As a direct access immigration barrister I have been dealing with a lot of paragraph 322(5) cases, including but not limited to the following types of case:
- I have made an application by post / in person and realised that my tax figures were wrong and the Home Office have refused me and my Tier 1 application with only Administrative Review.
- I have made an application by post / in person and varied it to a SET LR or SET O application and been refused with a right of appeal
- I have made an application by post / in person having amended my tax figures first but without getting any reply – sometimes up to 9 months;
- I am thinking of making an application for ILR but know my tax figures were incorrect?
- I am thinking of making an application for ILR and have not thought about tax.
The answer to all of these are in how it is dealt with and where it is being dealt with. If they are refused, which is I guess the only time people come to see me it depends on whether they have a right of appeal or just JR.
If they have a right of appeal they have a better chance in my experience because they can explain the mistake.
I found out doing one case that 20% of Self Employed people get their tax wrong, that must by evidence also include 20% of migrants but I do not see the HO allowing 1 in five through, indeed given that it is migrants working with a strange tax system it is not surprising that there might be a higher proportion of mistakes made in this group than those who have been working years.
It is a strange but not unsurprising stance that UKVI refuse everyone I have seen even when HMRC the body charged with collecting tax has often not penalised let alone criminalised the migrant.
For this the first of a few articles I will give my experience as to what to do to the first group. They are probably the hardest case to win. This is because the only forum to challenge the decision is firstly by Administrative Review which is often a hard and unhappy experience and often rubber stamps the refusal and then by way of JR, the test there being much higher, i.e. was the SoS reasonably entitled to conclude that different figures meant dishonesty rather than actual dishonesty. A question remains in my mind whether the real question should be precedent fact.
The best that can be done in these case is to gather as much evidence to explain why the Applicant was unaware of the difference, a letter from a credible accountant accepting responsibility is often the best way forward. Also if there are personal circumstances it is best to utilise these. I have won cases where the person has had a letter from an accountant and also had a personal tragedy which took their mind off their tax and they had made good the difference and the year in question where they had claimed a high figure was not just in isolation but where they had regularly earned good money and it was the first year that the mistake was made.
Otherwise if there are any other mitigating factors they must be put forward either with the application or with the AR and not emerge just for the JR. A final tip for this group is that when doing the AR go and see a professional. Do not just do it yourself. Also because the AR is limited in words put in your best arguments not just the background as everyone knows it.
The next article will refer to those with rights of appeal who enjoy better prospects and how you or someone you know can try to aim for such a right. Should you have any questions please contact me or my team at Imperium Chambers, Paul Turner is a respected and experienced direct access immigration barrister and he is waiting to help pretty much any time. The contact details are on the front of the site www.theimmigrationbarrister.co.uk