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As a direct access immigration barrister who has represented a large number of Applicants/Appellants who have been refused under paragraph 322 5 of the Immigration Rules HC 395 and also paragraph 19(i) and (j) of Appendix A and head of Imperium Chambers, where Jay Gajjar and Kareesha Turner have also been representing and involved in this niche area of law we have long been waiting for the review that was promised earlier in the year.

Today it is out, along with the new guidance.

I have decided to post two short articles on both the guidance and the review. I have thought as to what should go first, in my view, the guidance, given that it has been missing so far and directly affects current and arguably previously refused clients, merits first consideration. Below is a link to the guidance.

The new guidance is in my view rather shocking. In my view it completely undermines a large number of the previous refusals – and arguably supports the arguments that we have been running at Imperium Chambers – arguments that have enjoyed success in the First Tier Tribunal – but have been rejected – often with very short reasons in the Upper Tribunal.

The full guidance can be found here

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/758399/2018-11-22_Tier_1__General__paragraph_322_5__-_casework_guidance.pdf

What we have been arguing includes, inter alia, the following:

  1. That where the HO are thinking of making an adverse finding they must ask the Applicant for an explanation;
  2. That 322 5 being discretionary requires an overall consideration of factors;
  3. That the Secretary of State must decide whether explanations are credible;
  4. Crucially that they should provide reasons;
  5. That there is often a lack of evidence to support dishonesty;
  6. That the Home Office have not looked at all the 9 criteria contained in paragraph 19(j) of Appendix A of the Immigration Rules – however they have previously just relied on, on some occasions, one tax discrepancy; and
  7. Paragraph 19(j) only applies to current earnings and not previous earnings.

These are among some of the general arguments, these combine often with personal circumstances.

I have had cases refused where, usually in the UT, the Court have held that the HO was entitled to hold 1 tax amendment as being sufficient to justify dishonesty with no interview or chance to explain or that where an accountant has provided an explanation this is rejected out of hand, indeed I had one case recently where the HO found that it was incredible that a professional accountant would make a mistake even though 2 members of the accountancy firm had been imprisoned for defrauding their own customers for over £1,000,000, yet the HO ignored this evidence.

The guidance is both welcome but also to me shocking, its shocking because it essentially adopts what we have been arguing is the correct approach.

What is equally disturbing is that the guidance “replaced” previous guidance, yet this was not to be seen in respect of 322 5 on the HO website, perhaps it is due to the pressure that has been applied by the Highly Skilled Group, the media and the number of cases won that has lead to it being published.

Here are a few of the extracts as to the new guidance. My advice is that if you have been refused under the “old” guidance, please get in touch either with me, one of the members of chambers or your lawyer to see what can be done, and if you have not been refused, again consult with your lawyer immediately in case they start refusing quickly.

Here are the relevant and potentially case winning aspects of the new guidance, I say case winning as given the complexity of Tier 1 and the HO’s view that people have been dishonest that a proper and full answer backed with evidence should be provided.

Crucially, the summary provides:

Summary:

page1image1700368

  • This instruction applies to all migrants whose most recent grant of LTR was Tier 1 (General).
  • All migrants whose most recent grant of LTR was Tier 1 (General) must be given and must

    complete a questionnaire.

  • For all refusals where data from HMRC is referenced;

    o Themigrantmustbeinterviewed.
    o A witness statement from HMRC must be obtained prior to the decision being made.Where the decision includes data from the bulk data-match from HMRC (on the available spreadsheet), you must ask HMRC to confirm this in the witness statements.

This is hugely important as previously under paragraph 19(k) the HO had a discretion to interview and I had a Judge recently question me as to whether all Applicants should be interviewed – as a matter of law. It seems that the HO now consider that the answer is yes.

This means that if called for an interview – its vital that you are prepared – again please see / consult an experienced immigration lawyer, one that specialises in paragraph 322 5 – I am running evening and weekend appointments to help – I understand the pressure of work and the difficulty of getting to a conference in the middle of the day or if there are childcare issues.

Consideration

When considering any application from Tier 1 (General) Migrants you should compare the amount of earnings claimed on the previous application(s) and compare this figure with the HMRC spreadsheet.

Please note:

  • Previously claimed earnings may fall across two tax years
  • The HMRC spreadsheet contains data from January 2015, the applicant may have submitted an amended tax return to HMRC after this date

What is important here is that the HO have regularly failed to pick up that earnings can fall over two tax years – the HO often just work from the April to April tax year without considering that Applicants can often have different tax years.

What is worrying is apparently the HO are working on material that is 3 years plus out of date. This is a further factor that needs addressing, ie an Applicant may have amended in October 2015 yet this will apparently not be caught by reference to the guidance, again stressing the importance of the guidance.

Credible or not?

Where you identify a discrepancy between the amount of income that an applicant has claimed to have earned on a previous application for LTR and the amount of income that an applicant has declared to HMRC you must establish if there is a credible explanation for this discrepancy.

Discrepancies with HMRC data are just one aspect of the genuineness assessment when dealing with applications from Tier 1 (General) Migrants. It is important to consider all other potential indicators that earnings may not be genuine, such as earnings which appear to go straight back outof a bank account, issues with an applicant’s educational or business experience, missing contactdetails on invoices or negative responses to invoice verification, etc.

What is worrying here is that I have seen letters where there is no consideration of whether or not a discrepancy is credible, no investigation has taken place.

Further more, as we have argued, and apparently now is accepted, HMRC data is but one factor to be considered, there are others, and that while the HO points to the negative, this can be turned around and also can highlight the positive, such as when and where a discrepancy was discovered, whose fault, were there any personal circumstances etc. Again the more information and better presented the better the chance of success.

In respect of Paragraph 19(i)(j) of Appendix A – often the HO uses the discrepancy as founding a refusal under paragraph 19(j) and then uses that as a basis for a refusal under paragraph 322 5. We have long argued that there are 9 factors to be considered in paragraph 19(j) and have often argued before the UT that the failure to consider all the relevant factors amounts to an arguable at least error of law.

It appears we were right, the guidance now provides that we are right and that in considering such a refusal it was incumbent on the decision maker to have regard to all the relevant factors. This is highlighted in the new guidance in the following emboldened terms:

In addition to Paragraph 19(j)(iv), you should still consider the other paragraphs within 19(j) even if there is no discrepancy with the data from HMRC.

The guidance goes further, along with our submissions that it is incumbent on the decision maker to seek to find out whether or not there is further information before making such a refusal:

Where there are any additional concerns (outside of a discrepancy between the amount of income declared to HMRC) it is also be advisable to interview the applicant to obtain a response/explanation from the applicant.

Conclusion

The new guidance reflects the arguments that have and are being run by me and other members of the Imperium Team, unfortunately, applications have often, particularly in JR proceedings, been refused simply because of a tax discrepancy – often where there has been no interview nor any chance for the applicant to provide an explanation.

Also I have seen numerous refusals where it said that “it is not credible” that an accountant would make a mistake even if reasons are given. This new guidance would appear to endorse the view that not only are enquiries to be made but that a tax discrepancy alone is not sufficient for a refusal.

It is also worrying that given that paragraph 19 and paragraph 322 5 are often intertwined that the Secretary of State has not followed the guidance in having regard to all the relevant factors under paragraph 19.

Where does this leave those who have been refused or those with outstanding applications? In my view the new guidance, and the recent reported case of R on the application of Khan v Secretary of State for the Home Department [2018] UKUT 384 undermines a large number of previous refusals both to grant permission and also to dismiss appeals.

I would advise anyone who has been affected to get in touch and arrange for a conference, either with me or another lawyer who has extensive experience in this field. In my view the disclosure of the new guidance opens the door to many more appeals / applications succeeding if they are presented properly. As I have mentioned I will be holding appointments in the evening and weekends should it be required or requested. I am also available to conduct conferences by phone or Skype (I obtained a grant of a Tier 1 visa by way of a JR with the Applicant living in Qatar).

Please feel free to contact me or any other member of the Imperium Team at enquiries@imperiumchambers.co.uk, clerks@imperiumchambers.co.uk or 020 7242 3488. I would also advise that if you are troubled or have been affected by paragraph 322 5 that action is taken as soon as possible as the Court is alive to the issue of delay and can refuse any application if it is not brought promptly.

Paul Turner is the head of Imperium Chambers and is a well respected direct access barrister and is licensed to provide legal services directly to the public as well as solicitors. I would also add as a post script that if you are a solicitor and have any such cases please drop me a line to see if I can help.

The next post will be on the review itself and the consequences of it on the entire paragraph 322 5 issue. I have deliberately chosen to look at the guidance as this will effectively be the law under which applications are being decided.