Court of Appeal opens the doors to harsh decisions by limiting evidential flexibility policy’s scope

The evidential flexibility policy for applications made under the points-based system which is set out in paragraph 245AA of the Immigration Rules.

Mudiyanselage v The Secretary of State for the Home Department [2018] EWCA Civ 65

Mudiyanselage is a complex decision. There were six appellants who had been refused various Points Based System visas because of omissions or issues with the documentation supplied. Only one was successful in this appeal.

Their broad arguments were straightforward: the policy of “evidential flexibility” should have been applied to their cases (excepting the final appellant, Kokab, whose case against the Entry Clearance Officer was somewhat different).

A harsh decision by the Court of Appeal, holding that evidential flexibility policy’s scope is extremely limited. Court expressly accepts that this would to harsh decisions, paragraph: occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process.

LJ Underhill then goes through the list of Appellants and dismisses all their claims (but for one which was withdrawn by consent), citing sympathy, however maintaining that its either the Applicants or their lawyers at fault. Ironic that in the same judgement the following is found at paragraph 54: the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.

However, a very thorough decision, containing nearly all the evidential flexibility legislation, guidance and case law.

adivis

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