[2025] UKUT 00229 (IAC)

The most striking feature of AR3.3(d) is the absence of any requirement that the decision not to request specified documents under paragraph 245AA was erroneous or incorrect. In that respect, the current provision is markedly different from its predecessor.

Appendix AR was replaced in its entirety in April 2024 by HC 590. Ms Thelen helpfully provided the current and previous versions shortly after the hearing. Much of the terminology was changed, and the gateways through which additional evidence might be submitted at Administrative Review were reconfigured. Under the pre-April 2024 scheme, however, there was a similar presumption that the reviewer would not consider evidence which was not before the original decision maker: previous AR2.4 referred. As with the current scheme, that general rule was subject to certain exceptions. The first exception was where additional evidence was submitted to show that a caseworking error as defined in AR2.11(a), (b) or (c) had been made. The caseworking error defined at AR2.11(c) was:

The change effected to this gateway is stark. Whereas the admission of additional evidence on Administrative Review used to depend on the establishment of incorrectness in the original decision maker’s approach to paragraph 245AA, there is no such stipulation in the current version. Given the way in which the gateway was previously framed, the only sensible construction is that no such error is required, and that 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.

I cannot presently understand why the Secretary of State would have decided to make such a change, and there is no explanation in the Explanatory Memorandum to HC590, but that is the ordinary and natural meaning of the words used. The obvious consequence is that applicants under the “simple, predictable and expeditious” PBS will have a second bite at the cherry in any case in which the respondent has decided not to request specified documents under paragraph 245AA of the Immigration Rules.

The respondent took no such decision in this case, however. There is no reference to paragraph 245AA in the ECO’s decision. Insofar as she considered whether to give the applicant a further opportunity to submit the valid digital reference number required by paragraph EL6.1 of the Rules, any such consideration was with reference to the “evidential flexibility guidance”. That was – and could only have been – a reference to the Evidential Flexibility policy, and not to paragraph 245AA of the Immigration Rules.

It is not surprising that the respondent took no decisionnot to request specified documents under paragraph 245AA. As Ms Thelen submitted, this was not a case in which that discretion was available to the respondent. For that paragraph to apply, an applicant must have “submitted the specified documents”. This applicant had not done so. He had submitted a document (the IELTS certificate) which he was positively advised not to submit: [77] above refers. He had failed to submit the specified document (the UKVI reference number) which he was required to submit.

Mr Malik nevertheless submitted, with reference to what Underhill LJ said at [57]-[58] of Mudiyanselage, that the IELTS certificate was the specified document which the applicant was required to submit. I disagree. The IELTS certificate was not a specified document. The UKVI reference number was the document specified in the Rules. The information which was missing was so wholesale as to affect the fundamental character of the document. It was simply the wrong document which was submitted.

It was in those circumstances that the respondent did not even consider whether to request further documents under paragraph 245AA. She was unable to do so in circumstances in which the condition precedent (the submission of the specified documents) was not satisfied.

There having been no decision not to request specified documents under paragraph 245AA, the gateway in paragraph AR3.3(d) was not open, and I reject the applicant’s arguments to the contrary.