IA186462014 & IA187032014

The Appellants are citizens of Nepal born on 29 th September 1984 and 14 th March 1980. They appeal against the decision of First-tier Tribunal Judge Scobbie dismissing their appeals against the refusal of leave to remain as Tier 1 (Entrepreneur) Migrants under the Immigration Rules and on human rights grounds.

Permission to appeal was sought on the grounds that the Judge had misinterpreted paragraph 245DD of the Immigration Rules and the accumulation of points under the points based system [PBS]; misapplied the evidential standard of proof; failed to consider the evidential flexibility policy under paragraph 245AA; and failed to consider the Appellants intentions in considering Article 8.

Permission to appeal was granted by Upper Tribunal Judge McGeachy on 4 th June 2015 on the ground that having found that the financial requirements of the Rules were met at paragraph 29, there was a lack of clarity in the subsequent paragraphs in relation to whether the Appellants genuinely intended and were able to establish their business.

Mr Syed-Ali relied on his skeleton argument and submitted that Ahmed (PBS: admissible evidence) [2014] UKUT 365 (IAC) was wrongly decided. The prohibition under section 85A(4) of the Nationality Immigration and Asylum Act 2002 [NIA] in relation to new evidence that goes to the scoring of points did not prohibit the Appellants from establishing the non-points scoring based facts.

The Appellants had been invited for interview after submitting their applications and therefore could not be expected to submit evidence in relation to whether their applications were genuine at the time of the application. To prevent the Appellants from submitting new evidence on appeal was unfair and therefore the Judge should have allowed the appeal on the basis that the Respondent's decision was not in accordance with the law.