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As a direct access immigration barrister working across England and Wales I am shocked by the continued number of refusals that I encounter in respect of paragraph 322(5).

Fortunately, this is an issue that is now gathering some press attention, due in no small part to the Highly Skilled Group who are working hard at overturning / challenging this Rule and with whom I have had the pleasure of working with its members.

That there is a greater public awareness is surely coming from the press attention in respect of this particular issue.

In the last week or so I have been interviewed by the Daily Telegraph which carried a detailed article highlighting the suffering caused to members and then yesterday by Radio 4 of the BBC and in particular their money program.

What is striking is that while there is a great deal of awareness as to the unfairness that has been happening the legal side of the issue remains clouded in, in my view, some obscurity and therefore leads to a fair degree of unfairness.

At the heart of the problem as I see it is, has been the decision to essentially punish people under the wrong rule and to cause undue and unmerited suffering to a great many innocent individuals, in essence people are being subjected, for mistakes often made 6 – 8 years ago, to a form of double jeopardy that does not apply to United Kingdom nationals.

Firstly, I note, and this is from what I have been told, that any deviation on what are quite old tax forms are being subjected to “discretionary” notwithstanding the amount, how long ago the discrepancy was, whether it was the fault of an accountant, whatever the explanation is and perhaps more importantly whether the individual has corrected the error.

Given that paragraph 322(5) is a discretionary refusal I would have expected to see or hear of some cases where people have been granted leave to remain notwithstanding any historic errors. I will update this blog if I hear of any applications that are approved but at present paragraph 322(5) of the Immigration Rules HC395 (as amended) seems to being applied as a blanket policy.

This reminds me of the old s.21 of the Immigration Act 1971 (this section no longer being in force) whereby individuals who had lost their application could request that their case be reconsidered.

After many many refused applications I recall a judicial review application being lodged whereby information was sought as to exactly how many cases had been reconsidered since the implementation of the Act. This I recall was in the late 1990s. One might have expected there to be a reasonable number of reconsiderations. However, after much prodding it appeared that notwithstanding this section being law it had never been applied leading to some embarrassment to the Secretary of State.

It is my view that this is essentially happening again. This is clearly a matter I am seeking to argue in the numerous cases that I am being presented with.

What is more upsetting is that while it is a discretionary refusal the only factor that any weight is given to is the difference in tax figures, which often leads to families that have lived in the UK lawfully for, in some cases 10 years or so, being told to leave. What is distressing is that a number of these cases engage the rights of children, both those who are very young and know no other life other than the UK and those who are studying for exams, a highly stressful time for any child let alone their family. Additionally, I have had clients who have lawfully established businesses and bought homes and now face going home in disgrace.

What strikes me as odd about these refusals is that in my view the Secretary of State continues to use the wrong Immigration Rule. The Secretary of State is in effect stating that the individual is or has been dishonest. There is a specific rule paragraph 322(1) which states that the Secretary of State must refuse the applications where there is evidence of dishonesty (see previous “block” refusals such as TOEIC, IT Verticals and the Cambridge College of Learning (“CCOL”) cases.

Given that the Secretary of State is essentially alleging dishonesty it would surely be easier to refuse under this Rule.

There is however a problem for the Home Office if they so do. This is that the burden of proving dishonesty falls on the Secretary of State to show dishonesty as opposed to the Applicant proving their innocence.

However, by refusing under paragraph 322(5) the Secretary of State shifts the burden onto the Applicant to illustrate that they should be allowed to stay and as noted above, no matter what excuse is offered it always seems to lead to a refusal.

Having some knowledge of the Home Office and how it works it seems that someone in a “policy” unit has chosen to apply this rule because it makes it easier for the Secretary of State to effect a refusal and removal. It is to be remembered that the Home Office has a stated policy of seeking to reduce the number of migrants to tens of thousands as opposed to hundreds.

I will update readers when I find out more.

Paul Turner is a highly regarded direct access immigration barrister and the head of Imperium Chambers who has and continues to fight vigorously for the rights of all his clients. If you or a member of your family have a concern relating to immigration, or generally seek advice please feel free to contact me or the dedicated team at Imperium Chambers.

Paul also takes instructions and is happy to advise solicitors who have clients caught in this unfortunate position.

If you have been effected by paragraph 322(5) or are thinking of making an application for ILR please feel free to get in touch with us and we will do all we can to help at Imperium Chambers, all you need to do is call 020 7242 3488.

Paul Turner is a highly regarded direct access immigration barrister licensed to provide immigration services to the public by the BSB. He brings a fresh and innovative way of looking and seeking to solve problems and has helped many people achieve their dream of settling in the UK. If you have a problem there is no need to delay please feel free to get in touch.

Feel free to call and book a conference on 020 7242 3488. We look forward to seeing you at Imperium Chambers.