[2025] UKUT 00229 (IAC)

I turn finally to AR3.3(e). The language used in this provision is rather clearer, referring as it does to a “failure” to follow the Evidential Flexibility policy. The use of that term necessarily requires that there was an error as to the application of the policy in the original decision. It is to be contrasted with the choice of words in the preceding provision, which applies where there has been any decision not to request specified documents under paragraph 245AA. A “failure” is not merely a decision, and Mr Malik’s suggested construction (“a decision not to request documents under the Evidential Flexibility policy”) fails to respect that distinction. As Ms Thelen submitted, the natural and ordinary meaning of the provision is that the gateway in AR3.3(e) is open, and additional evidence may be submitted on Administrative Review, when there has been a substantive error in refusing to follow the Evidential Flexibility policy. Paragraph AR3.3(e) therefore 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.

I have already concluded in my resolution of ground two that there was in this case a substantive error in the respondent’s refusal to follow the Evidential Flexibility policy. She failed to direct herself according to the wide terms of the policy, which were prima facie applicable to the missing UKVI reference number.

I therefore conclude that the gateway in AR3.3(e) was open for the admission of further evidence on Admin Review, and that ground one is also made out.