The Home Office ILR refusals for Tier 1 (General) applicants under paragraph 322 (5) of the Immigration Rules have been recognised as “legally flawed”
Following our recent article on the rise in the number of ILR refusals of highly skilled migrants, including the Tier 1 (General) category, we now bring further update after the Balajigari ruling.
In some of the cases in question, the Home Office refers to the paragraph 322 (5) of the Immigration Rules, designed to tackle criminals and those who pose a threat to national security. According to the latest data, around 1,000 migrants under Tier 1 category could not obtain ILR status, because they made amendments to their tax returns, which the Home Office interpreted as a violation of law.
Visa refusals based on paragraph 322 (5) have very serious consequences for the respective applicants, such as not being able to obtain any UK visa thereafter or possible entry bans for ten years. Many applicants, whose visa applications were refused, had only 14 days to leave the country. Taking into consideration that the majority have established family life in the UK and have lived here for decades, the limited time given to them to arrange their departure from the country was unfair and unpractical. Those applicants, who appealed the decision, were allowed to stay on a temporary basis, but without the right to work, rent or use the NHS. Moreover, passports of the applicants who were removed under paragraph 322(5) were permanently marked, which makes it highly unlikely that they will continue their career in the UK or get work visa in any other country.
On 16 April 2019 the Court of Appeal made an important decision on the highly controversial issue of using paragraph 322 (5) of the Immigration Rules when the Home Office refused Tier 1 General applicants ILR status due to tax discrepancies. The court allowed four of such appeals and indicated that the position of the Home Office is “legally flawed” and needs to be reviewed. Refusal decisions were based on tax differences, which appeared because of the “dishonesty” of the applicants. However, the Home Office did not provide the applicants with an opportunity to explain questionable points.
The decision of the court does not cancel all refusals related to paragraph 322 (5). Nevertheless, applicants get a second chance to explain the situation to an independent judge.
The Court of Appeal also confirmed that providing false tax information to HMRC or Home Office can be a reason for ILR refusal, and the Home Office can use paragraph 322 (5) not only in cases of national security. However, the Home Office's suspicion of the applicant’s dishonesty is not enough to refuse the application. Before the refusal decision is made, the visa officer must at least warn the applicant about their concerns and give the applicant further opportunity to explain the situation by providing additional information. In addition, the Home Office should take into account other factors, such as whether the presence of an applicant in the UK is necessary (for example, for family reasons), whether he/she has other good reasons to get permanent residence.
At present, the number of applicants wishing to apply for ILR after Tier 1 General route is very small because this visa category has long been closed. Nevertheless, some of the former Tier 1 General migrants who switched to other visa categories may still be affected.
Posted on Apr 16, 2019.