As a direct access immigration barrister who has been practising extensively in this field for a while I have seen and worked on a fair few paragraph 322 (5) and paragraph 19(j) refusals. I have posted quite a few times on this subject and been involved with the Highly Skilled Group as well advising reporters from the Guardian on this thorny subject.
Recently, after a great deal of waiting the Home Office published their review and various other items. While the Home Office continue to fight these cases, First Tier Judges continue to allow them, I have had a couple of appeals allowed by Judges of the First Tier Tribunal.
It appears that notwithstanding that the Home Office are only winning 35% of the cases they choose to fight in Court and only just over half of all judicial reviews brought that there maybe something that has been missed.
I say may, as there is a potentially new and important ground of challenge that could be mounted, that has not been determined by the Court.
Put shortly, I have identified a ground, that in my view anyway, which may effect a large number of cases.
The Secretary of State regularly relies upon the answers given to the tax questionnaire coupled with discrepancies in respect of tax but rarely, in my experience anyway, interviews those clients that they refuse.
It may well be that the failure to interview amounts to a procedural irregularity that could conceivably undermine the refusal, I say this as that in the case of Williams, the contents of the interview arguably determined the application in the Applicant’s favour, as is therefore important.
In my view upon a proper reading of all the material disclosed previously and recently, a failure to interview amounts to a material error of law and is arguably unlawful.
If you have been refused and were not interviewed I think that this may amount to an arguable error of law. A further issue arises, which is if you have had your appeal dismissed or application lost and this ground was not raised. In my view, this failure could found the basis of an application to re-open or reconsider the refusal.
In my view, and subject to the facts of each case, a refusal made without an interview will not bear scrutiny and that it may well carry the day in a case where there are factors pointing in each direction.
If you, a family member, have a friend or are a solicitor who has a client who has been refused under paragraph 322 (5) without having had an interview or have had your appeal / application refused or dismissed and were not subject to an interview and are interested in pursuing this as a ground of challenge or reconsideration, please feel free to get in touch with me either by email through this site or call my clerk on 020 7242 3488.
If I am right then this could be a potentially game changing issue in the Applicant’s favour. I also understand that clients often work and have child care issues so am able to see clients in the evening and at the weekend if required.
I will of course update this blog with the result of a particular challenge that may well define this issue.
Paul Turner is a highly regarded direct access immigration barrister who is the head of Imperium Chambers of 2 Selkirk Road, London, SW17 0ES, in addition to working directly with the public Paul Turner also takes instructions from solicitors and is always happy to have a chat / discussion about a potential case.