Guidance

ECB10: Making a decision on an application

Published 28 November 2013

1. ECB10.1 Accepting the application form

Entry clearance applications should be examined before they are formally accepted to ensure that all the essential information has been provided. This is normally done by an Entry Clearance Assistant or at the Commercial Partner’s visa application centre, who will check to ensure that:

• the application form is legible and has been filled out in full;
• one ICAO compliant passport size photograph is included;
• the applicant’s passport is valid.

Although the requirements for photographs are not the same as the UK Passport Service’s, Posts may find their guidance useful material for publicity if the quality of photographs is a problem locally.

UK Passport Service - Passport photographs (PDF 291KB opens in a new window)

2. ECB10.2 Do applications from a Ministry of Foreign Affairs require an application form?

Although it is expected that all applicants complete an application form, a note from the Ministry of Foreign Affairs requesting the issue of entry clearance for an official should be accepted. In these cases, an application form will still need to be completed (by visa section staff) to cover the application.

3. ECB10.3 Checking the passport

Applicants’ passports and travel documents should be carefully examined for previous immigration history. See ECB07 - Returnability and ECB08 - Acceptable travel documents for further guidance.

4. ECB10.4 Two or more people travelling on the same passport

An application form is needed for each applicant regardless of whether or not they have their own passport. All dependants who are travelling must pay the appropriate fee whether or not they are included in the main applicant’s passport. See ECB06 - Entry clearance fees for more guidance.

If the passport includes the particulars of a servant or any other person who is not a member of the family of the applicant, a separate passport and visa will be required for that person.

5. ECB10.5 Burden of proof

The burden of proof lies with the applicant. This is implicit in the various sections of the Rules which state that entry clearance may be granted ‘… provided the Immigration Officer (read ECO) is satisfied that each of the requirements (of the relevant Rules) is met’.

If the applicant does not produce evidence, or the evidence produced is inadequate to show that he / she fulfils the qualifying requirements of a category in the Rules, then a refusal will usually be appropriate.

If however the ECO supports a decision to refuse with evidence or allegations which cannot be substantiated or clearly accepted as reliable, a court / adjudicator could decide that the burden of proof fell on the ECO to justify the refusal.

Provided that the evidence used by the ECO to justify a refusal is factual and clear and it is relevant to the Rules applying to the application, the burden of proof will remain with an applicant. For example, if an applicant in the past had had to rely on public funds in the UK or had a poor immigration record, the evidence would be based on facts. The burden of proof would not be on the ECO.

6. ECB10.6 Documents

Although there is no legal requirement for applicants to provide documents, there is a great deal of advice on websites at post and at the Commercial Partners informing applicants of the documents that would help support their application. The relevant part of the Visas and immigration section on this website gives advice on documentation.

The ECO or the verification staff should normally, subject to local risk assessment requirements, insist on seeing the originals of supporting documents as alterations to a document are not always apparent on a photocopy. Any documents provided must be properly held by the applicant. This is particularly important in documents relating to birth, death, marriage, civil partnership or divorce. Particular care should be taken not to damage or destroy documents if they have been left by the applicant.

The ECO should adopt a flexible approach, without compromising the integrity of the immigration control, with documentation submitted in support of an application. There will be circumstances where necessary documentary evidence is clearly lacking. The ECO / ECM has discretion to vary the documentation required to support an application.

7. ECB10.7 What to do if an applicant provides insufficient information

This information is only applicable to non points-based system (PBS) and settlement applications not covered by Appendix FM. The onus is on the applicant to ensure that their application is prepared properly. The application should not be deferred, except in the most exceptional circumstances, to enable the applicant to produce additional documents. A refusal on papers should be considered. However, where the ECO judges that the applicant would be granted entry clearance should the information have been provided (for example where the applicant has a good travel history), the application should be resolved without sight of the documents. For information about PBS and settlement applications covered by Appendix FM and the correct usage of evidential flexibility see ECB10.13.

8. ECB10.8 Criminal convictions

For guidance on refusing if a criminal conviction is relevant see RFL10 - Refusals.

9. ECB10.9 Witnesses attending trials in the UK

For guidance see VAT28 - Witnesses attending trials in the UK.

10. ECB10.10 Who takes the decision on an application?

10.1 For the UK:

Decisions on whether or not to grant an entry clearance must always be taken by an ECO who has completed and passed the full ECO course given by the UK Border Agency International Group training team.

ECOs dealing with entry clearance applications for the UK must be B3s, Executive Officers, Immigration Officers or LE2 / LEECO officers or, in some cases, UK-based A2 officers. Security clearance is required up to SC level.

10.2 For Commonwealth Governments and Overseas Territories:

Entry clearance work on behalf of Commonwealth Governments and OverseasTerritories (which generally carries little local discretion) should usually be performed at LE3 level with the exception of authorising the issue of the visa on Proviso; this task must only be performed by an ECO.

DVSs should be informed if UK-based staff are being used for Commonwealth and Overseas Territory work as this has implications for the budget.

10.3 ECB10.11 Assessing an application

• Ensure all checks have been carried out and the results acted on.
• Be clear about what the application is for.
• Identify the relevant provisions of the Rules and ensure that the current version of the Immigration Rules is used.
• Be clear about the information needed to reach a decision within the Rules.

If there is no need for referral or deferral, then the ECO must decide on whether to issue or refuse the entry clearance application. Applications should not be deferred to enable applicants to produce additional documents, unless a decision cannot otherwise be reached or referral is mandatory. The majority of applications can be resolved and a decision taken on the basis of documents submitted, with additional checks if necessary.

The ECO is encouraged to make quick, pragmatic decisions to resolve applications, on papers where appropriate, using Structured Decision Making, their expertise, local knowledge and focussed interviews. The ECO should not rely unnecessarily on documentary evidence.

If the ECO is satisfied, having assessed the papers, that the applicant qualifies for an entry clearance, there is no requirement for the applicant to be interviewed. If the applicant does not meet the requirements of the Rules the applicant should be refused without interview.

10.4 ECB10.12 What to do if requested to provide written verification of a passport or visa

Posts must not issue letters to travellers authenticating or verifying passports or visas.

Prospective travellers who request such letters should be advised to ask the airline to contact Post. If airline staff experience problems identifying forged documents they should be put in contact with RALON (Risk and Liaison Overseas Network).

11. ECB10.13 Evidential flexibility

Evidential flexibility can only be used in PBS applications and settlement applications under Appendix FM. It should only be used in an otherwise compliant application, where one document or piece of evidence is missing, and it is clear from the application form and other documentary evidence that the missing document exists, the entry clearance officer should apply evidential flexibility and request that the applicant provide the missing document within seven working days. If the missing information is not received within the permitted timeframe then the application should be refused.

Evidential flexibility should not be used in situations where even if the missing evidence was provided the application would fall for refusal.