What is ‘evidential flexibility’ and how can it help you?

In August 2009 the UK Border Agency introduced a policy of ‘evidential flexibility’, which allows caseworkers to contact visa or work permit applicants for missing documentation or to correct minor errors in an application. 

However, the National Audit Office’s report of 15th March 2011 noted a lack of consistency in the implementation of this policy within the UK and overseas.  The report also found that the Agency only allowed three working days for applicants to submit extra documents.

Whilst the policy has apparently been in use since August 2009, this has been kept extremely quiet by the UKBA and appears to be of negligible use, given that only three working days are allowed for extra documents to be submitted.

The government’s response to the National Audit Office’s review (http://www.official-documents.gov.uk/document/cm81/8129/8129.pdf at page 10), states that the Agency has changed its policy so that where minor omissions have been made and applicants have been asked to provide further information, they will be given seven days to provide the information requested.

Importantly for employers, it is stated that this evidential flexibility approach has also been introduced to sponsor licence applications.

The response further states that the Agency has introduced further measures to allow applicants applying in the UK to correct minor errors or omissions earlier in the application process.

It may be useful to quote this policy in appeals where an applicant is refused due to a mistake on the form or missing documents and where the caseworker did not contact the applicant to request clarification or further documents. It may be argued at the appeal that policy was not correctly followed and that the decision is therefore unfair and not in accordance with the law. If this argument was successful, the applicant should be given the opportunity to provide the required documents or information and the UKBA would be required to make a further decision on this basis.

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