The Upper Tribunal (UT) has delivered a significant judgement which clarifies the application of the evidential flexibility policy (EFP) and the administrative review process within UK immigration law.
Background:
The applicant, a Sri Lankan national, applied for entry clearance as a skilled worker in March 2024 to work as a retail manager. He was sponsored by a limited company, which had provided a Certificate of Sponsorship (CoS).
The application included an IELTS test report dated 22 March 2024, so as to meet the English language requirement at the B1 level. The application was refused on 29 April 2024 for failure to meet the English language requirement, as the certificate provided was not an approved language test under Appendix English language (non-UK Visas and Immigration (UKVI) version). The Entry Clearance Officer (ECO) declined to exercise the EFP to request further evidence.
The applicant sought administrative review on 23 May 2024, submitting a new compliant IELTS certificate dated 9 May 2024, arguing that the ECO had erred in not applying the EFP. He highlighted that new, stricter salary requirements that were introduced on April 4, 2024, would significantly disadvantage him if he had to reapply.
The administrative review was refused on 13 June 2024, finding that the ECO was reasonable in not applying evidential flexibility and that new evidence, which was not available at the time of the original decision, could not be considered unless it met specific, narrow criteria in Appendix AR, paragraphs AR3.3(d) and (e), which the new certificate did not. The applicant issued a claim for judicial review.
Decision:
The appeal succeeded. Judge Blundell began with a critical comparison between the current Version 11 of the EFP (published January 2021) and previous versions, particularly version 8, as well as paragraph 245AA of the Immigration Rules. Based on this analysis, the Tribunal found that the ECO's refusal to grant the visa, specifically regarding the English language requirement and the application of evidential flexibility, was flawed because it rested on an outdated understanding of the Secretary of State's EFP. The current Version 11 of the EFP, published in January 2021, broadens the circumstances under which caseworkers should seek further information, mandating a consideration of whether the applicant "could obtain" the necessary evidence, constituting a significant shift from previous versions. The Judge determined that, given the applicant had already passed an IELTS test at the required level from a recognised provider, there was clear reason to believe he "could obtain" a UKVI-compliant certificate.
The Tribunal rejected the attempt to deny relief under Section 31(2A) of the Senior Courts Act 1981, which permits refusing relief if the outcome would very likely have been the same, as the respondent failed to provide any evidence to support this claim and the Court could not speculate on the executive's decision-making process.
Implications:
This is the first reported authority on version 11 of the Secretary of State’s EFP since its publication. The ruling clarifies that the current Version 11 of the EFP is much wider in scope than previously understood, extending beyond a mere ‘points-based application system,’ as it now applies to nearly all immigration routes. It imposes a stronger obligation on caseworkers to seek missing or incorrect evidence if they believe the applicant "could obtain" it, rather than simply "has" it. This means that applicants might get more opportunities to rectify errors in their applications without immediate refusal, especially if they have some evidence suggesting they meet a given requirement, even if it is not in the exact specified format.
Caseworkers will need to fundamentally reassess how they apply the EFP. The old, stricter interpretations (tied to PBS and "minor errors") are explicitly rejected. This could lead to a significant increase in requests for further information, rather than outright refusals, and a potential reduction in judicial review challenges based on this ground, provided the policy is applied correctly.
