Furqan Ahmed v The Secretary of State for the Home Department

In a Points Based System appeal, the restriction on fresh evidence in section 85A(4) applies to evidence bearing on a points-scoring requirement. That remains so where the Secretary of State has addressed the issue under a heading described as non-points-scoring.

Under paragraph 245DD(k) of the Immigration Rules, the genuineness assessment is inextricably linked to the award of points where failure to satisfy the Secretary of State as to genuineness prevents points being awarded. The Tribunal may not therefore admit fresh evidence to reassess genuineness and then award points on that basis.

The appellants, nationals of Pakistan and Nepal, applied for leave to remain as Tier 1 Entrepreneur Migrants. The Secretary of State refused the applications, finding that their proposed business was not genuine or viable. Although the refusal letter separated non-points-scoring reasons from points scoring, no points were awarded for the relevant funds requirements because of that finding.

The First-tier Tribunal admitted further evidence and allowed the appellants’ appeals after finding the business proposals genuine and viable. The Secretary of State appealed to the Upper Tribunal. The central issue was whether the fresh evidence was admissible under section 85A(4) of the Nationality, Immigration and Asylum Act 2002.

1. The Secretary of State’s appeal succeeded. The First-tier Tribunal erred in law by considering evidence that had not been before the decision-maker when the Tier 1 Entrepreneur applications were made.

2. Section 85A(4) of the Nationality, Immigration and Asylum Act 2002 confines a Points Based System appeal to the material before the decision-maker, subject to its specified exceptions. A successful appeal must show that the decision-maker should have reached a different decision on that material. It is not an opportunity to present the application differently using new material.

3. Paragraph 245DD(k) of the Immigration Rules provides that points will not be awarded where the Secretary of State is not satisfied as to the genuineness of an application in relation to a points-scoring requirement. Genuineness and the award of points are therefore inextricably linked. The label used in the refusal letter could not convert the genuineness issue into a ground unrelated to the acquisition of points.

4. Even if the First-tier Tribunal could examine genuineness, it could not use fresh evidence to decide that points should have been awarded, because that evidence went directly to the acquisition of points. The First-tier Tribunal’s determination was set aside.

5. The appellants then withdrew their appeals against the Secretary of State’s decisions. The Upper Tribunal accepted the withdrawal, leaving the refusals unchallenged.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s determination was set aside, and the appellants withdrew their appeals against the refusals.

• First-tier Tribunal: Allowed the appellants’ appeals after considering further evidence and finding the proposed business genuine and viable.