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End of evidential flexibility in PBS applications, Rodriguez in the Court of Appeal

The appeal in the case of Rodriguez, initially decided by the Upper tribunal in Rodriguez v SSHD [2013] UKUT 00042 (IAC) and then on appeal by the Secretary of State by the Court of Appeal, SSHD v Rodriguez [2014] EWCA Civ 2, concerned the effect of the so called “Evidential Flexibility Policy” in the applications for leave to remain under the Points Based System.

The Appellant was a Tier 4 migrant who applied for extension of leave to remain but failed to demonstrate the required level of maintenance during the 28 day period preceding the application as her funds went below the required minimum for a number of days. Given that the funds were available to the appellant, but were held in a separate bank account the evidence of which was not included with the application form, the question for the court was whether the Home Office had a duty to flag up the deficiency to the applicant and give her an opportunity to adduce further evidence before making a substantive decision on her application.

This is, and was, an important question for all PBS migrants, as no additional evidence can be considered on appeal if it had not been before the decision maker at the first instance.

The Court of Appeal overturned the much welcome decision of the Upper Tribunal and ruled that Evidential Flexibility Policy did not put the Secretary of State under any obligation to make any additional enquiries. Those who failed to support their applications with the required documentation had no one to blame for it and the harsh consequences for the Appellant did not outweigh the public interest of consistent decision making.

The decision marks the end of Evidential Flexibility in PBS applications.

If you are planning to make an application, contact immigration professionals as early as possible!

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