Gajanan Ganeshamoorthy, R (on the application of) v The Secretary of State for the Home Department (Evidential Flexibility; Administrative Review Gateways)

Version 11 of the Evidential Flexibility policy applies across the Immigration Rules, except for Appendix FM and protection routes. It is wider than paragraph 245AA, applies to omitted or incorrect supporting evidence, and requires consideration of whether the applicant could obtain the missing evidence. A decision maker must apply the policy according to its language and should normally offer an opportunity to provide further evidence where its conditions are met.

Under Appendix AR, additional evidence may be admitted where the original decision included a substantive failure to follow the policy. Gateway AR3.3(d) does not require an error, but applies only where paragraph 245AA was actually engaged. A court assessing relief under section 31(2A) must examine the impact of the error on the decision-making process, rather than predict the decision that the public body would have made.

The applicant sought entry clearance under Appendix Skilled Worker. He supplied a non-UKVI IELTS certificate showing the required CEFR level, but not the UKVI reference number required by Appendix English Language. The Entry Clearance Officer refused the application and declined to apply evidential flexibility.

On Administrative Review, the applicant supplied a UKVI-compliant certificate. The respondent refused to consider it and maintained the refusal. The applicant brought judicial review proceedings, challenging the treatment of the Evidential Flexibility policy, the refusal to admit further evidence under Appendix AR, and the failure to consider a grant outside the Rules.

1. Ground two allowed. Version 11 of the Evidential Flexibility policy applies beyond the Points-Based System and is not coterminous with paragraph 245AA. It covers an error with, or omission of, supporting evidence and requires consideration of whether the applicant has or could obtain the missing evidence. The policy is not limited to minor errors or to documents which the applicant already possesses.
2. The applicant’s non-UKVI certificate showed that he had achieved the required CEFR level through a recognised testing body. That gave the Entry Clearance Officer reason to believe that he could obtain a UKVI-compliant certificate. The refusal reason, namely that the evidence did not meet the Rules and therefore evidential flexibility need not be applied, was contrary to the policy.
3. Ground three allowed. A specific request for leave outside the Rules required the respondent to consider that request and address the material relied upon. Relief could not be refused under section 31(2A) of the Senior Courts Act 1981 by predicting what the respondent would have decided. The statutory test focuses on the impact of the error on the decision-making process. In the absence of evidence showing that the outcome would highly likely have been substantially the same, the threshold was not met.
4. Ground one allowed. The drafting error in AR3.3(d) and (e) was corrected by reading those provisions as applying where the eligible decision included a decision not to request specified documents or a failure to follow the policy. Gateway (d) applies where paragraph 245AA was engaged, without any additional requirement to show that the decision was erroneous. It was unavailable here because the applicant had not submitted the specified document. Gateway (e) applies where there was a substantive failure to follow the Evidential Flexibility policy, and it was available on the facts.
5. All three grounds were made out. The terms of the order were to be agreed.

The judgment records that permission for judicial review was granted on the papers by Upper Tribunal Judge Hirst. The Upper Tribunal determined the substantive claim and found all three grounds made out.