Immigration Rules: Paragraph 322(5)

Debate between Stephen Doughty and Alison Thewliss

Wednesday 13th June 2018 Westminster Hall

[Alison Thewliss]

Absolutely. That is why there needs to be a proper and thorough inquiry into the use of the provision. If Home Office staff are being advised to use it as a means of refusing people, they are clearly not looking at the full implications or the possible long-term impact.

My constituent Omer was refused leave to remain on the basis that he had deceived the Department, which goes entirely against all the evidence that he provided. Furthermore, HMRC has written to Omer to say that its staff are satisfied that he has acted honestly and not tried to deceive anyone.

Mustafa Ali Baig also travelled to the UK to study in 2006. He obtained master’s degree in international marketing from the University of the West of Scotland in 2009. Mustafa and Omer have a lovely picture of the two of them graduated—two young boys with all their lives ahead of them, and Omer certainly is almost unrecognisable from that picture, given the stress he has been under lately.

Before coming to the UK, Mustafa obtained a bachelor of law degree at the University of the Punjab, and he has master’s degree in political science. He has worked in business development, marketing and public relations, and has undertaken voluntary positions for civil rights and social action groups. He also volunteers to run a current affairs radio show. He is very much part of the Glasgow community, and he has gone above and beyond to advocate for his friends.

As far as I am aware, there is no question as to Mustafa’s integrity, but, due to that immigration rule, as the hon. Member for Ealing Central and Acton (Dr Huq) has just pointed out, he has been told that he is a questionable character and a threat to national security—as a result of correcting a small error on his tax return in 2010. That is no basis on which to remove someone in such a way. His case goes to the immigration tribunal on 20 June—that proves that decisions on such cases are still being made, despite what the Home Secretary has said.

Mr Sanjeev Pande travelled to the UK in 2005 on a student visa and graduated from Glasgow University in 2008. He started his own IT business and was also employed as an IT consultant and project manager—a lucrative career. Most recently, he had been leading an IT project for a bank in Scotland, before his right to work was removed by the Home Office.

Mr Pande applied for ILR—indefinite leave to remain—under long-term residency rules in 2017. He had been in the UK for 12 years at that point. He hired an accountant, but his tax return submissions were subsequently questioned by the Home Office. As a result, Mr Pande made attempts to change his accountant and to rectify the errors, but the Home Office has continued to pursue him on the basis that officials believe him to be dishonest.

Most distressingly, Mr Pande was detained at Heathrow airport on his return from a family holiday in 2017. His passport and BRP—biometric residence permit—were confiscated by immigration officers, removing his right to work. That has a huge impact on the family finances, because he has a mortgage and other commitments. Judges found in his favour at both first-tier and upper tribunals. Indeed, paperwork from the first-tier tribunal states that in some detail—it is a long quote but it is worth putting it on the record—with the judge saying:

“The refusal letter is I think confusing in itself in relation to the Appellant’s income, but I have to say that I found both the Appellant and his wife to be credible witnesses. I do not think that they have acted dishonestly. The Appellant relied on the advice of an accountant. He was entitled to rely on that advice and whilst he is under a duty to check information, it is entirely unfair to expect him to have a level of accountancy and tax knowledge accorded to professionals in this field... He was clear that he sought clarification from the accountant but eventually, when he was unable to get satisfactory answers, he changed accountants… It also appears to me that the Appellant was unfairly treated by the Home Office. His passport was retained during the first appeal proceedings. As a result he was unable to find employment since employers refused to employ him without the benefits of his passport. He was, I think, therefore prejudiced and I consider that this matter should be taken into account in the question of proportionality.

Taking all of the above into account, therefore, I do not consider that the Appellant has acted dishonestly. He may have been misguided, but that is a different matter and I consider that it would be disproportionate in the circumstances to expect the Appellant and his wife to leave the UK, particularly as they own property in the UK, they pay tax in the UK and they have spent a considerable number of years here.”

The last case I want to highlight is that of a female constituent—I do not want to name her, because her children are at school in my constituency. She travelled to the UK from Nigeria and has been refused leave to remain in similar circumstances to the others, under paragraph 322(5) of the immigration rules. She legitimately made changes to her tax return, but the Home Office is again putting forward the argument that she has tried to deceive the Department and it has refused her an administrative review.

My constituent is a qualified accountant, and has been unable to continue seeking work in her field as a result of the status imposed on her by the Home Office. She has been made destitute as she has no recourse to public funds—many on tier 1 have no such recourse.

My constituent has been to my office to seek help in getting school uniforms for her children. Unable to work, she is struggling to keep her family afloat, and there is a real risk that she and her children will be made homeless as a result of the Home Office decision. Her landlord, the Wheatley Group, confirmed only yesterday that, due to the support of her church paying her rent, it was not to proceed with legal action to evict her at this point, but that option remains open. I am extremely grateful to the Wheatley Group for the discretion it has shown, but the situation is not sustainable—my constituent needs to get back to work.

The issue has been considered by the Select Committee on Home Affairs, and the Home Secretary corresponded with its Chair, committing to put all 322(5) applications on hold and to carry out a review by the end of May. As far as I can ascertain, that review has not yet been published and no further detail on it is available, although as I said in connection with my constituent Mustafa, 322(5) decisions are still being made.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I congratulate the hon. Lady on securing this debate, and I apologise for missing the first few minutes of it due to business in the main Chamber. She is absolutely right that the Home Affairs Committee, on which I sit, is still not clear where the Government are going on the matter. Does she agree that this scandal shows the wider systemic problem in the Department, as we have seen through Windrush, this immigration rule and a series of decisions being made wrongly when there is a hostile environment, a lack of discretion, cuts in staff and cuts in ability, as well as Ministers who, quite frankly, do not have a grip on what is going on in their Department? The net result is damage to individuals and their families.