Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00229 (IAC)

Fecha: 29-Abr-2025

Mudiyanselage & Ors v SSHD

Mudiyanselage & Ors v SSHD

51.

The most significant authority on the Evidential Flexibility policy is Mudiyanselage & Ors v SSHD, to which there was extensive reference in the submissions before me. The only full judgment was given by Underhill LJ. Sir Brian Leveson P gave a very short judgment of his own. Sir Colin Rimer agreed.

52.

At [7], Underhill LJ recalled that “evidential flexibility” entered the lexicon of immigration jargon in 2009, when the Secretary of State issued a “process instruction” giving guidance to caseworkers about the circumstances in which they might show a degree of flexibility in the consideration of non-compliant applications under the Points Based System. As Underhill LJ went on to explain in the same paragraph, the respondent first published formal guidance on the subject in March 2013: Points-based system - Evidential Flexibility.

53.

In the meantime, the Secretary of State had also decided that the issue should be covered in the Immigration Rules, and paragraph 245AA was inserted on 6 September 2012. By the time the Court of Appeal came to consider the linked appeals in Mudiyanselage in early November 2017, the Evidential Flexibility policy was in its eighth iteration and paragraph 245AA had also been the subject of various amendments.

54.

Underhill LJ charted the various versions of paragraph 245AA and the policy at [12]-[22] and [23]-[35] of his judgment. In the course of that analysis, he observed that one of the key differences between the original and later versions of the policy was that the later versions contained a consistent element:

“that caseworkers should only ask for further information in a case falling under paragraph 245AA(b) where there is in fact reason to believe that the missing document or information exists”

55.

Then, at [36]-[51], Underhill LJ reviewed the authorities on the Points Based System and the Evidential Flexibility policy in its various guises. I need not repeat that exercise. What matters for present purposes is the conclusion reached about the eventual convergence of the policy and the Immigration Rules.

56.

At [52], Underhill LJ noted that the language of the policy had changed since Mandalia v SSHD [2015] UKSC 59; [2015] 1 WLR 4546 and SH (Pakistan) v SSHD [2016] EWCA Civ 426 had been decided. In the latter case, he explained, it was the specific terms of the policy as then in force which created “an obligation on the Secretary of State to exercise evidential flexibility in some circumstances which [paragraph 245AA] did not cover.” But, said Underhill LJ, the language which was decisive in those cases had changed, starting with version 2 of the guidance.

57.

At [53], Underhill LJ held that the later versions of the policy were “indistinguishable from those of paragraph 245AA itself”. At [54], he held that the correct construction of versions 4-7 of the policy was that there was “no longer a general policy to allow correction of minor errors: evidential flexibility will only apply in the particular cases provided for by paragraph 245AA.”

58.

Underhill LJ then held that the previous “mismatch” (between the Rule and the policy) no longer existed. He suspected that it was “always unintentional” and that it was simply the result of incompetence. He added that it was not the first time that such mistakes had occurred in the department: “the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.” At [55], Underhill LJ noted that versions 4-8 of the policy mirrored the requirements in paragraph 245AA.

59.

At [56], Underhill LJ summarised the effect of his conclusions in this way:

[56] As I have acknowledged, the fact that the scope of the EFP is now much more limited than originally increases the scope for harsh outcomes—that is, for cases where a PBS application fails because of a minor error or omission which could have been rectified if the applicant was notified of it but which does not fall into one of the specific categories identified at paragraph 245AA (b) . There may be very particular cases where such an outcome can be avoided by the application of the common law duty of fairness; but I agree with Beatson LJ in SH (Pakistan) that the effect of that duty is constrained by the context of the PBS as expounded in the various authorities reviewed above. The clear message of those authorities, including Mandalia , is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right.

60.

At [57]-[59], under the sub-heading “When is a specified document not a specified document?”, Underhill LJ identified and resolved a logical problem with the Secretary of State’s case. For reasons which will become apparent, it is also necessary to set out the first two paragraphs in full:

[57] I should deal at this stage with one particular issue about paragraph 245AA which arises in both Khan and Negbenebor . It is clear both from the introductory words of sub-paragraph (b) and from the first sentence of sub-paragraph (c) that paragraph 245AA is intended to operate only where the applicant has submitted a specified document: what sub-paragraph (b) does is to give the applicant the opportunity to correct errors of the defined kinds in a specified document which has been submitted. But that leads to a logical problem. Mr Malik—who principally argued this point for the Secretary of State—contended that a document which fails to comply with the various requirements contained in the relevant SD paragraph (or equivalent), or indeed with paragraph 39B(d) (originals not copies), cannot be a specified document at all, with the result that the conditions for the operation of paragraph 245AA would not arise.

[58] Logical as such a submission might appear if viewed in isolation, it plainly cannot be correct in the context of paragraph 245AA , since if it were accepted there would be no scope for the operation of sub-paragraphs (b) or (d). It is easy enough to resolve the conundrum as regards heads (i)–(iii) under sub-paragraph (b) (and heads (i) and (ii) under sub-paragraph (d)): the draftsman plainly intended that what was submitted as a specified document but which was in the wrong format, or was a copy instead of an original, would count as a specified document for the purpose of the paragraph—in this context “specified document” means “purported specified document”. It is not quite so easy as regards head (iv) under sub-paragraph (b) (and head (iii) under sub-paragraph (d))—that is, where the defect is that the document “does not contain all of the specified information”. Identifying exactly what that phrase is intended to cover needs some unpacking. It cannot have been intended that a document that simply showed none of the specified information at all would be covered by the rule. If, to take an extreme example by way of illustration, the requirement were that the document showed that an applicant had a PhD but what was submitted showed instead that he or she had only an MA, that could not sensibly be described as a case where the document “did not contain all of the required information”: it did not contain the essential information required and would simply be the wrong document. That is common sense, but it is reinforced by the phraseology of “not … all of the specified information”. It is accordingly, I believe, necessary to distinguish between, on the one hand, cases where the information which is missing is so wholesale as to affect the fundamental character of the document and, on the other, cases where it is secondary, so that it makes sense to say that the document is still of the kind specified albeit that it does not contain the particular information in question. Such a distinction seems to me to reflect the underlying policy behind the rule, as reflected in the reference in the introductory section of the Guidance to “minor errors”. [emphasis added]