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As a direct access barrister practising immigration from London for the last two decades or so there are always fads or matters that come up the last few that spring to mind are

  1. HSMP Ltd
  2. Iraqi hidden policy
  3. AUKPSC and the discrimination between private and public schools;
  4. Toeic – English language; and
  5. Tax and the differentials

I have had a number of clients whose cases I have won and some currently fighting where due to mistakes made over 5 years ago face removal.

These are cases where the HMRC and the figures provided to the UKVI were different. The problem being that while the HMRC are content to either charge interest or give no penalty the Secretary of State has considered that these individuals should be refused leave to remain under paragraph 322(5) of the Immigration Rules HC395.

The great benefit for the government is that 322(5) is discretionary.

This results in two different frameworks, one where there is a right of appeal and I with my client’s help can show that the client made a mistake relying on an accountant and where if credible the Judge will allow the appeal and JR where the burden is on the Applicant to show that the SSHD has been Wednesbury unreasonable.

This is very difficult absent evidence to support the Applicant to show. Indeed an appeal that would almost certainly win if it was before a reasonable FTJ is going to struggle to show an UTJ it was unreasonable.

The reason for this is that the wording of paragraph 322(5) is very loose. It says:

“(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security;”

It is hard to see how someone who does not meet 322(1):

“(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules.

(1C) where the person is seeking indefinite leave to enter or remain:

(i) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or
(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or
(iii) they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or
(iv) they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.”

It is hard to see how an individual, who may well be a Dr, there are stories in the press of Drs in hospitals where there are shortages having to deport Drs, probably as a result of a tax error, being a threat to national security.

It is hard to see how an Applicant can, in JR proceedings, persuade a Judge that they made an innocent mistake or relied on a professional outside their field that the decision is unreasonable.

Perhaps this rule has been chosen as it offers everything to the Home Office yet nothing to the Applicant.

I have seen Freedom of Information Requests where the government has refused to answer how many people have been granted under 322 (5), remember it is discretionary, and how many refused.

What makes it odder is that the guidance for 322(5) is as follows:

Official sensitive: end of section

 

When it is undesirable to give an applicant leave to remain in the UK because of their character or conduct or associations, you must consider whether you need to refer the case or refuse it under paragraph 322(5).

Before you refuse leave to remain under paragraph 322(5), you must first refer your decision to your senior caseworker.

You must:

  • give specific reasons to refuse under this paragraph
  • not include vague generalisations about a person’s character, conduct or associations
  • only refer to the specific reason you are refusing the application
  • not refer to a threat to national security in your refusal noticeWhen a case falls into one of the above categories, you must consider it in line with the guidance in this section, regardless of whether the application is valid or not. However, when you consider such a case, you must only take into account information which is new and was not known to the Home Office at the time of any previous decision. You must not
 

take action on information which was known to the Home Office at the time of the previous decision, unless advised to by a senior caseworker.

 

Official sensitive: start of section

It is quite clear that there is no real guidance as to the guidance that is to be applied, it can hardly be seen that a tax discrepancy can amount to a threat to national security if there is a tax discrepancy of £100 or £200 pounds.

I would like to say that there is a figure but it is hard to see that there is any meaningful guidance as it all seems to be redacted. Essentially the SSHD has issued guidance to her caseworkers but kept it hidden from the public, the very people who it effects, people, such as Drs who could be saving lives one day and asked to leave the country the next on the basis of someone’s else’s error of 5 plus years ago.

There also seems to be a general opacity as to the number that succeed at Admin Review.

I am reminded of the case of the old s.21 of the Immigration Act 1971 which stated that if you lost everything you could ask the Home Office to reconsider. After many applications that met with loss a JR was lodged and it was asked how many over a 20 year period if my memory serves me rightly, were granted.

Guess the answer?

20 years of having a statutory scheme to allow people to ask for reconsideration. 50%, 25% 10% 5% no if my memory serves me correctly the figure was either zero or as close as to make no difference. This is from memory so maybe the HO were regularly changing their mind but I do not recall that as being the outcome.

It seems we are back to the same situation where the SSHD is using litigation designed to prevent terror to remove people who have made no more than a mistake or relied on a professional.

There is a rally next Tuesday to protest this draconian, in my view, use of a discretionary power. I will post more as the rally comes closer.

If you have been effected by this please get in touch, there are ways in which you can lawfully attempt to defeat this Rule or at least give you and your family the best chance of winning. The sooner and fuller you act the better.

The one thing you cannot afford to do is not seek professional legal advice. Please go to someone who fights these cases on a regular basis and who is committed to winning.

As to the above cases

  1. HSMP succeeded. They ran a well organised campaign
  2. The hidden policy lead to the historic illegally litigation and people being given ILR;
  3. AUKPSC – this case half one – Tier A schools were given an allocation, the litigation was ultimately settled;
  4. Toeic – it continues – but the Court has made it clear that it is on a case by case basis and that if you have an appeal you have a better chance of winning; and
  5. The ongoing Tax issue again depends on preparation and the quality of your lawyer coupled with the original error.

Please please get in touch with me or with another reputable lawyer, one who preferably works for clients and has their best interests at heart. I am working late and weekends if it helps as I understand that some people are struggling to see lawyers.

If I can help, I will. I also have a team of 4 people who are dedicated to achieving the right result. Today was a good day as one of my longest clients got their British passport.