The changes to the Immigration Rules on 1 October 2013 added 'genuineness' tests to Tier 1 (general), Tier 2 (minister of religion), and Tier 5 (temporary worker) migrants on top of those already in place for Tier 1 (entrepreneur) and Tier 4 (general) migrants. This will give considerably more discretion to officials when deciding these applications. It is also expected to result in greater scrutiny of applicants so that an official can reach a conclusion on whether or not the application is genuine.

Penningtons recently acted on and won a Tier 1 (entrepreneur) appeal, following a refusal on genuineness grounds. It was alleged by the Home Office that false documents had been submitted by the appellant in previous applications made some six years earlier. The appellant had made multiple successful applications since then and the issue was only raised in her most recent Tier 1 (entrepreneur) application.

In this scenario, the applicant was not aware of, nor able to address, the Home Office's concerns before the decision was made. Initial decisions, even on genuineness grounds, are still made based only on what has been submitted, on other information which the Home Office holds and, in some cases, an interview. This means that refusals on discretionary grounds will often have to be appealed as this will represent the only opportunity for the applicant to hear, and then respond to, the full case for refusal.

The Points Based System was intended to avoid this situation by establishment of transparent, objective criteria for applications. When it was introduced, the Home Office stated that "prospective applicants will, prior to making their application, be able to assess themselves against the criteria". With the introduction of subjective decision making based on genuineness criteria, however, such objectivity has been dramatically reduced in most categories.

As a result, it is essential that applicants not only meet the mandatory requirements, but also that they are able to demonstrate the genuine nature of their application. Our team's experience working with the genuineness test allows us to predict possible pitfalls and help our clients prepare the strongest applications possible.