(e) permits the submission of additional evidence on Administrative Review where there was a substantive error in the respondent’s decision not to follow the Evidential Flexibility policy.

J U D G M E N T