The Minister for Immigration (Caroline Nokes)
I am today publishing a review of applications by tier 1 (general) migrants refused under paragraph 322(5) of the immigration rules.
The review responds to claims that hundreds of highly skilled workers—who entered the UK under this now closed route—were facing removal due to making minor errors in their tax returns.
Our review has examined 1,697 applications refused since January 2015. The discrepancies between the earnings declared to the Home Office and those shown by their tax records were over £10,000 in 88% of cases (1,490). The pattern of behaviour in amending tax records, often close to making a further Home Office application, was sufficiently unusual for HM Revenue and Customs to draw it to the Home Office’s attention.
Applicants were given the opportunity to explain these discrepancies. In many cases, having taken all the evidence and applicants’ explanations into account, we were not satisfied that these were minor tax errors as claimed, but attempts to misrepresent self-employed earnings, most likely for the purposes of obtaining leave or settlement in the UK.
Where the explanation given was not, in our view, satisfactory, applications were refused under paragraph 322(5). There has been some criticism that the use of this rule has been disproportionate. I want to be clear that we are not claiming these applicants are a threat to national security. Refusal under this rule covers a wide range of character and conduct issues and its use is appropriate in these types of cases where the evidence supports it (a point that the courts and tribunals have acknowledged).
The review has looked at litigation outcomes in both statutory appeals and judicial reviews. The picture here is mixed. Some courts and tribunals have accepted applicants’ explanations for discrepancies that the Home Office had previously rejected. Others, faced with broadly similar arguments, often around the role of applicants’ accountants, have supported the Home Office’s position. We look forward to the Court of Appeal providing clarity on some of these issues in upcoming hearings early next year and will consider in the light of these further rulings.
Aside from cases which have been allowed by the courts and tribunals, the review has identified 12 decisions which we intend to overturn, and a further 19 cases where we will seek more information from applicants before reconsidering their cases. The Home Office will contact each of the 31 individuals concerned to resolve their cases by the end of December. Errors of this kind are always regrettable, and I do not seek to minimise the impact that the error may have had on the individuals concerned. I will also ensure that the findings in this small minority of cases are used to inform our future decision making, to ensure that similar errors are not repeated.
Skilled migrants make an important contribution to our economic wellbeing and our society. The Government recognise the need to attract and retain them, and our immigration system will continue to do so. However, it is important that people play by the rules to preserve the integrity of the immigration system.
I will arrange for a copy of the review and accompanying guidance to be placed in the Library of the House and for them to be made available on gov.uk.
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