Immigration Rules: Paragraph 322(5)

Lyn Brown Excerpts

Wednesday 13th June 2018 Westminster Hall

[Lyn Brown (West Ham) (Lab)]

I want to tell hon. Members about two constituents. Muhammad has lived in and contributed to the UK for 11 years. He has a master’s in architecture from Oxford Brookes. His wife is pregnant; he has a career, a home, a mortgage and a real life in the UK. The Home Office refused him indefinite leave on the basis of a minor tax error. The error was not his. Muhammad is dyslexic and does not do his own tax returns—they were submitted by a professional accountant, who made a mistake and issued an apology. Muhammad immediately paid every extra penny owed once the mistake was discovered.

Last year, Muhammad’s grandmother died. In April, his only brother died, too. He could not go to the funerals because he would not have been allowed back in the country afterwards. The baby is expected in September; he has been invoiced by the NHS for £9,000. If he does not pay that £9,000, his wife will come off the GP’s list. Muhammad’s case is not singular—far from it.

Sadeque is a senior lecturer at a university in the UK. Before that, he was at the University of Derby. He has lived and worked in the UK for seven years. Sadeque applied for indefinite leave in 2016, which was refused by the Home Office because in 2011 he made and accepted a minor error on his tax return. He repaid it in the same year. It is hardly a mark of bad character. He has been suspended from his job and soon will be forced to withdraw from his part-time master’s at Oxford University. He volunteers with Amnesty International, Save the Children and UNICEF and promotes IT skills in the Bangladeshi community. He was graduate of the year at the University of Bedfordshire in 2011. In 2012 and 2013, he was a finalist of the British Computer Society, of which he is now a fellow. In fact, he is also a fellow of the Royal Society of Arts.

Sadeque’s wife and daughter have already left the UK. His second daughter was born in Bangladesh but Sadeque has never met her. Why? Because he cannot go there; if he did, he would not be allowed to return. In Bangladesh, Sadeque was the dean of a university faculty. So why will he not just leave, when he is being so badly and disgustingly treated by our Government? That is basically what he plans to do. He has been worn down and is going, despite the pending judicial review.

It is hard to look at cases such as those of Muhammad, Sadeque and Windrush and not conclude that this Government are chasing an arbitrary immigration target, regardless of the needs of our economy—or, indeed, the NHS or any sense of decency we might still have left as a country. Frankly, the Government have to look at the reputational damage caused by this issue.

--- 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.