[2025] UKUT 00229 (IAC)

The fact that the policy now applies outside the Points Based System must mean that much of the reasoning which informed the conclusion in Mudiyanselage no longer applies. The consideration of the policy in that case, and in the others cited by Underhill LJ, was informed by the fact that it applied specifically to applications under the PBS, which “puts a premium on predictability and certainty at the expense of discretion” and is intended to operate in a way which is “simple, predictable and expeditious”: Alam & Ors v SSHD [2012] EWCA Civ 960; [2012] Imm AR 974, Nyasulu v SSHD [2016] EWCA Civ 1145 and R (Junied) v SSHD [2019] EWCA Civ 2293; [2020] 4 WLR 18.

I am not considering a policy which applies in that strict context, but to a wide variety of applications in different categories under the Rules. Version 11 of the policy applies equally to a visiting organ donor who omits medical practitioner confirmation of the date of the planned organ transplant (Appendix V8.3 refers) or a VIP Delegate who omits a Note Verbale which includes his details (Appendix DEL 2.2 and 4 refer) as it does to a skilled worker who omits a valid digital reference number from an approved provider showing they have passed an approved English language test. There is no attempt in the policy to apply different tests or standards in these two contexts; it adopts a ‘one size fits all’ approach to evidential flexibility.

For these reasons, I reach the following conclusions on the current version of the Evidential Flexibility policy:

With those undoubtedly overlong observations on the policy in mind, I turn to address ground one. In considering that ground, and the case as a whole, it is important to emphasise one point about the requirements which the applicant was required to meet and the evidence which he submitted to the ECO. The Immigration Rules and the guidance given to the applicant via a hyperlink in the application form (as provided, at my request, after the hearing) made it clear that the English language requirement is met by the submission of the UKVI reference number, and not by the submission of a certificate. The guidance, entitled Prove your English language with a secure English language test, states in terms that an applicant need not submit any documentary evidence as part of their application. In providing the IELTS certificate with his application, therefore, the applicant failed to meet the requirement in paragraph EL 6.1 of the Rules, and failed to provide a specified document which he was asked to provide. The question is whether the Evidential Flexibility policy applied, so as to require the ECO to offer him an opportunity to remedy that defect.

I have set out at [8] above the full reasons given by the ECO for deciding not to “exercise” Evidential Flexibility. It is difficult to see how the reasons given by the ECO relate in any way to the current version of the policy. She stated, correctly, that the policy “states the burden of proof is [on] the applicant to evidence that they meet the requirements of the Rules” but the reason given for not applying the policy was “that evidential flexibility does not need to be exercised if the submitted evidence does not meet the requirements.” As we have seen, that is simply not what the policy says. The next sentence in the ECO’s decision does not improve matters:

The reasoning appears to be simply that because the evidence does not meet the requirements of the rules, Evidential Flexibility will not be applied. To approach the matter in that way was flatly at odds with the policy. As Mr Malik submitted, if it was correct to refuse to exercise Evidential Flexibility in any case in which the evidence submitted did not meet the requirements of the Immigration Rules, the policy would be rendered otiose. There can be no doubt that the respondent erred in this respect.

It was for that reason that Ms Thelen sought to submit that the Evidential Flexibility policy simply did not apply to the circumstances of this case, in which the appellant was required by the Rules to provide a valid digital reference number and failed to do so. Had version 8 of the policy continued to apply, I would have accepted that submission. Had the law and the policy remained as it was in Mudiyanselage, the applicant would have been unable to mount any argument that evidential flexibility should have been applied.

As Mr Malik submitted, however, matters are entirely different under the current version of the policy. Ms Thelen submitted in her skeleton argument, with reference to Mudiyanselage, that the policy could not conceivably have come to the appellant’s aid because he had taken the wrong test and there was no reason for the ECO to believe that the correct UKVI test certificate “existed”. That is correct, and it would have been dispositive of this ground if that “consistent element” continued to appear in the policy. As I have endeavoured to explain, however, the respondent’s staff must now consider whether evidence is missing which they believe that the applicant either has or could obtain.

There was evidently no reason to believe that the applicant had a valid UKVI reference number which met the requirements of paragraph EL6.1. He had submitted a basic IELTS certificate without a UKVI reference number and he had made no reference in any part of his application to having such a number. Mr Malik did not attempt to submit otherwise; he focused his submissions on the question of whether there was reason to believe that the applicant could obtain a UKVI reference number which showed the requisite level of proficiency in the English language.

Despite Ms Thelen’s submissions to the contrary, the answer to that question is in my judgment quite plain: of course there was. The applicant had taken an IELTS test and had achieved a CEFR score at the level required by the Immigration Rules. IELTS is a recognised examiner and no doubt has ever, to my knowledge, been cast on the reliability of its assessments. The certificate which the applicant was awarded on 22 March 2024 bears his name and his photograph and a stamp which identified the IELTS test centre in Sri Lanka. There has never been any suggestion that the test was not taken or that the results were not genuinely reflective of the applicant being able to communicate in English to the level B1 of the CEFR.

The question posed by the Evidential Flexibility Policy was whether the applicant could obtain a valid UKVI reference number to show his proficiency at level B1 of the CEFR. It was not whether he could provide it. The choice of verb must have been intentional, and is clearly of significance. The words “or could obtain” indicate that the respondent is prepared to countenance a situation in which a person who does not already have a document is requested to obtain it. That might involve a skilled worker such as the applicant taking a further English test, or it might involve an organ donor approaching an NHS Consultant for confirmation of when and where a planned transplant is to take place (V8.3 refers, as above). The fact that the person has not already provided that evidence, and the fact that they need to take additional steps to obtain it, is not sufficient to disapply the policy.

Ms Thelen made reference in her oral submissions to timescales. She drew attention to a later part of the current policy, which provides that “you must ask the applicant to provide the requested information within 10 workings days.” As Mr Malik observed, however, the policy does not state that an ECO should only request additional documents when they have reason to believe that the applicant could obtain those documents within 10 days. The part of the policy to which Ms Thelen made reference is in the form of a process instruction. It is not expressed as an additional constraint on the decision maker and the usual ten day period is in any event subject to extension by agreement. It is therefore no answer to this ground to observe, as Ms Thelen did, that the applicant only managed to obtain the UKVI compliant certificate on 21 May 2024, a period of 22 days after the ECO’s decision.

Ms Thelen invited me to conclude that the applicant’s circumstances fell within the final paragraph of the guidance, which concerns situations in which evidence is missing or inadequate. The instruction to caseworkers in those situations is that they need not offer the applicant an opportunity “to prove that they meet the requirement in a different way.” I was originally concerned that there might be a tension between this paragraph (and its two bullet pointed examples) and the preceding parts which refer to missing documents.

On further reflection, however, I consider the section to make sense when it is considered as a whole. The second example given in the guidance is of a person who says they are relying on funds in a bank account but the evidence does not show the required level of funds. The guidance states that there is no need to check whether the person has another bank account that might meet the requirements. Properly understood, however, I consider this to add nothing to the requirement that there must be reason to believe that the applicant either has further evidence or could obtain it. In the example given, there is no reason to believe that the hypothetical applicant has another bank account which might meet the requirements of the Rules. In the instant case, however, the submission of a certificate at the correct CEFR level, from a renowned examining body, would have given any rational ECO reason to believe that he could obtain a UKVI compliant certificate at the same level. The ECO would not in those circumstances be providing a further opportunity to meet the Rules in a different way; they would be providing a further opportunity to obtain evidence to show that the Rules were met in the same way.

There must obviously be a reason for a decision maker to believe that an applicant could obtain the missing evidence. Here, the reason was provided by the fact that the applicant had already obtained the requisite level in the CEFR and had provided evidence of that. Had the initial certificate shown that he had scored CEFR level A1, there would have been no reason to contact him to suggest that he should provide a UKVI compliant certificate. To return to the example of the visiting organ donor without the necessary letter from an NHS consultant, there would be no need to contact him if there was no reason to believe that he could obtain that document. But if he had provided a letter from a specialist registrar within the NHS, and all that was needed was confirmation of his opinion by a more senior doctor, there would be a reason to believe that the document could be obtained. Whilst the policy is therefore rather wider than the Rule and its previous iterations, it is still subject to that common-sense constraint.

For all of these reasons, I am satisfied that the respondent erred in her approach to the Evidential Flexibility policy, version 11, and I find that ground two is made out.