As a direct access immigration barrister based and practising in London and England and Wales I have had a lot of clients recently come to me who have been refused on the basis of discrepancies in their tax returns / HO declared fees. These are very hard cases to win where there is no appeal and hard where there is.
I had a case today where the client had a discrepancy in excess of £25,000. There were factors in his favour and that were in the Secretary of State’s knowledge. The Home Office sought to rely on a case that showed that 322(5) required a fair balancing act and that when the decision was looked at you could not challenge it as there was no provision to submit new evidence / material.
I got round this problem by highlighting that in conducting a fair balancing exercise it was necessary for the SSHD to look at documents available to her and those reasonably available to her, i.e. it was not enough to find material that was adverse the Applicant where she had, arguably at least, evidence that supported the Applicant.
The Judge was clearly sympathetic but raised the point that the Administrative Review process did not allow knew material to be admitted in paragraph 322(5) decisions even if it helped and even if the consequences were harsh. The arguable point was where there was evidence available to the Home Office and she had either overlooked it or not asked for it and had earlier granted extensions of leave it was only right that the Court look at what was in the AR and submissions on the basis that this material was not new.
The Judge stopped me in my reply and indicated that my submissions had persuaded him to grant permission.
I know that this is an issue that troubles a lot of clients. I can understand why. One minute you think you will have ILR and then be able to apply for a passport and the next you are accused of dishonesty and banned from coming to the UK and perhaps with an obligation to disclose this on any future applications to other countries.
This was an excellent and fair result from an experienced Judge. It took over an hour of intense argument before success.
If you or a family member have a paragraph 322(5) of the Immigration Rules HC395 (as amended) refusal with or without a right of appeal and want help or even a second opinion please feel free to get in touch with me and I will do my level best to get the decision overturned.
I have had several Tier 1 cases where rather than the HO reconsidering that she grants ILR, I cannot predict that this will happen here, though if it did it would be a fair outcome.
It is far better if you have a problem to get in touch either prior to making the application or prior to any refusal. Immigration is stressful and Paul understands this and is here to help
Paul Turner is an experienced and highly regarded direct access immigration barrister also licensed to practice litigation and has a team of 4 to help make any problem appear its true size. He is the head of Imperium Chambers, a boutique, possibly the first, set designed to help direct clients who do not want a solicitor and who want direct access with a barrister who was called in 1998 and has been practising immigration since 1999. I am also a member of the excellent set of Tony Metzer QC, Goldsmith Chambers, based in the Temple.