Immigration and tax returns – latest court of appeal guidance
Most people assume that immigration solicitors don’t have a lot to do with tax but that is where you would be wrong. Increasingly Home Office officials are looking into your UK tax affairs when considering settlement and Indefinite Leave to Remain applications. A recent case Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157 has highlighted just how important it is to keep your tax affairs in order if you want to apply for Indefinite Leave to Remain.
Indefinite Leave to Remain solicitors
If need advice about an application for Indefinite Leave to Remain or if you’ve had your application for leave to remain application refused and want expert advice about your best UK settlement options then call London based Indefinite Leave to Remain solicitors on 0203 959 9123 and speak to one of our experienced ILR solicitors or complete our online enquiry form.
Immigration and filing late tax returns
In the case of Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, the court of appeal was asked to consider the refusal by the Home Office to grant Tahir Yaseen Indefinite Leave to Remain status. His application had been refused on the grounds of conduct.
The court of appeal decided that in order for the Home Office to refuse Mr Yaseen’s Indefinite Leave to Remain application on the basis of either his character or conduct a balancing exercise had first of all got to be conducted. That exercise should involve an assessment of both the positive and negative considerations of the individual Indefinite Leave to Remain applicant’s characteristics.
What had Mr Yaseen done that was so serious that the Home Office had refused his ten year lawful residence ILR application on character grounds resulting in first tier and upper tier tribunal cases followed by a court of appeal hearing? The answer is that he filed his tax returns late. So late that in actual fact the tax returns were not filed until Mr Yaseen had received notification that he had been called to a Home Office interview in respect of his ILR application.
In earlier reported Immigration tax cases, Indefinite Leave to Remain applicants are said to have submitted inconsistent information to HMRC and the Home Office or have been dishonest in some aspect of either their tax return or Home Office ILR application. However, Mr Yaseen did not declare different incomes to HMRC and the Home Office but simply failed to submit three years of tax returns until after he submitted his ILR application and was called for an interview by the Home Office.
The Home Office refused the ILR application using paragraph 322(5) and paragraph 276B (ii) of the Immigration Rules. In Mr Yaseen’s case paragraph 276B was the crucial paragraph as it states that:
(ii) Having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account…his personal history, including character, conduct…
Whilst a refusal of an Indefinite Leave to Remain under paragraph 322(5) of the Immigration Rules on the grounds of conduct requires an element of dishonesty on the part of the ILR applicant there is no requirement to find there was dishonesty before refusing an ILR application under paragraph 276B of the Immigration Rules. In addition, the court of appeal held that the earlier case law on Immigration and tax discrepancies doesn’t apply to ILR application refusals under section 276B.
Where does the case of Mr Yaseen leave Indefinite Leave to Remain solicitors and applicants for UK settlement?
Tax and Immigration applications – how to prepare for an ILR application
If you want to apply for ILR but know that there is potentially going to be an issue with your tax filing history (either late returns or HMRC investigations or apparent inconsistencies or use of tax schemes) then the best tips are:
• Get expert legal advice from Indefinite Leave to Remain solicitors before submitting your ILR application – they can advise you on the content of your application and the timing of it
• Make sure that both you and your ILR solicitor understand the tax issues. That may involve speaking to your accountant or getting tax advice. If the tax issue is fully understood it may become irrelevant (for example if there is thought to be an inconsistency or discrepancy between your Home Office application form and your tax return form but in actual fact there isn’t as the two forms cover different accounting periods)
• If there is a genuine tax issue then your Indefinite Leave to Remain solicitor can assess your prospects of success and help you collate as much positive character evidence as possible to help the Home Office in its assessment under paragraph 276B and its conduct of the balancing exercise of any positive and negative factors relating to the ILR applicant’s character.
With any Indefinite Leave to Remain application preparation and attention to detail is the key to a successful decision. However, when you know that there are either current or historical tax issues that may be raised by the Home Office, your best chance of securing ILR is to look at the character test applicable to your case and work with your ILR solicitor on providing as much good quality supporting evidence on the positive character traits to outweigh any Immigration tax issues.
Indefinite Leave to Remain solicitors
If you need advice about your Immigration application or Indefinite Leave to Remain application or your appeal against a refusal because of your tax history then call London based OTS Solicitors on 0203 959 9123 and speak to one of our experienced Immigration solicitors or complete our online enquiry form.
OTS Solicitors are experts in immigration law. The Immigration solicitors have substantial experience in applications for Indefinite Leave to Remain and in challenging refusal of ILR applications and visa appeals in complex cases.
London based OTS Solicitors are Legal 500 and Chambers Guide to the Legal Profession recommended Immigration lawyers and have Law Society accredited solicitor status as trusted specialists in Immigration law.