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Highly skilled migrants fighting paragraph 322 (5) still await an end to the debate (18 September 2018)

Date: 18/09/2018
Duncan Lewis, Business Immigration Solicitors, Highly skilled migrants fighting paragraph 322 (5) still await an end to the debate

I wrote in June with the promise that the government was going to overlook the implication of paragraph 322 (5) of the Immigration Rules; however, since then the debate has remained in the House of Commons, as of yet there have been no indication of any amendments to this paragraph.

Paragraph 322 (5) is something of a catch-all provision, which deals with general grounds for refusal, in that it says that an application for leave to remain should normally be refused where,

‘[T]he undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security.’

In the House of Commons, on Thursday, 13 September, MP Alison Thewliss, demanded a debate1 on what she said was “the incompetence of the Home Office” concerning 322(5).

“We were promised on 21 June that there would be a review in the next few weeks. This has not emerged…Too many highly skilled migrants are waiting for this government to make a decision, living in poverty and racking up huge debts.”

At least 1,000 highly skilled migrants seeking indefinite leave to remain (ILR) in the UK are wrongly facing expulsion for making legal amendments to their tax records under paragraph 322(5), according to the support group Highly Skilled Migrants (HSM).

In the cases of Oluwatosin Bankole Williams and Farooq Shaik, the Upper Tribunal judge, Melissa Canavan, denounced the use of these rules against migrants who made legal tax amendments.

The rulings in these cases will only serve to strengthen the hand of the 20 MPs and the member of the House of Lords who are intending to establish separate pressure groups to persuade the Home Office to halt this practice.

It is clear that the Home Office’s misuse of power is not always successful since at least 50% of immigration appeals2 against Home Office decisions succeed in the courts. The Law Society warns that this rate suggests the system as a whole is “seriously flawed”. According to the support group for those fighting paragraph 322(5), their success rate is far higher, at 75.3%.

From this figure, it seems that the Home Office is pursuing the cases without merits, even when the migrant’s accountant writes with an explanation, or to admit the errors that were made.

A Home Office spokesperson says that "so far there is insufficient evidence to suggest there is any systemic problem" with wrongful removals under paragraph 322(5) of the Rules3.

Nonetheless, clearly there are many grounds to challenge these refusals. It is therefore important to seek legal advice in order to assess how the immigration rules were used by the Home Office to reach a negative decision in your case. You may have a genuine reason why your income is varying and can argue that, taking all circumstances into account, the Home Office’s decision is disproportionate. It may be possible to argue that the decision actually breaches your human rights.

No matter your circumstances, author Tamana Aziz, a solicitor and Director of Immigration at Duncan Lewis, can assess your case and assist you in appealing a Home Office decision. With an extensive caseload acting for individuals and businesses in a range of immigration matters, she is well versed in paragraph 322 (5) of the immigration rules, meaning she is up-to-date with the latest developments with these case types.

Her practice also includes immigration applications under EU law, business immigration under the Points Based System, complex appeals (including deportation and country guidance cases) in Immigration Tribunals, the High Court, Court of Appeal and the Supreme Court.

Tamana advises employers and provides bespoke training on subjects such as compliance with the Home Office’s Prevention of Illegal Working regime and how to use the online sponsorship management system. In addition, Tamana advises high net worth and skilled individuals on extending Tier 2 (General) visas, spousal applications, applications for settlement and British Citizenship. Tamana also has significant experience assisting clients with immigration applications under EU law.

For expert advice and support with your cases, contact Tamana on tamanaa@duncanlewis.com, or 020 3114 1130.

Duncan Lewis Immigration Solicitors

Our Immigration department is ranked as a top-tier practice in Immigration: human rights, appeals and overstay matters in The Legal 500 2017. As leading immigration specialists we advise on business immigration, right to work in the UK, Tier 2 visa applications, student/graduate visas, spousal visas and visa overstays.

Our broad practice provides a full service to SME business clients across the UK in relation to the Points Based System (PBS); Sponsorship license applications and immigration strategy/compliance advice. Our specialist solicitors are also able to advise businesses and individuals on any changes to UK immigration law during Brexit negotiations and after 29 March 2019, post-Brexit.

For expert legal advice call Duncan Lewis immigration solicitors on 033 3772 0409.

1 https://parliamentlive.tv/event/index/c2a8d13e-894b-443a-b284-20b608a5c115?in=12:58:20&out=12:58:01
2 http://www.lawsociety.org.uk/news/press-releases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/
3 https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2018-05-15/144295

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