Today, a new immigration case from the Upper Tribunal Ahmed and Another (PBS: admissible evidence) [2014] UKUT 365 (IAC), regarding the Genuine Entrepreneur Test and the strict immigration procedures of submitting new evidence on an appeal.
Facts of the Case
The two Appellants, Furqan Ahmed a Pakistani national and Bachan Subedi a Nepali national, both entered the UK as students. Whilst in the UK they were both granted leave as Post-Study migrants. At the beginning of 2013, they made a Tier 1 Entrepreneur application with the intention of starting a business together supplying IT services to various other firms.
In April 2013, the Appellants were interviewed as part of their application process and the Secretary of State for the Home Departments (SSHD) was prepared to accept further documents. On 9 July 2013 the applications were refused for the following reasons:
- In the “Non-Point Scoring Reasons for Refusal” section, this involves the decision-maker looking at all the material available to her that she considered related to the genuineness of the appellants’ proposals. After going through the documentation, the Secretary of State was not satisfied that the applicants were genuine entrepreneurs;
- The second part of the assessment titled “Points Scoring”, the appellants were not awarded points for Access to Funds, Funds held in Regulated Financial Institutions, and Funds Disposable in the United Kingdom;
- They were awarded points for English language and maintenance.
According to paragraph 245DD(k) of the Statement of Changes in the Immigration Rules, HC 395 (as amended) is the following:
“If the Secretary of State is not satisfied with the genuineness of the application in relation to a points scoring requirement in Appendix A those points will not be awarded.”
The Appellants appealed the SSHD decision to the First-Tier Tribunal heard on 9 January 2014. Both Appellants gave evidence at the hearing and provided a number of documents which led Judge Jessica Pacey to view the business proposals as genuine, therefore granting their appeal.
The SSHD applied for and obtained permission to appeal this decision. On the basis that the immigration Judge took into account material other than that which was before the decision-maker. When a point based application is made and refused, ‘the assessment by the Judge is to be of the material that was before the decision-maker rather than a new consideration of new material.’
Upper Tribunal, Judge Mr C M G Ockelton: The Judge erred in law in reaching her conclusion
Upper Tribunal, Judge Mr C M G Ockelton concluded that he would grant the Appellants wish to with draw their appeal, in order to make a fresh application. Therefore, leaving the Secretary of States refusal unchallenged:
“For those reasons we are satisfied that the Secretary of State’s grounds of appeal are made out. The Judge erred in law in reaching her conclusion. It is impossible to say what conclusion she would have reached if she had not taken into account the evidence which she was not entitled to hear. We set aside her determination. The position then is that we are required to substitute a decision or remit the case to the First-tier Tribunal for a decision to be made. However, Mr Asme has told us after taking instructions that at that point the appellants would wish to withdraw their appeal against the Secretary of State’s decision and make a new application supported by the documents which are now available to them, no doubt during the course of the business which they have been seeking to run ever since they set it up at the end of 2012. We will accept that withdrawal. The result is that the First-tier Tribunal Judge’s judgement having been set aside, the decision of the Secretary of State is now unchallenged and stands as a refusal of the applications made at beginning of 2013.”
Successful Tier 1 Entrepreneur Visa Applications & Appeals
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