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Can new evidence be considered in Points Based System appeals?


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The Court of Appeal considered section 85A of the Nationality, Immigration and Asylum Act 2002 in the case of Olatunde v Secretary of State for the Home Department [2015] EWCA Civ 670 and on the facts of the case holds that new evidence cannot be considered by the tribunal in a Points Based System appeal. The facts of the case look weak from the judgment and Appellant Counsel’s submissions rather extreme.

The Court of Appeal does not go as far as endorsing the Upper Tribunal’s decision in Ahmed (PBS: admissible evidence) [2014] UKUT 00365 (IAC) (covered here on Free Movement: Genuineness test for entrepreneurs and new evidence on appeal, the issue not directly arising in the case. Some relief might be available for applicants refused on genuine entrepreneur grounds if the interview was manifestly unfair and/or the Home Office simply fail to prove their case on the basis of the often deficient interviews, as Mark Symes and I discuss in May 2015’s podcast.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


One Response

  1. Depending on the wording of the decision, ie if it clearly states that the HO question documents submitted with the application following a “genuineness test”, it is worth trying to get new evidence in under the exception at s.85A(4)(c) – adduced to prove a document submitted is genuine or valid.