The case Mandalia v Secretary of State for the Home Department  UKSC 59 can be pivotal example in regards to whether the Presenting Officer has a duty to apply evidential flexibility or it is just a mere power. In this case, the Court of Appeal said: “power”, however, the Supreme Court said: “a duty”.
From August 2009, evidential flexibility was embraced, which allows applicants to repair the deficit in their evidence or correct minor errors in applications for Tier 1, 2, 4 and 5 main and dependent applicants.
The flexible process instruction falls into 19 steps, four of which relevant to the above mentioned case, which the caseworker has to undertake when there is missing evidence or minor errors in the application:
- It needs to be identified whether there was missing evidence, if yes the caseworker must proceed to step two;
- It needs to clarified whether the application would be refused even if the missing evidence was rendered, if no, the caseworker must proceed to step three;
- The caseworkers request for additional documents in certain circumstances, where they are assured that the missing evidence exists, e.g. listed in Annex A (not exhaustive);
- In step four, the caseworker is to discuss the uncertainty with his line manager. Benefits should be counted towards the applicant if the line manager has reasonable grounds to believe that the missing evidence exists or even unsure, thus the evidence should be requested in step five by contacting the applicant.
It was held that the Home Office’s refusal was unlawful as there was not any attempt firstly to invite Mr Mandalia to correct minor error specifically to repair the deficit in his evidence. Therefore, the court should allow this appeal, and annul the refusal of Mr Mandalia’s application.