Olatunde v Secretary of State for the Home Department

Section 85A of the Nationality, Immigration and Asylum Act 2002 restricts the evidence admissible in an appeal concerning a Points Based System decision. The restriction applies to the part of the appeal challenging a refusal of leave to remain under the Points Based System, even where the same proceedings also challenge a removal decision. Consolidating related immigration decisions does not make the appeal indivisible. Later evidence cannot be used where the statutory exceptions do not permit it. Under paragraph 245DD(i) of the Immigration Rules, business-plan viability is one factor in assessing whether a Tier 1 entrepreneur genuinely intends and is able to establish a business. The court left open the position where paragraph 245DD(h) is challenged alone.

These conjoined matters arose from appeals to the Upper Tribunal (Immigration and Asylum Chamber) concerning refusals of leave to remain under the Points Based System and accompanying notices of an intention to remove under section 47 of the Immigration, Asylum and Nationality Act 2006.

Mr Olatunde’s Tier 1 (General) application was refused because he had not supplied the required evidence of income with his application. Mrs Khoteja’s Tier 1 (Entrepreneur) application was refused because the Secretary of State was not satisfied that she genuinely intended and was able to establish a business. The tribunals excluded or considered inadmissible later evidence, including a contract and invoices.

The common issue was whether section 85A applied where an appeal against refusal of leave was brought together with a challenge to a removal decision, and whether later evidence could be considered in relation to the entrepreneur requirement in paragraph 245DD(h).

1. Both appeals were dismissed. The Upper Tribunal was correct that section 85A applied to the appeals against the refusals of leave to remain. Evidence not submitted with the applications could not be considered for those appeals.
2. Section 85(1) consolidates challenges to immigration decisions so that they are heard together. It does not make challenges to separate decisions indivisible. Section 85A(3) therefore applies to the element of proceedings challenging a decision under section 82(2)(a) or (d), even where the proceedings also challenge a decision under section 82(2)(ha).
3. This construction accords with the statutory policy. Appeals generally permit a broad range of relevant evidence, but appeals involving Points Based System decisions are subject to narrower evidential rules. Treating section 85A as applying only where the appeal concerned a single decision would create an irrational distinction between cases involving an immediate removal decision and cases in which removal was deferred.
4. The reasoning of Mushtaq v Secretary of State for the Home Department [2013] UKUT 00061 (IAC) was correct. The fact that section 85(1) brings another immigration decision within the same proceedings does not prevent the appeal from being one against a decision within section 82(2)(a) or (d).
5. Paragraph 245DD(i) permits viability of the business plans to be considered as one factor bearing on whether the applicant genuinely intends and is able to establish a business. The court did not decide whether section 85A would restrict new evidence on an appeal based on paragraph 245DD(h) alone. That question was unnecessary because the First-tier Tribunal had considered the contract and no appeal was brought concerning the exclusion of the invoices.

• Upper Tribunal (Immigration and Asylum Chamber: dismissed Mr Olatunde’s appeal against the First-tier Tribunal and dismissed Mrs Khoteja’s appeal. The Upper Tribunal held that section 85A excluded later evidence in these Points Based System appeals, relying on Ahmed (PBS: admissible evidence) [2014] UKUT 00365 (IAC).
• Court of Appeal (Civil Division): dismissed both appeals and affirmed the Upper Tribunal’s conclusion on the meaning and effect of section 85A.