Anyone who has spent time making an immigration application under the UK points based system or the family rules will be aware of the labyrinthine guidance produced by the Home Office. Indeed, working out which documents to send with an application probably takes more time than filling out the forms! It is hardly surprising that applications are refused because the evidence submitted is incomplete; but what many people don’t know is that in many cases, the Home Office is duty bound to contact the applicant to see whether the correct evidence is available.
In the recent case of Rodriguez, the Upper Tribunal emphatically determined that the Home Office must revert to applicants to ask for missing mandatory evidence and give the applicant the chance to submit it. Indeed, recent Home Office policy on this point goes back to a 2011 policy letter on evidential flexibility, although it seems that in practice this letter was largely ignored by Home Office decision making staff.
For those who are now overstayers, having had applications under the points based system fail due to missing evidence, this new case law may well provide some comfort. Such applicants are not permitted, under 85A of the Nationality Immigration and Asylum Act 2002, to provide missing evidence at appeal stage; however they now have a possible ground on which to judicially review the decision to refuse their application.
At present, one of the biggest groups of applicants who are seeing refused applications are those applying for Tier 1 (Entrepreneur) permission. The documentary guidance in that category is complicated verging on torturous, so it is little wonder that applicants do not get the documents right first time. We hope to see the Home Office now applying the evidential flexibility doctrine with more regularity and reverting to those applicants in order to obtain the missing evidence before issuing a refusal.
If you have made an application to the Home Office and it has been rejected on the basis that a piece of evidence was missing and would like further advice; please contact us on 020 7001 2121 to discuss your options.