Home Office Evidential Flexibility Policy Explained

• Jurisdiction: European Union,United States,Federal
• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Immigration, General Immigration, Work Visas
• Author: Mr Cameron Wallis
• Published date: 18 January 2023

Evidential flexibility is the name given to the set of provisions allowing decision-makers to take a more pragmatic approach to gaps in evidence. When evidential requirements are nearly met, decision-makers may treat them as met anyway or else request further information or documents from the applicant or third parties.

Evidential flexibility is not applied uniformly across the different visa categories. Applicants under the EU Settlement Scheme, Appendix FM and the Point-Based System can all ask decision-makers to consider some form of evidential flexibility. These three categories of applicants will be considered in turn.

EU Settlement Scheme Evidential Flexibility

Appendix EU itself does not contain a delineated evidential flexibility scheme. However, the EU Settlement Scheme as a whole has some of the softest evidential edges of any immigration category, the Home Office guidance repeatedly emphasising that decision-makers should take a "flexible and pragmatic approach" to evidence. This is particularly the case in relation to evidencing residence requirements, though it should be noted some of the evidential requirements in the Annexes of Appendix EU are framed as definitions and are, accordingly, less flexible.

This notwithstanding, page 10 of the Home Office guidance on the EU Settlement Scheme quotes from paragraph 1.15 of the Statement of Intent on the EU Settlement Scheme, published on 21 June 2018, as follows:

The Home Office will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens.

The guidance continues as follows:

Each case must be considered on its own merits and you must work flexibly with the applicant to try to obtain sufficient supporting information or evidence to satisfy you of their identity and nationality or of their entitlement to apply from outside the UK.

[...] more than one piece of evidence can be requested on a case by case basis and each case must be considered on its own merits to help you build a picture of the applicant's identity and nationality or of their entitlement to apply from outside...