As a direct immigration barrister I have been doing a large volume of paragraph 322(5) cases recently. The Judicial Reviews are the hardest to win and I have given what I think is useful guidance as to how they can best be won. The appeals are continuing to enjoy success.
I am looking forward to the Court of Appeal case on 17 July 2018 assisted by Jay Gajjar of chambers in which we are challenging the following, not only permission, but expedition and injunctive relief which in this case will include the right to work, rent and access to the NHS.
We have filed amended grounds and will be lodging the skeleton shortly. Hopefully we will have some useful guidance in that regard.
However, I am happy to say that the Upper Tribunal have recently handed down a judgment in the case of Khan, a case successfully won by Jay Gajjar of Imperium Chambers after what seems to have been a long and arduous hearing.
What is particularly useful and will be of use in other Judicial Review applications is that the Judge took the time to issue guidance as to the approach to be adopted by the Secretary of State.
The guidance is as follows.
- Where there is no plausible reason for the difference in tax figures the SSHD is entitled to draw an adverse inference as against the Applicant;
- Where evidence is provided to explanation the difference the SSHD must engage in a fact finding exercise to determine whether the inference of dishonesty is displaced;
- In that consideration the SSHD should remind himself of the relevant standard of proof, balance of probabilities but should also remind himself of the consequences of a finding of dishonesty;
- Simply blaming an accountant, or shutting one’s eyes to the problem / difference will not be sufficient to displace a finding of dishonesty;
- Where an issue arises as to whether the individual has been careless or dishonest it will be for the Secretary of State to provide sufficient reasons for the reason for disbelief. However, the Secretary of State must consider the evidence pointing in both directions before drawing a conclusion. If this is so done properly then the Secretary of State’s decision will likely not be impugned;
- There are legitimate questions for the Secretary of State including;
- Whether or not the explanation is plausible;
- Whether documentation that should be in existence, it should be disclosed or an explanation as to why it is not provided;
- Why did the Applicant not realise that there was a mistake in their tax;
- Whether the Applicant has taken steps to remedy the situation and if so when were those steps taken;
- If in relation to 6 above an assertion is made and there is evidence is present the Secretary of State should consider it. If such evidence exists then the Secretary of State should call for it before making the decision, the failure to provide such evidence can lead to the Secretary of State refusing the application; and
- The Secretary of State should articulate the reasons for making the decision.
This is welcome guidance indeed for all those seeking to make Tier 1 applications or those seeking to challenge adverse decisions. They, in effect, mirror the earlier blogs / articles I have written.
Essentially, before making an application, make sure that the tax is sorted, if a mistake is discovered provide a reason for the mistake, if the mistake is because the accountant made an error obtain evidence from the accountant, furthermore why you did not spot the error. If the error was due to illness in the family or because of some other problem then provide an explanation and evidence.
This is relevant whether you are challenging a decision or making an application or even are thinking of making an application in the future, I have won a number of appeals where the Appellants sought to check on their tax a year or two, and in one case nearly three years before applying for ILR. This gives you the best possible chance of avoiding an appeal / JR or of winning it.
This is a complicated area of law and we at Imperium Chambers will be holding a surgery / clinic / workshop shortly to give advice to those who are caught by or could be caught by paragraph 322(5). This is independent of our general challenge that the wrong rule has been applied.
Please do not hesitate to contact me or any one of the excellent team at Imperium Chambers to arrange a conference as to the best way of securing your leave or fighting a decision. As you can see from the above, it is vital that each and every case is prepared as fully as possible. I have come, sadly, across cases where the individual has simply failed to address these concerns and has either made the application themselves or completed the Administrative Review process themselves. Please use a reputable lawyer. We are here to help.
Paul Turner is a highly regarded direct access immigration barrister licensed to litigate by the BSB and is the founder and head of Imperium Chambers. Please feel free to get in touch and we will come back to you as shortly and swiftly as we can.