Last month, it was reported that the Court of Appeal overturned the decision of the Upper Tribunal in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2. This case concerned the effect of the so called ‘Evidential Flexibility’ policy in applications for leave to remain under the Points Based System (PBS). In this case, the Court of Appeal considered whether the Secretary of State was under an obligation to consider additional evidence submitted after the submission of an application for leave to remain under the PBS.
Rodriguez:Â Facts of the Case
The Appellant in this case was a foreign national seeking leave to remain in the UK as a Tier 4 (General) Student migrant for the purpose of study in the UK under the PBS. The Appellant had submitted an application in which she failed to supply evidence such as bank statements, pursuant to the Immigration Rules, sufficient to attract an award of points needed to satisfy the maintenance funding requirements. This resulted in the Appellants application for leave to remain as a Tier 4 (General) Student being refused.
At the time of submitting the application, the Appellant did in fact have the requisite funds in a bank account but had not provided evidence of this. The question for the Court was whether the Home Office should have contacted the Appellant (thus engaging the ‘Evidential Flexibility’ policy) to enable them to remedy the deficiencies in their applications.
Rodriguez: The Decision & Implications on PBS Applicants
Upon careful analysis of the Court of Appeal’s decision, it seems that the Court of Appeal has overturned the Upper Tribunal’s decision both with respect to the meaning of the May 2011 policy and the general intention behind the Evidential Flexibility policy.
The Court of Appeal concluded that the Evidential Flexibility policy did not require the Secretary of State, in every case where there was a failure to meet the requirements of the Immigration Rules, to make further enquiries. It seems that those who have failed to support their PBS visa applications with the required supporting documents had no one to blame for it and the harsh consequences for the Appellant did not outweigh the public interest of consistent decision making.
Successful UK Points Based System Visa Applications & Appeals
Our team of experienced and professionally qualified immigration solicitors and barristers will be able to guide you through the process of making a PBS visa application (including Tier 1 Entrepreneur, Tier 1 Investor & Tier 4 Student visa applications) step by step and limit the possibility of failure by complying with the strict letter of law.
We also undertake a great deal of appeal work before the Immigration and Asylum Tribunal and have a successful track record of successful results for our clients. We have the experience and the knowledge required to take your case forward successfully. If you have had a student visa refused, contact us to discuss your case so that we can provide you with a case assessment.
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