Genuineness test for entrepreneurs and new evidence on appeal
The case of Ahmed and Another (PBS: admissible evidence)  UKUT 365 (IAC) concerns the ‘genuineness’ test that was introduced for entrepreneur applications as the final death knell for the original concept of the Points Based System as a tool for objective decision making. On appeal, the tribunal holds that s.85A of the Nationality, Immigration and Asylum Act 2002 prevents a judge from considering evidence that was not submitted with the original application to the Home Office because the genuineness test relates to the award of points under the Points Based System.
This conclusion is itself questionable as the Home Office itself seems to consider that the genuineness part of the rules is ‘non points based’ and therefore exempt from s.85A. Perhaps more importantly, though, the tribunal seems blissfully unaware in this decision of how the genuineness test operates in practice.
A Tier 1 Entrepreneur application is made. If there are concerns at the Home Office about whether the application is genuine, the applicant is asked to submit additional evidence or is invited to interview. It is only after the application that the applicant learns what concerns the Home Office may have and is asked to submit evidence that was not necessarily needed for a successful application. The applicant therefore cannot possibly submit the relevant evidence at the time of application. In this context, to be prevented from submitting new evidence on appeal is therefore obviously unfair, using that word in the strict procedural sense in Marghia. An appeal could potentially be allowed on the ground that the decision was not in accordance with the law even if the new evidence is inadmissible (which is questionable).
The alternative is yet more judicial review applications because the appeal process is not an adequate remedy. There is no need for that, though. The tribunal can afford to be a little less precious about its jurisdiction and a little more aware of the decision making process leading to an appeal.
The official headnote reads:
1. Where a provision of the Rules (such as that in para 245DD(k)) provides that points will not be awarded if the decision-maker is not satisfied as to another (non-points-scoring) aspect of the Rule, the non-points-scoring aspect and the requirement for points are inextricably linked.
2. As a result, the prohibition on new evidence in s 85A(4) of the Nationality, Immigration and Asylum Act 2002 applies to the non-points-scoring aspect of the rule: the prohibition is in relation to new evidence that goes to the scoring of points.
To be fair to the tribunal, the appellant withdrew the appeal and prevented further consideration of the case. The consideration of the issues is therefore necessarily incomplete. Nevertheless, the case was selected for reporting rather than allowed to languish unreported. The legal politics of the decision to report this case leave us with a highly unsatisfactory, self-insulating precedent that does not consider all the relevant issues and which self evidently cannot be appealed to the Court of Appeal.