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
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?
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.
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”.
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.
(General) was for skilled migrants, who were able to take up 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
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
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.
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
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.