Evidential flexibility
Produced in partnership with Sarah Pinder of Goldsmith Chambers
Evidential flexibility

The following Immigration guidance note Produced in partnership with Sarah Pinder of Goldsmith Chambers provides comprehensive and up to date legal information covering:

  • Evidential flexibility
  • What is evidential flexibility?
  • Development of the evidential flexibility policy and provisions
  • What types of application are currently affected by evidential flexibility?
  • How does evidential flexibility operate in entry clearance applications?
  • How does evidential flexibility operate in applications for leave to remain?

This Practice Note outlines the evolution and scope of evidential flexibility policies in the consideration of UK immigration applications. It also covers how evidential flexibility operates when challenging refusals.

What is evidential flexibility?

'Evidential flexibility' is a term that originally arose as the name of an internal policy of the former UK Border Agency (UKBA) in relation to Points-Based System (PBS) applications. Evidential flexibility provisions are now primarily found in the Immigration Rules themselves.

Evidential flexibility allows Home Office decision makers to request additional information and/or documents from an applicant in certain circumstances and/or to approve an application in limited circumstances where documentation has not been submitted. However, evidential flexibility provisions will not necessarily assist an applicant who has been unable to obtain a document or who omitted to submit one, unless specific circumstances are met.

Development of the evidential flexibility policy and provisions

The nature and scope of the evidential flexibility policy for PBS leave to remain applications were first considered in detail by the Upper Tribunal in the case of Rodriguez (Flexibility Policy); Rodriguez v Secretary of State for the Home Department [2013] UKUT 42 (IAC) (not reported by LexisNexis®). In that case, the applicant met the maintenance requirement for a Tier 4 (General) application, however failed to submit sufficient evidence to demonstrate this. The Evidential Flexibility policy