Court judgment decides Home Office policy of deporting migrants for tax discrepancies is legally flawed
What does the case of Balajigari v Secretary of State for the Home Department mean for migrants facing the hostile environment policy?
The top London immigration solicitors are delighted by an appeal court judgment, released on Tuesday the 16 April 2019 that criticises the Home Office process in using a national security-related paragraph of the Immigration Rules against working migrants as “legally flawed”. For migrants who are worried about submitting an application for Indefinite Leave to Remain, to extend a visa, switch to a new category of visa or are contemplating challenging a Home Office decision, the court judgment highlights how perseverance and getting specialist Immigration legal advice can pay off.
The court has ruled that the controversial use of paragraph 322(5) of the Immigration Rules to refuse settlement to migrants over tax discrepancies is “legally flawed”.
Paragraph 322(5) of the Immigration Rule was designed to tackle terrorism and protect national security but was being used by Home Office caseworkers to refuse settlement and Indefinite Leave to Remain applications from hundreds of people who had made amendments to their tax records.
The best London immigration solicitors say that, not surprisingly, many of the migrants who file and make changes to their tax returns are highly skilled migrants. These were the settlement applicants falling foul of the strict application of this Immigration Rule.
To the top London immigration solicitors, the Home Office use of an Immigration Rule, designed to protect the country against terrorists and their activities, against the very migrants that the UK government want to attract to the UK to settle and pay taxes was bizarre and, yet another example of the hostile environment at work .
How can OTS Solicitors help?
Are you are worried about the impact of the hostile environment on your visa extension, switch application or settlement application? Do you want to challenge a Home Office ruling? If so, you need specialist legal advice from top London immigration solicitors on your rights and options.
OTS Solicitors specialise in individual immigration and business immigration law. We take the stress out of making an Immigration application by giving you an honest assessment of the prospects of success and by completing the Immigration paperwork in a way most likely to navigate the Home Office rules and procedures. We are experts at challenging Home Office decisions by administrative review or judicial review proceedings.
Our visa and tribunal success rates combined with our Legal 500 ranking for Immigration law and Law Society accredited solicitor status as trusted specialists in Immigration law speaks volumes about why people chose to instruct OTS Solicitors.
For more information about how the experienced Immigration solicitors at London based OTS Solicitors can help you with your visa and Immigration application please call us on 0203 959 9123.
The case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673.
The court of appeal considered the application of paragraph 322(5) of the Immigration Rules in four cases and decided, in a 60-page judgment, that one decision should be quashed while the other three cases should be allowed to have appeal hearings.
The Home Office was criticised for:
• Making the assumption that if an applicant had made amendments to their tax records this was because of dishonesty;
• Failing to give applicants an opportunity to provide an explanation for any discrepancies on their tax returns;
• Not assessing whether the alleged dishonesty in completion of a tax return made the presence of the applicant in the UK undesirable or whether other factors outweigh the presumption in favour of removal, or give applicants the opportunity to raise any matters relevant to those questions.
The best London immigration solicitors say that many of the alleged “dishonest” tax affairs were little more than errors or carelessness by applicants and misunderstandings by Home Office and HMRC officials over accounting years and business procedures. However, the label or finding of “dishonesty” then enabled Home Office caseworkers to invoke paragraph 322 (5) of the Immigration Rules and find that it was “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact that he represents a threat to national security”.
The court has also given applicants who are threatened with the refusal of their Immigration application under paragraph 322(5) of the Immigration Rules a potential appeal route by saying that paragraph 322(5) must be subject to article 8 of the European convention on Human Rights. To top London immigration solicitors that means that if an applicant is given “notice of liability to removal” because their application for Indefinite Leave to Remain has been refused, the applicant may now be able to raise a Human Rights claim or apply for judicial review.
For the 70 other applicants pursuing paragraph 322(5) appeals, this court decision is the first step in their challenge process. It is a welcome one as whilst the court did not say that use of paragraph 322(5) of the Immigration Rules should be restricted to cases of national security, the court has given a very robust message to the Home Office. The ruling emphasises the need to allow applicants to explain discrepancies in tax information prior to Home Office findings of dishonesty being applied without opportunity for explanation and for Home Office caseworkers to:
• Allow applicants to submit more information about why their application should not be refused;
• Assess whether the applicant was dishonest, and if so, decide whether, even if dishonest, the applicant’s presence in the UK is undesirable;
• Assess whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons, for example Human Rights claims and right to private and family life.
To the best London immigration solicitors, it is the wider impact of the judgment that is the key message, namely the court’s finding that the general approach by the Home Office in earnings discrepancy cases has been legally flawed and should change.
This case and the robust judgment adds to the criticism of the Immigration hostile environment policy. The criticism is made at a time when there is increasing unease about the handling of the Windrush victims and the potential for a similar crisis to arise if settled status applications under the EU Settlement Scheme are not handled by the Home Office with care and respect for the individuals unwittingly caught up in the aftermath of Brexit.
How can OTS Solicitors help?
Are you contemplating making an Immigration application but are worried about how the Home Office will process your application? Have you received a Home Office refusal to an application? Do you need advice on a judicial review claim or Human Rights application and are confused by the Immigration Rules and procedures?
If so, please call OTS Solicitors on 0203 959 9123 for expert help from our team of Legal 500 recommended Immigration solicitors. We will be happy to help you address your Immigration law query.