Immigration Rules: Paragraph 322(5)

Caroline Nokes Excerpts

Wednesday 13th June 2018 Westminster Hall

[The Minister for Immigration (Caroline Nokes)]

It is a pleasure, as always, to serve under your chairmanship, Mrs McDonagh. I congratulate the hon. Member for Glasgow Central (Alison Thewliss) on securing this exceptionally well-attended debate. There have been numerous contributions from hon. Members; I fear I will not have enough time to do them justice by referencing them individually, but I think it is important that we look closely at this whole matter. That is one reason why we have the review.

The hon. Lady and many hon. Members have raised individual cases, which are of course central to this debate, but we must also reflect on the policy as a whole, and many hon. Members have requested that I do so.

[Stephen Doughty]

When the Minister appeared before the Home Affairs Committee in May, she claimed she had not had the time to look at those cases because there had only been two working days since the issue had been flagged up. She was told in November last year by my hon. Friend the Member for Birmingham, Yardley (Jess Phillips). My hon. Friend the Member for Reading East (Matt Rodda) wrote to her in February and we have heard that my hon. Friend the Member for Oxford East (Anneliese Dodds) wrote to her in March. Can she clarify for the House, and for other members of the Committee, when she first knew about this issue?

[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?

--- Later in debate ---

[Caroline Nokes]

I am sorry; I only have a few minutes and I want to explain what paragraph 322(5) is for. It is for refusing applications where the evidence shows that an individual has not played by the rules. While there has been a focus on the minority of judgments that go against the Home Office, more often than not the courts have supported our refusal decisions.

[Lyn Brown]

Will the Minister give way?

[Caroline Nokes]

I am sorry; I simply do not have time. I have about three minutes left.

To pick an example, in May this year the upper tribunal agreed with us that an applicant’s explanation was simply “hopeless”, and noted the timing of the amendment in relation to the ILR application. Paragraph 322(5) is a long-standing provision within the immigration rules, dating back to 1994.

[Lyn Brown]

Will the Minister give way?

[Caroline Nokes]

I have already told the hon. Lady that I will not. Paragraph 322(5) was not introduced to support compliant environment policies, as has been suggested, as it long pre-existed those policies. It does not mean that any particular individual represents a threat to national security, but for obvious reasons we do not seek to isolate national security refusals from others.

However, I also recognise that it is not enough simply to talk about circumstances that happen more often than not. Each case is individual and must be treated on its own merits, which is why we are using this review to make sure that no one who has made an innocent mistake has been caught up in tackling the wider abuse. That is why we have had this review, which is still ongoing. The first phase is complete, and I just wanted to indicate specific numbers. There were 281 in the first phase and 1,671 in the second. While I do not wish to prejudge the final conclusions, it has been very clear that they are broadly in line with what I have said this afternoon. I will report the conclusions of the review to Parliament once it is completed. [Hon. Members: “When?”] The first phase of the review, as I indicated, is already complete. As soon as the second phase, which is a significantly higher number, is done, we will report it to Parliament and to the Home Affairs Committee, as I said.

We are aware of 427 appeals and judicial reviews in progress. Many are still outstanding, but no applicants have been successful at judicial review, and only 38 appeals have been allowed, mostly on human rights grounds. All current cases are on hold, and while it is the case the applicants’ statuses are protected, that means that those who applied before their existing leave expired can continue to work, and their other rights, to rent and to NHS services, are also unaffected.

In 50 of the cases we have considered, there has been a discrepancy in excess of £10,000 between the income claimed to HMRC and the income claimed to UKVI, and 34 of the applicants sought to amend their tax records only within the 12 months preceding the submission of an application.

It is very important that we have a rigorous review that reports when the findings are clear. However, I would like to inform Members this afternoon that we have taken a very thorough approach with this, determined to find out whether there are any genuinely wrong refusals and to put them right.

Question put and agreed to.

Resolved,

That this House has considered paragraph 322(5) of the Immigration Rules.