Good character refusals – applications on hold
By Vishal Makol of OTS Solicitors
As we highlighted in a recent blog our team of top London Immigration lawyers has been concerned for some time at the use of paragraph 322(5) of the Immigration Rules, particularly in the context of refusing Indefinite Leave to Remain to those on the Tier 1 General Route. We’re pleased to hear that as part of the wider repercussions of the Windrush scandal, the Government is taking steps to review the use of paragraph 322(5) in respect of the Tier 1 General route and 10 year Long Residency route.
Paragraph 322(5) – what does it mean?
Paragraph 322(5) is one of the ‘general grounds for refusal’ included in the Immigration Rules. In particular, it allows an application for Indefinite Leave to Remain in the UK to be refused based on
“…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.”
The use of paragraph 322(5) has come under particular scrutiny recently because it has been deployed in a number of cases where highly skilled migrants applying for settlement on the back of a Tier 1 General visa have appeared to present with discrepancies in their tax records. In many cases, it seems that the discrepancies may be down to differences in reporting periods between the HMRC for tax purposes and UKVI for visa/settlement purposes. In many cases, the anomalies and subsequent corrections that have caused UKVI to refuse the Indefinite Leave to Remain may be permissible under HMRC rules on tax reporting.
Paragraph 322(5) should not be used systematically
A key issue for any Immigration solicitor acting for a client seeking Indefinite Leave to Remain is to understand that paragraph 322(5) is a discretionary ground for refusal. The UKVI case worker dealing with the application for Indefinite Leave to Remain does not have to turn down the application. Instead, the circumstances should be looked at and the application decided on its merits. Paragraph 322(5) should not be used systematically.
Tax discrepancies do not warrant the use of paragraph 322(5)
In addition to the fact that refusal is discretionary under paragraph 322(5), it’s arguable that tax discrepancies fall outside the scope of this provision altogether. The guidance on the use of paragraph 322(5) explains that
“The main types of cases you need to consider for refusal under paragraph 322(5) or referral to other teams are those that involve criminality, a threat to national security, war crimes or travel bans.
A person does not need to have been convicted of a criminal offence for this provision to apply. When deciding whether to refuse under this category, the key thing to consider is if there is reliable evidence to support a decision that the person’s behaviour calls into question their character and/or conduct and/or their associations to the extent that it is undesirable to allow them to enter or remain in the UK. This may include cases where a migrant has entered, attempted to enter or facilitated a sham marriage to evade Immigration control.”
The type of tax discrepancies being cited as the reason for refusing Indefinite Leave to Remain seem to fall far short of “criminality, a threat to national security, war crimes or travel bans”. It might also be argued that paragraph 322(5) is the wrong ground for refusal, and UKVI should use provisions relating to the provision of false information to obtain leave to remain.
Neither of these arguments has so far succeeded on its own account in challenging the refusal of leave to remain.
Review of the use of paragraph 322(5)
It seems that we may now see some changes to the way paragraph 322(5) is used at least in connection with Tier 1 General applications for Indefinite Leave to Remain. Along with other top Immigration solicitors in London, we welcome the recent news of a review. As recently as 21 May, Home Office minister Caroline Nokes said that there was “… insufficient evidence to suggest there is any systemic problem which may lead to wrongful removals for this group”, but this will be addressed in the review announced on 25th May 2018. Home Secretary, Sajid Javid, wrote to Yvette Cooper, Chair of the House of Commons Home Affairs Select Committee to confirm that
“… all applications potentially falling for refusal under the character and conduct provisions of paragraph 322(5) in the Tier 1 (General) ILR and 10-year Long Residency routes, where the applicant had previously been in the Tier 1 (General) route, have been put on hold pending the findings of the current review”
The Home Office is also checking case records to establish any applicants applying for Indefinite Leave to Remain under the Tier 1 General route or 10 year Long Residency route on the back of a Tier 1 General visa, who were refused and have been removed or departed voluntarily.
What should you do?
The Tier 1 General visa route is now closed, but many people are still awaiting the outcome of their settlement applications based on a Tier 1 General visa. It can be a worrying time, particularly if you are concerned that your application may be refused for tax discrepancies. It’s vital that you obtain advice from a UK Immigration lawyer with a successful track record in challenging refusals under paragraph 322(5). The team at OTS will be happy to help you.
If you are looking for an Immigration solicitor in London, our team of expert Immigration lawyers can help. OTS Solicitors are recommended in the Legal 500 for Immigration and Human Rights and we have many years’ experience handling all aspects of Immigration law. For an appointment to talk to some of the best Immigration lawyers in London, call 0203 959 9123.