Immigration Rules: Paragraph 322(5)

Afzal Khan Excerpts

Wednesday 13th June 2018 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

It is an honour to serve under you, Ms McDonagh. I thank the hon. Member for Glasgow Central (Alison Thewliss) for securing the debate and all Members for their contributions.

The Government’s treatment of highly skilled migrants has been shocking and unfair. Such migrants who have made legitimate and lawful changes to their tax returns are being put in the same category as serious criminals and terrorists. This is not just about the treatment of highly skilled migrants; it is about a hostile environment created by this Government, who treat all migrants like criminals and cannot distinguish between legal and illegal migrants. It is also about an ineffective Department that makes absurd mistakes, refuses appeals and cannot pick up on casework trends without media outrage.

First, I would like to discuss paragraph 322(5) and the way it is being used. According to Home Office policy guidance, it should be used for cases of criminality, threat to national security, war crimes or travel bans, yet a large number of refusals are on the basis of minor tax errors, many of which individuals picked up on and corrected themselves, as is their right. The Government’s overbearing hostile environment treats all migrants like criminals. Does the Minister recognise that many people are being penalised on the basis of 322(5) because of mistakes by the Home Office?

According to Home Office guidance, UK Visas and Immigration caseworkers are instructed to refer potential refusal decisions under paragraph 322(5) to a senior caseworker. Given the mistakes that I and other hon. Members have mentioned, does the Minister think that the system is working? How can such basic errors get past senior caseworkers and be allowed to play havoc with people’s lives?

Those are the actions of an overbearing Home Office driven by the Tory target of reducing net migration and failing to treat applicants in a fair and reasonable way. At least 1,000 highly skilled migrants seeking indefinite leave to remain are wrongly facing deportation owing to this paragraph. Our country desperately needs thousands of these people as NHS doctors, lawyers, teachers and engineers, and the effect of a refusal in such cases is devastating and lasting. People become ineligible for another visa and they are banned from returning to the UK for 10 years.

Often, people are either given only 14 days to leave the country or, if they stay, refused the right to work, to rent or to access NHS services. That is all without mentioning the mental and emotional effect of the process. During Home Office questions last week, I raised the issue of highly skilled migrants with the Minister, who said that,

“there have been several instances where those minor discrepancies have run into tens of thousands of pounds.”

She went on to say:

“We want to make sure that we collect the amount of tax that is owing.”—[Official Report, 4 June 2018; Vol. 642, c. 7.]

Of course nobody here would disagree that we want to collect tax that is owed. However, it is in HMRC’s interests for people to correct their taxes, and HMRC is explicit that that is entirely permissible and encouraged, if done within the 12-month timeframe. Is the Minister comfortable with the role the Home Office is taking on, second-guessing HMRC decisions and reassessing cases that it has said are settled and will not be penalised?

In conclusion, many cases of highly skilled migrants are heartbreaking, not to mention nonsensical from the perspective of the UK’s interests. Our NHS is facing a staffing crisis, and our businesses need skills. Yet the Home Office is denying visas to NHS doctors, lawyers, teachers and engineers, condemning them to be labelled as terrorists, criminals and a threat to national security when they have committed only minor tax errors. Will the Minister commit to apply paragraph 322(5) properly—to target serious criminals, not bad accountants? Will she tell her officials not to automatically deny visas when they spot minor mistakes? Will she recognise that minor mistakes in tax returns are not evidence of fraud? This reckless and hostile environment is targeting the wrong people.

--- Later in debate ---

[Caroline Nokes]

It is important that we reflect that I cannot comment on correspondence received by my predecessors back in November. What is important is that we are looking at the review now and at the individual cases, of which there are many. I will come to the specific points about numbers in due course.

As hon. Members will know, the Government are committed to building an immigration system that is fair to British citizens and legitimate migrants, while being tough on those who abuse the system or flout the law. We welcome those who wish to come here, stay here and take up highly skilled work, but people must play by the rules. Reports have suggested, and we have heard it repeated today, that the Home Office has been telling people who made a minor mistake on their tax records that we are deporting them because they are a threat to national security. I want to be very clear: that is not what is happening. We are not refusing people for making minor tax errors. We are certainly not saying they are terrorists.

The refusals we are discussing all relate to the tier 1 (general) route, which allowed individuals to come to the UK to look for work without needing a sponsoring employer. The hope was that they would make a significant economic contribution to the UK through taking up highly skilled jobs. The Government closed the route in 2011, as it had not worked as intended and, indeed, there were levels of abuse. Many applicants ended up in relatively low-paid work; an operational assessment of the route in 2010 found that 29% of tier 1 migrants were in low-skilled jobs and the employment of a further 46% was unclear. When they applied to extend their stay, many had PAYE earnings that were below what they needed to score enough points to remain in the route, but they also claimed for self-employed earnings. In some cases, the evidence showed that the claimed self-employment did not happen, and in other cases the evidence was less clear.

We were unable at the time to carry out the same level of checks with HMRC that we can today, and applicants in those cases where the evidence was not clear were given the benefit of the doubt. Now that those same individuals are applying for settlement, we are able to make more rigorous checks with HMRC on what applicants have told us in the past about their self-employment, and compare it with what they have told us for HMRC purposes.

Again, I want to be really clear: we do not have a policy of refusing people for making minor tax errors. We all know that many people have to make corrections to their tax records. However, there is a clear pattern that does not reflect that sort of minor correction. In many cases, more often than not, the self-employed earnings used to claim points in the tier 1 application have been £10,000 or more higher than the self-employed earnings reported to HMRC. That is not minor.

There are numerous examples where applicants have either not amended their tax records, or have amended them several years later, only shortly before applying for settlement, so that the records match. We have even seen cases where applicants have subsequently amended their tax records back down again after applying for settlement.

We give applicants the opportunity to explain, and we take their explanation and all available evidence into account. Any such cases must be signed off by a manager before they are refused. The review that I am carrying out is checking those safeguards to make sure that they have been followed correctly. We refuse cases only where applicants have been unable to provide a satisfactory explanation of what their self-employed activities are or why their earnings reported to the Home Office and to HMRC are so different. We will refuse cases where the evidence leads us to conclude that an applicant provided misleading information to one branch of Government or other.

[Afzal Khan]

Will the Minister give way?