[2025] UKUT 00229 (IAC)

In his written and oral submissions, Mr Malik made the following submissions on the grounds.

The first ground was not about paragraph 245AA of the Immigration Rules or about the Evidential Flexibility Policy; it was about submitting new evidence with an application for Administrative Review. The proper approach to the construction of the Immigration Rules was as set out in R (Wang) v SSHD [2023] UKSC 21; [2023] 1 WLR 2125 and Mahad v ECO [2009] UKSC 16; [2010] 1 WLR 48. It was also relevant to recall what Lord Brown had said in Mahad about the Secretary of State using express language to exclude third party support; the tribunal was invited to deploy the same tool in this case.

There could be no doubt that Appendix AR applied to applications which had been made under Appendix SW. Paragraph AR3.1 contained the test which the decision maker was to apply. The test was whether the decision was incorrect for one of the reasons given; not whether the decision was unreasonable in a public law sense. The difficulty in the instant case was that the decision maker had misunderstood the gateway at AR3.3. The approach in the AR decision bore little if any resemblance to the approach required by the Rules. That error was material because the original decision was of the kind specified in AR3.3(d) or (e).

The Detailed Grounds of Defence were wrong to submit that the ECO’s decision was not “a decision not to request specified documents under paragraph 245AA of these rules”. There had evidently been such a decision in this case, and paragraph AR3.3(d) applied. Paragraph AR3.3(e) was badly expressed but it also applied here, because the respondent had failed to follow the published Evidential Flexibility policy.

In relation to ground two, Mr Malik submitted that it was trite that the respondent was obliged to follow her published policies, and that she had failed to follow the Evidential Flexibility policy in this case. It was for the Tribunal to decide the meaning of a published policy. There had been a clear change in that policy since the leading case of Mudiyanselage & Ors v SSHD [2018] EWCA Civ 65; [2018] 4 WLR 55 was decided, although what was said about the definition of a specified document must still apply. The decision maker’s approach in the instant case was flatly at odds with what was said by Underhill LJ at [58]; the fact that the UKVI reference number was missing from the IELTS certificate evidently did not “affect the fundamental character of the document.”

The current version of the policy replaced all previous instructions and contained what Mr Malik described as a “remarkable and conspicuous development”, in that the policy now applied where a person had “omitted supporting evidence”. In contrast to the previous versions of the policy, it did not merely apply if the decision maker believed the applicant to have omitted supporting evidence which they had; it also applied where they believed that the applicant could obtain that evidence. The respondent had clearly erred in failing to apply the policy. Junied v SSHD [2019] EWCA Civ 2293; [2020] 4 WLR 18, on which Ms Thelen was to rely, was of no assistance, since that was not a case which concerned Evidential Flexibility.

As for ground three, the respondent had erred in failing to consider whether to exercise her discretion outside the Rules. There had been a clear and particularised request for her to do so and she was obliged to turn her mind to that request: R (Behary & Anor) v SSHD [2016] EWCA Civ 702; [2016] 4 WLR 136, at [39]. She had failed to do so in either decision and this was the paradigm case for a grant of leave outside the Rules. No submission under s31(2A) of the Senior Courts Act 1981 had been made by the Secretary of State thus far.

Ms Thelen developed her Detailed Grounds of Defence and skeleton argument with reference to three key points. She submitted that paragraph 245AA did not apply; that the Evidential Flexibility policy did not apply; and that the applicant was not entitled to submit additional evidence through the limited gateway provided by paragraph AR3.3.

In relation to paragraph 245AA, Ms Thelen submitted that this was not a case in which an inadequate or deficient specified document had been submitted. The IELTS certificate which was submitted was simply the wrong document; it did not contain the valid digital reference required by paragraph EL6.1. The importance of that reference was clear and obvious. It enabled the decision maker to verify the test online. It was apparent from the documents that the UKVI test was different from the general test. No evidence existed that the applicant had passed the UKVI version of the test at the date of the original decision because he had not even taken that test. Ms Thelen submitted that there was a “set process which had not been followed” in this case. The applicant did not seek to remedy a minor defect in his application. That was the intention of paragraph 245AA.

The Evidential Flexibility policy had no application in a case such as this, in which the applicant had simply submitted the wrong document. The applicant was wrong to suggest that there had been a sea change in the policy. The policy still applied to documents which a person was thought to have, or which they could obtain. There was no reason to think that the applicant could have obtained the IELTS UKVI certificate as he had not booked or taken the test. The policy was clear in relation to evidence which was simply missing and the examples which were given were instructive. The policy did not require the ECO to engage in a “theoretical exercise” as to whether documents could be obtained within a reasonable space of time. An applicant was generally required to submit new evidence within ten days, whereas it had taken the applicant more than three weeks to obtain the UKVI certificate.

Ms Thelen submitted that the important points made about certainty and predictability in Mudiyanselage continued to apply. The example given by Underhill LJ about a person who had submitted an MA certificate when a PhD was required was of assistance. Also of assistance were dicta at [70], [76] and [80].

In sum, this was not a case in which AR3.3 could apply. Paragraph 245AA was of no application. Whilst AR3.3(e) was poorly expressed, it was equally clear that this was not a case to which the policy applied. There was no error in the decision not to request additional evidence or to refuse to admit further evidence at the Administrative Review. The way in which that decision was expressed was not precise but the fact was that the gateway did not apply in a “wrong document” case such as this.

In relation to the third ground, it was accepted that the respondent had erred in failing to consider the exercise of her discretion outside the Rules but there was no proper basis for a grant of leave to remain outside the Rules. The policy in the Rules was clear and had a logical basis and there was no reason to depart from it. Relief should be refused under s31(2A) SCA 1981 as a result.

In reply, Mr Malik submitted that Ms Thelen’s submissions represented no answer to the claim. On the current version of the Evidential Flexibility policy, it was immaterial that the applicant had submitted the wrong document, just as it was immaterial that the error was not a minor one or that the correct document did not exist. That was apparent from the plain wording of the policy itself. The Secretary of State’s submissions amounted to an attempt to rewrite the policy, and to re-introduce aspects of it which had been removed.

The applicant’s error in submitting the basic IELTS test rather than the UKVI version was not so wholesale as to affect the fundamental character of the document. The applicant was required to achieve level B1 CEFR and he had done so in the first test, just as he had in the second. All that was missing from the first was the UKVI reference number. Whilst the applicant had legal advice at that time, it was also relevant to note that the application form did not specifically ask for the UKVI reference number.

Mr Malik submitted that the respondent was wrong to suggest in response to the first ground that there had been no decision under paragraph 245AA. The respondent had self-evidently decided not to request specified documents and AR3.3(d) was engaged. It was accepted by Ms Thelen that AR3.3(e) of the Immigration Rules was poorly drafted. On its proper construction, it must mean “a decision not to request documents under the Evidential Flexibility policy”. Such a construction would be coherent and consistent with AR3.3(d).

As for the second ground, the differences between version 8 of the policy – as considered in Mudiyanselage – and the current version were stark. The current version provided for the submission of specified documents which had been omitted and instructed caseworkers that they must not refuse if a specified document had not been provided. The approach adopted by the respondent in this case would defeat the purpose of the policy as currently framed.

As for ground three, it was plain that the respondent was under an obligation to consider the case outside the Rules. Applying the correct approach to s31(2A) SCA 1981, the tribunal could not be satisfied that it was highly likely that the outcome for the applicant would not have been substantially different if the discretion had been considered. The tribunal was not the primary decision maker. There was no witness statement from the respondent. The respondent’s submission did not deal with the critical point, which was that the applicant’s English language proficiency was demonstrably at the required level from the outset.

At the end of the submissions, I reserved judgment and considered three points with counsel. Firstly, the authorities bundle did not contain the Immigration Rules which applied to this applicant’s case. Ms Thelen confirmed that the relevant Rules could be provided swiftly and in agreed form. I asked whether I was to be informed about the difference, if any, between the IELTS test and its UKVI version. Thirdly, I asked whether further clarification could be provided about the guidance provided to an applicant about the nature of the English language test they were required to take. Counsel agreed to consider those questions and to provide a note.

Shortly after the hearing, I was provided with an agreed version of the relevant Immigration Rules and a short, agreed note setting out additional submissions on the third question. Counsel confirmed that they did not propose to make any additional submissions in relation to the second point, which they invited me to consider on the evidence before me.

I am grateful to Mr Malik and Ms Thelen for their assistance.