[2025] UKUT 00229 (IAC)

The most obvious feature of AR3.3(d) and (e) is that they are poorly expressed, as Mr Malik submitted and as Ms Thelen was constrained to accept.

An “eligible decision” is a decision which was made on a person’s application for entry clearance (etc). Such a decision might contain a decision not to request specified documents under paragraph 245AA or it might involve a decision not to request additional evidence under the published evidential flexibility policy, but the decision cannot be a decision not to request specified documents or a failure to follow the evidential flexibility policy. Those are only aspects of the eligible decision. It is apparent that something has gone awry with the drafting of these provisions.

That is a regrettable state of affairs. The Court of Appeal grappled with a similar problem in Hoque v SSHD [2020] EWCA Civ 1357; [2020] 4 WLR 154, in which a sentence in paragraph 276B of the Rules had been inserted in the wrong place. Underhill LJ recently reviewed that and other authorities in Mustaj v SSHD [2025] EWCA Civ 663, noting that the court had for some time been able to correct obvious drafting errors in statute, as explained by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, at p592. Underhill LJ suggested that the law provided for at least an equivalent latitude to correct obvious errors in the Immigration Rules.

Whilst I respectfully agree, the judicial correction of drafting errors in the Immigration Rules brings with it an obvious danger. The Immigration Rules should be expressed in a way which is clear to applicants and their advisers and the civil servants tasked with their application. Frequently, they are not. Underhill LJ noted at [4] of Mudiyanselage that the Rules were drafted “in a rebarbative system which makes navigation far from straightforward”. Matters have become considerably worse since then, and the Immigration Rules are now painfully difficult to navigate (and to understand) as a result of the replacement of sequentially numbered provisions with a myriad of appendices which appear in no logical order and which contain paragraphs which are identified by a complex system of letters and numbers, often with multiple decimal points.

It is to my mind undesirable that a further layer of complexity is added atop this spider’s web by judges seeking to correct the provisions in question. If, as seems likely, no action is taken to correct the drafting errors which lead to those corrections, those who make and decide applications under the Immigration Rules must locate and understand both the Rules and the judicial decisions in which they have been corrected, leading to obvious potential for error. It would be far better if the Immigration Rules made sense in the first place.

Be that as it may, I was invited by Mr Malik and Ms Thelen to construe paragraph AR3.3 in accordance with the principles I have set out above, and I will do so.

The correction of the obvious drafting error to which I have referred above is a simple matter. The eligible decision cannot be a decision not to request specified documents or a failure to follow the evidential flexibility policy. What must have been intended is that the eligible decision was one which included a decision not to request specified documents or a failure to follow the evidential flexibility policy. The insertion of those three words at the start of paragraphs AR3.3(d) and (e) merely ensures that they make sense and are consistent with the overall scheme of the appendix.

Paragraphs AR3.3(d) and (e) of Appendix AR of the Immigration Rules therefore permit a reviewer to consider evidence which is submitted with an application for Administrative Review and which was not before the original decision maker where the eligible decision was one which included a decision not to request specified documents under paragraph 245AA of the Rules, or one which included a failure to follow the EFP published on gov.uk.

That obvious problem having been corrected, the proper construction of AR3.3(d) and (e) is more problematic and they must be considered separately.