Ahmed and another (PBS: admissible evidence)  UKUT 365 (IAC)
In the recent case of Ahmed and another (PBS: admissible evidence)  UKUT 365 (IAC), the Upper Tribunal held that the prohibition of new evidence under s.85A(4) of the Nationality, Immigration and Asylum Act 2002 applies to the non-points scoring aspect of the rules, even though the prohibition relates to new evidence that goes to the scoring of points.
In this case, the Tier 1 entrepreneur applications of Mr Ahmed and Mr Sowedi were refused on the basis that they did not meet the ‘genuineness’ test which requires an applicant to show that they genuinely intend and are able to establish, take over or become a director of one or more businesses in the UK within six months of the application. An applicant must also show that he or she genuinely intends to invest their money in one or more UK businesses. As the Secretary of State was not satisfied that they were genuine entrepreneurs – a non points related aspect of the rules, they were not awarded any points, under ‘Access to Funds’, ‘Funds held in Regulated Financial Institutions’, and ‘Funds Disposable in the United Kingdom’.
On appeal to the First-tier Tribunal, the applicants produced various new documents which enabled the Judge to conclude that the business proposals was genuine and viable. The appeals were therefore allowed. The Secretary of State appealed to the Upper Tribunal on the basis that the First-tier Tribunal Judge acted in a way that was not open to her.
The Upper Tribunal held that the non points related aspect of the rules and the requirement for points are inextricably linked where the rules provide that points will not be provided if a non points related aspect is not satisfied. Where a points based application is refused, a Judge can only consider material that was before the decision-maker and not new material. Vice President of the Upper Tribunal Judge Ockelton referred to paragraph 245DD(k) of the Statement of Changes in the Immigration Rules, HC 395 (as amended), which states that 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. This provision clearly links the assessment of the genuineness of the scheme to the acquisition of points. The Upper Tribunal further stated that even if the appellant were able to show that the Judge was entitled to look at the genuineness of the scheme for the purposes of the appeal before her, she would nevertheless be unable to reach the decision that because of her view about the genuineness of the scheme, points ought to have been awarded. That is because this itself would link the genuineness of the scheme to the acquisition of points, and she was prohibited from hearing evidence which went to the acquisition of points.