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As a direct access immigration barrister practising across England and Wales I have been heavily engaged with working on paragraph 322 5 refusals and have actively been supporting the Highly Skilled Migrant group, attending meetings and providing written advice as requested. 

I have often commented on the lack of a published policy in respect of tax cases and the manner in which discrepancies have or are handled. I have commented on the failure by the Secretary of State to carry out proper enquiries before deciding to invoke paragraph 322 5 and indeed whether paragraph 322 5 is the right rule. Indeed I have seen cases from 2015 where the refusals were under paragraph 322 (2), so something must have changed. Those who follow my views and comments will note that a degree of scepticism in the decision to switch from paragraph 322 (2) where the burden to the higher civil standard applies and is for the Secretary of State to discharge to the discretionary rule paragraph 322 5 where it is for the Applicant to satisfy the decision maker that the decision was wrong.

I am also fortunate to be working with some of the other leading players in the paragraph 322 5 cases, Jay Gajjar and Kareesha Turner, both of whom are from Imperium Chambers, please see my next blog as to how we can help you on an individual basis.

However the purpose of this blog is to bring those who read me up to speed on the much talked above “review” of paragraph 322 5 refusals.

Turning to the developments in respect of the overall approach. Any reader of my blog or articles will be aware that the Immigration Minister Caroline Nokes MP and the Secretary of State for the Home Department have been promising a review of all 322 5 refusals and that there would be no more refusals pending the outcome of the review. 

This review was supposed to be completed by the end of May 2018, then June 2018 then there was a letter of 21 August 2018 which again talked about the review.

However, the breaking news, if it can be called that, is that Caroline Nokes MP has now stated that the review has been completed. She has stated that the report will be “comprehensive, covering how the policy for handling these applications has evolved…

At this point, I note that it would have been good if practitioners and more importantly clients and those affected by the “policy” were aware of what it actually was. I have often written about the lack of a published policy and have often advanced the argument that where there is no published policy any decision is arguably flawed as the individual will not know if their case has been properly considered against it.

Also her letter makes reference to the fact that some 1700 cases have been reviewed and that a report will shortly be issued.

I eagerly await the report and what it says, I hope it does not just set out the number of refusals and amounts but also includes the number of cases won at appeal, substantively at JR and those JRs where the Secretary of State has conceded either prior to or after the grant of leave. I recall one client, who after I had lodged JR proceedings being granted ILR without the need for the Court to become involved. I was very happy for the client but deeply disappointed as to the delay in the making of the decision.

I am also advising clients to seek confirmation that there case has been reviewed and for copies of any such review. Now we know that the review is complete there can surely be no excuse for disclosing such information, indeed I would contemplate seeking disclosure through the Courts if required. I hope that the review is not merely a “tick box” approach – indeed during one hearing I was shown what was purported to be a review, but in reality only amounted to personal details and whether there was a tax discrepancy, there was certainly no reasoning and certainly no conclusion.

I will update further as soon as I receive any further information, please do not hesitate to get in touch if you or a family member has been affected by paragraph 322 5 or indeed any other immigration matter, sometimes all that is required is a conference in order to put a client’s mind at rest that their case is being handled properly and on occasion it gives the client the chance, before it is too late, to rectify any shortcomings, submit additional evidence / representations.

Paul Turner is a highly regarded direct access immigration barrister who is the Head of Imperium Chambers 2 Selkirk Road London SW17 0ES and who is licensed to provide direct legal advice and to litigate to member of the public. Please feel free to call on 020 7242 3488 or email clerks@imeriumchambers.co.uk