Immigration applications and refusals on the grounds of section 322(5) of the Immigration Rules

By Oshin Shahiean, managing partner at OTS Solicitors  
 
Last week the Guardian newspaper reported on the case of Nisha Mohite. Ms Mohite reportedly specialises in the development of anti-cancer and anti-psychotic drugs. She had applied to the Home Office for Indefinite Leave to Remain in the UK. Her application was refused. The top London immigration solicitors will tell you that many Indefinite Leave to Remain applications are refused. So why was Ms Mohite’s case so newsworthy?   
 
Nisha Mohite’s case had featured in a government review of immigration applications that were refused pursuant to section 322(5) of the immigration Rules.  Last week she got Indefinite Leave to Remain after a government review determined that Ms Mohite was one of over 300 skilled migrants who the Home Office had refused immigration applications under paragraph 322(5) of the immigration Rules.
 
Paragraph 322(5) of the immigration Rules states an application for Leave to Remain should normally be refused where “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”.
 
In Ms Mohite’s case, her application for Indefinite Leave to Remain was refused because her former accountant filed an incorrect tax return. The error was spotted, an amended return submitted and the correct tax paid prior to the submission of the application to the Home Office for Indefinite Leave to Remain. Nonetheless, the Indefinite Leave to Remain application was refused on the catch all provisions of section 322(5) of the immigration Rules. To Ms Mohite the refusal reportedly had devastating consequences, including the loss of her job and home and the stress of a two-year wait to see if she would eventually secure Indefinite Leave to Remain.
 
How can OTS Solicitors help?  
 
OTS Solicitors are experts in individual and business immigration law. A leading legal directory, Legal 500, recognises our immigration expertise.
 
At OTS Solicitors, we recognise the toll that the refusal of an immigration application can make on an applicant and their family. If your immigration application has been rejected or refused, it is vital that you have expert advice on your administrative review or appeal options.
 
Please call OTS Solicitors on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help you.
 
Section 322(5) of the immigration Rules
 
top London immigration solicitors have long been critical of the Home Office use of section 322(5) of the immigration Rules to refuse immigration applications. This was because section 322(5) of the immigration Rules appeared to be used by the Home Office in a draconian way, refusing applications by highly skilled tax paying migrants without putting the conduct of the migrant into context or listening to the explanation. 
 
Many of the best London immigration solicitors will report dealing with the applicants who have sought legal advice after the refusal of an application for Indefinite Leave to Remain under section 322(5) of the immigration Rules. This is often because the Home Office alleges the migrant had inflated either their salary or income to gain entry clearance to the UK or had reduced their income in tax returns to pay less tax. These problems arise because of discrepancy in the information supplied to the Home Office by the applicant and the information held by HMRC on the applicant. Using the discrepancy and section 322(5) of the immigration Rules the Home Office would refuse the immigration application by saying that the conduct meant it was undesirable to permit the applicant to remain in the UK.
 
However, top London immigration solicitors will tell you that section 322(5) of the immigration Rules is a discretionary clause. The Home Office policy states that the section should only be used when the migrant’s conduct is on a similar level to “criminality, a threat to national security, war crimes or travel bans”.
 
Review of section 322(5) of the immigration Rules 
 
In November 2018, the government released its review into the use of section 322(5) of the immigration Rules and cases submitted between January 2015 and May 2018. According to the government, the application error rate was about 2%. Those who have been highly critical of the use of section 322(5) of the immigration Rules, including the Guardian newspaper, assert that the draconian section 322(5) and the Home Office manner of use of the section have affected many applicants. 
 
The media and the best London immigration solicitors would not have called for the review or have been critical of the use of section 322(5) to refuse immigration applications if it had appeared that Home Office caseworkers were carefully assessing information held on applicants. However, in the view of sections of the media and immigration support groups, the Home Office were not analysing the reasons why there were discrepancies in information held by the Home Office and HMRC. For example, in some cases, the use of legitimate accounting practices and year-end timing accounted for any “discrepancy” in information held by government departments.
 
Tax discrepancies and the use of section 322(5) of the immigration Rules
 
Some may question why these “tax discrepancies” came about but top London immigration solicitors would say the explanation lies in the fact that many of the applicants who were refused immigration status under section 322(5) of the immigration Rules were people with old style visas in the Tier 1 (General) category wanting to settle in the UK.
 
Tier 1 (General) was for skilled migrants, who were able to take up Employment or self-Employment in the UK without a sponsor. The combination of well-paid incomes and / or self-Employment inevitably led to some HMRC issues and differences in information held by HMRC and the Home Office. Although this route to settlement closed in April 2018, there are still many pending applications for Indefinite Leave to Remain and pending reviews and appeals. There are also many applicants pursuing settlement after a Tier 1 (General) visa based on ten years’ continuous lawful residence in the UK.
 
Challenging refusals under section 322(5) of the immigration Rules
 
The top London immigration solicitors advise that there are pending test cases on the use of section 322(5) of the immigration Rules to refuse immigration applications.
 
If your application has been refused then your legal right to challenge the refusal of your application because of the manner of use of section 322(5) of the immigration Rules will depend on the nature of your immigration application.
 
If you applied to the Home Office for Indefinite Leave to Remain based on a five-year residence under a Tier 1 (General) visa you will usually only have a right to an internal administrative review by a Home Office caseworker. Those who applied based on ten years’ lawful residence may have a Human Rights application resulting in a right of appeal, unless their application is “certified as clearly unfounded”.
 
However, the best London immigration solicitors will tell you that your options and challenges do not end there. If an applicant is given a right to an administrative review, but the migrant believes they raised Human Rights arguments in their application, they can still ask the First-tier Tribunal to consider whether they have a right of appeal. Other applicants may be able to try to adduce new evidence, for example of Human Rights claims. Alternatively, an applicant could change the application to a ten-year application if they have now met the ten-year residence requirement. 
 
What is clear to the best London immigration solicitors is that the reporting of cases such as Nisha Mohite by the Guardian newspaper really assist in drawing attention to the Home Office use of section 322(5) of the immigration Rules. This media attention can only be a good thing for other applicants and for top London immigration solicitors who are continuing to work with applicants to challenge the rejection or refusal of Indefinite Leave to Remain applications.    
  
How can OTS Solicitors help? 
 
OTS Solicitors are specialist in immigration law matters. The firm is recommended for immigration law in the Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in immigration law. 
 
As experts in immigration law, we can answer all your immigration concerns and help you if you need to challenge a Home Office decision. For advice on any aspect of immigration law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help.
 

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