Today, 13 June 2018, the House of Commons is set to debate the recent controversy over paragraph 322(5) of the Immigration Rules. The controversy has seen applications for leave to remain by highly skilled/Tier 1 migrants being refused for minor and non-criminal tax discrepancies.
Paragraph 322 (5) deals with general grounds for refusal and is something of a catch-all provision, in that it says that an application for leave to remain should normally be refused where:-
“the 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”
The Home Office has refused many highly skilled migrants working in private and public sectors who have deflated their income with HMRC to pay less tax or inflated their income with the Home Office in order to secure grant of leave. The Home Office considers their conduct undesirable and does not permit them to remain in the UK.
It is to be noted that paragraph 322 (5) is a discretionary ground for refusal which means that the Secretary of State has discretion to grant an application for leave despite being in breach of 322 (5).
In practice it is very rare that the Secretary of State would consider exercising discretion which is what brings these cases to the court. The immigration tribunals are quite flexible and they would look at overall circumstances of each individual case such as good character/conduct and family ties with the UK.
On 29 May 2018 the Home Secretary asked the Home Affairs Committee to review paragraph 322 (5) refusals and requested that the Home Office put pending applications on hold.
The Home Secretary, Sajid Javid, wrote a letter to the Home Affairs Committee Chair, Yvette Cooper and gave the following further details on the matter:
"As you are aware, I have asked the Immigration Minister to conduct a review of the cohort of cases who arrived under the Tier 1 General route and were refused due to discrepancies with their HMRC records. I expect the review of the initial cohort of applications identified to be completed by the end of May after which I will report back to the Committee
"I can confirm that all applications potentially falling for refusal under the character and conduct provisions of paragraph 322(5) in the Tier 1 (General) ILR and 10-year Long Residency routes, where the applicant had previously been in the Tier 1 (General) route, have been put on hold pending the findings of the current review.”
Javid makes it clear that the review will be conducted on a case by case basis. Where paragraph 322(5) is found to have been used in error, individual applicants will have an opportunity to reapply and be accepted under different provisions of the Immigration Rules.
"As part of the review of these cases we are checking individual case records to identify any applicants who were removed having been refused Indefinite Leave to Remain under paragraph 322(5). We have identified 19 individuals who were refused Indefinite Leave to Remain and subsequently made voluntary departures from the UK. One has since been issued with a visa to return to the UK having applied under a different provision of the Immigration Rules. We are also analysing further data regarding other individuals who were refused Indefinite Leave to Remain having applied under the 10-year Long Residency provision and who were previously in the Tier 1 (General) route to determine how many might have been refused under paragraph 322(5) and were subsequently removed or made voluntary departures from the UK.”
In response to the Home Secretary's letter, Yvette Cooper said today:
"We’ve heard of a series of cases of highly skilled workers, employed in our public services and senior jobs legally for many years, now being told to leave apparently due to minor tax errors. So it is welcome that the Home Secretary is now reviewing all those cases and putting decisions on hold."
Specialist Immigration Solicitor Tamana Aziz ’s view:
Clearly there are a number of legal challenges that one can have if refused under paragraph 322 (5). That being said, there is no right of appeal for certain applications such as Tier 1. In this case the solution is to seek administrative review.
In submitting your application it is advisable to rely on Human Rights grounds in order to attract a right of appeal. It is always a better option for your case to be looked at by an independent immigration Judge rather with the Home Office as an administrative review. The advantage of having a tribunal hearing is that you will be heard and you can provide explanation together with documentary evidence explaining the discrepancies in your case.
Author, Tamana Aziz is a Director of Immigration specialising in Business Immigration law under the Points Based System. Recommended in Legal 500 2017 as ‘a great communicator’ and a ‘very committed’ individual in her field, Tamana has developed an expertise in dealing with complex appeals (including deportation appeals and country guidance cases) in the Immigration Tribunals, 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.
Contact Tamana on 020 3114 1130, or email her at firstname.lastname@example.org.
Duncan Lewis Immigration Solicitors
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Our specialist business immigration solicitors will be able to advise businesses and individuals on any changes to UK immigration law during Brexit negotiations and after 29 March 2019, post-Brexit. 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.
For expert legal advice on international recruitment and UK business immigration law, call Duncan Lewis business immigration solicitors on 0333 772 0409.