Immigration analysis: Genuineness tests have been introduced into the points-based system (PBS) as a weapon to eradicate abuse from the system, but how objective are they? James Perrott, senior solicitor at Macfarlanes LLP looks at recent developments around the application of the genuineness tests.

What was the thinking behind the introduction of the genuineness tests?

When it was originally conceived, the PBS was meant to be an objective system which was supposed to enable both an applicant and, where relevant, their sponsor, to easily ascertain whether the migrant met the criteria to enter the UK under the appropriate PBS category. It was also supposed to make it easier for Home Officer officials, whether they are caseworkers in the UK or entry clearance officers (ECOs) based overseas, to adjudicate applications in a consistent and transparent way. The Home Office even stated at the time of the introduction of the PBS in 2008 that 'the system of points gives us an objective way to make decisions'. If an applicant met the objective criteria, the application had to be approved.

However, the Home Office has come to the view that this use of solely objective criteria is leading to abuse of the system. The first example of a 'genuineness test' being introduced into the PBS involved the Tier 1 (Entrepreneur) category. Prior to the introduction of this test in January 2013, it was sufficient for applicants to demonstrate that they had access to the relevant funds. However, in response to a large increase in the numbers of applications submitted under this category (739 in 2011 to 6,878 in 2012)--which the Home Office saw as evidence of widespread abuse, rather than more genuine migrants using the category (particularly as the Home Office had removed or imposed restrictions on other routes)--the Home Office introduced a 'genuineness test'.

What exactly is the genuineness test?

The Tier 1 (Entrepreneur) test included a requirement for applicants to demonstrate that:

  • they genuinely intend and are able to establish, take over or become a director of at least one UK business, and
  • that the funds required for investment in the UK business are genuinely available to the applicant

This now means that Home Office caseworkers may request additional evidence, above and beyond the mandatory documents set out in the Immigration Rules, to demonstrate this--such as a detailed business plan and market research undertaken to establish whether there is adequate evidence of plans to set up a genuine UK business and register as a director within six months of the date of application.

Since this time further genuineness tests have been introduced to other categories of the PBS:

  • Tier 4 (General)--genuine intention to study--July 2013
  • Tier 5 (Temporary Worker)--genuine intention to undertake role--October 2013, and
  •  Tier 2--genuine vacancy test--November 2014

Again, at the time each of these tests was introduced, the UK government stated that they were being introduced to combat perceived abuse of the system. For example, when the genuine vacancy test was introduced into the Immigration Rules governing applications under Tier 2, the Home Office stated this was being done as it had seen evidence that individuals who had been working for companies in a junior role, such as a waiter, while in the UK under a temporary immigration category, such as Tier 5 (Youth Mobility Scheme), would then immediately be sponsored under Tier 2 (General) to work for the same company in a more senior, unrelated role, such as a business development manager. The Home Office was therefore concerned that these senior jobs were being 'manufactured' for the migrants rather than being genuine vacancies which were made available to the resident labour market.

How did the introduction of the tests change the PBS?

The tests have introduced subjectivity into the affected categories of the PBS which means that Home Office caseworkers and ECOs are now able to take into account wider considerations, which are set out in the relevant Modernised Guidance (MG), when deciding whether to approve applications. However, it is often difficult to understand the relevance of some of the considerations set out in the MG. For example, when deciding whether a Tier 4 (General) applicant has a genuine intention to study in the UK, one of the factors that a Home Office caseworker is permitted to take into account is the distance between the applicant's place of study and their proposed accommodation in the UK. Furthermore, where the applicant will be  accompanied by a dependant and it appears that one of the main applicant's reasons for applying is employment, education or health care benefits for the dependant the caseworker is permitted to consider whether the applicant is a genuine student.

The concern is that, with caseworkers being required to take into account, in some situations, a long list of subjective consideration when deciding whether an applicant is genuine, this has led to inconsistency in decision-making and officials taking into account irrelevant or relatively minor factors when deciding to refuse applications.

Can you give some examples of how genuineness tests are working in practice across the various PBS categories?

There is an increasing amount of anecdotal evidence that Home Office caseworkers and ECOs are attaching undue weight to certain considerations which form part of the genuineness tests. For example, a Tier 4 (General) application was allegedly refused on the basis that the caseworker considered that the applicant would be living too far from where they intended to study. In their application, the migrant had stated that, while studying in London, they planned to live with family friends, rent free, in Reading. The Home Office official considering the application did not seem to be persuaded by the reasons given and did not take into account:

  • that the family friends were the only people that the migrant knew in the UK
  • that living in London is expensive, and
  • that a large number of people regularly commute to London from Reading on a daily basis so it would not be unusual for a person studying in London to live there

Furthermore, a Tier 1 (Entrepreneur) application was allegedly refused because the applicant, when asked at an interview, did not know the level of the UK national minimum wage.

Other alleged examples are of where a Tier 4 (General) applicant was not deemed to have undertaken sufficient research into the city that they would be living in while they studied in the UK because they did not know the name of the local football team.

There have also been reports that some British diplomatic posts are applying a more restrictive interpretation of the genuineness tests than others.

These reports, whether true or not, are fuelling the view that some Home Office officials are applying the various genuineness tests incorrectly, inappropriately and in a way that gives undue weight to minor considerations. There is also a concern that there is a lack of consistency globally about how the various tests are applied.

How has the case law developed?

Surprisingly, given the level of subjectivity that the genuineness tests have introduced, there have been no reported decisions of cases where the application of a genuineness test has been challenged. This may be because the various genuineness tests have only been introduced comparatively recently but it is also certainly the case that, rather than appealing decisions, applicants are choosing not to proceed further or are, instead, submitting fresh applications which address the areas of concern highlighted in the previous refusal.

The case of Ahmed and another (PBS: admissible evidence) [2014] UKUT 365 (IAC)) is interesting in that it confirmed that, for Tier 1 (Entrepreneur) applications, there is an inextricable link between the genuineness test and the acquisition of points under the category. This is because, if an applicant fails the 'genuineness test', they are not awarded points for having the appropriate funds. Consequently, if an applicant appeals a decision which was refused on the grounds that they did not satisfy the genuineness test, since it was an application made under the PBS, the tribunal is only able to consider evidence which was before the decision-maker at the time of application.

What are the challenges for lawyers?

The main challenges facing lawyers relate to the fact that it is the applicant's responsibility to demonstrate that they satisfy the relevant genuineness test. For Tier 1 (Entrepreneur) applications, Home Office guidance sets out the additional documentation which may be requested by Home Office officials when they consider applications. Consequently, it is best practice for lawyers to advise clients to either submit these non-mandatory documents with the application, or have them available so that they can be provided immediately, if requested. For those applicants applying under a category where genuineness is tested at interview, for example the Tier 4 (General) category, lawyers should, if possible, go through the MG which relates to the 'genuineness test' with the applicant to ensure that they are able to address all the points set out in the MG.

Furthermore, when a lawyer is advising a client who has had an application refused on the basis that they did not satisfy the requirements of the appropriate genuineness test, they should consider whether it would be in the client's best interests, rather than challenging the decision, to submit a fresh application which contains evidence that specifically addresses the point(s) of concern identified in the refusal notice.

What does the future hold for the tests?

The most recent genuineness test that the Home Office introduced is the genuine vacancy test for Tier 2 applications. This effectively incorporated the genuine vacancy test that was already in the Tier 2 and Tier 5 policy guidance into the Immigration Rules so it is arguably not a new test. Following the introduction of this test, the Home Office has stated that it does not have any plans to introduce further genuineness tests for PBS applications. This is probably likely to be the case as some form of genuineness test has now been introduced into all the open PBS categories (although not in some sub-categories).

The Home Office view these tests as a vital weapon in its fight to eradicate abuse from the system so it is likely that these tests are here to stay. In addition, as the Home Office uncovers further evidence of what it deems to be abuse, the MG is likely to be amended accordingly. However, it will be interesting to see whether more applications which are refused on the basis that applicants do not satisfy the relevant genuineness test are challenged in the courts, and the judiciary's view on how these tests should be applied.

Interviewed by Evelyn Reid.