Entry Clearance Officer (Islamabad, Pakistan) v Razia Sultana & Ors

31. Giving effect to the above analysis and conclusions: (a) We set aside the decision of the FtT. (b) We re-make said decision by dismissing the Respondents’ appeals to the FtT. As a result, we affirm the decisions of the ECO. THE HON. MR JUSTICE McCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 19 October 2014 APPENDIX Evidential Flexibility Provisions in the Immigration Directorate Instructions relating to family members under Appendix FM and Appendix Armed Forces of the Immigration Rules [July 2014] 3.4.1. There is discretion for decision-makers to defer an application pending submission of missing evidence or the correct version of it, within a reasonable deadline set for this. Decision-makers will not have to defer where they do not think that correcting the error or omission will lead to a grant. 3.4.2. Decision-makers are also able to grant an application despite minor evidential problems (but not where specified evidence is missing entirely). 3.4.3. There is also discretion for decision-makers where evidence cannot be supplied because it is not issued in a particular country or has been permanently lost. 3.4.4. Decision-makers have general discretion to request additional information or evidence before making a decision. 3.4.5. The evidential flexibility is set out in paragraph D of Appendix FM-SE: D. (a) In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State (“the decision-maker”) will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b) or (e) applies. (b) If the applicant: (i) Has submitted: (aa) A sequence of documents and some of the documents in the sequence have been omitted (e.g. if one bank statement from a series is missing); (bb) A document in the wrong format (for example, if a letter is not on letterhead paper as specified); or (cc) A document that is a copy and not an original document; or (dd) A document which does not contain all of the specified information; or (ii) Has not submitted a specified document, the decision-maker may contact the applicant or his representative in writing or otherwise, and request the document(s) or the correct version(s). The material requested must be received at the address specified in the request within a reasonable timescale specified in the request. (c) The decision-maker will not request documents where he or she does not anticipate that addressing the error or omission referred to in sub-paragraph (b) will lead to a grant because the application will be refused for other reasons. (d) If the applicant has submitted: (i) A document in the wrong format; or (ii) A document that is a copy and not an original document, or (iii) A document that does not contain all of the specified information, but the missing information is verifiable from: (1) other documents submitted with the application, (2) the website of the organisation which issued the document, or (3) the website of the appropriate regulatory body, the application may be granted exceptionally, providing the decision-maker is satisfied that the document(s) is genuine and that the applicant meets the requirement to which the document relates. The decision-maker reserves the right to request the specified original document(s) in the correct format in all cases where sub-paragraph (b) applies, and to refuse applications if this material is not provided as set out in sub-paragraph (b). (e) Where the decision-maker is satisfied that there is a valid reason why a specified document(s) cannot be supplied, e.g. because it is not issued in a particular country or has been permanently lost, he or she may exercise discretion not to apply the requirement for the document(s) or to request alternative or additional information or document(s) be submitted by the applicant. (f) Before making a decision under Appendix FM or this Appendix, the decision-maker may contact the applicant or their representative in writing or otherwise, to request further information or documents. The material requested must be received at the address specified in the request, within a reasonable timescale specified in the request.