Immigration Rules: Paragraph 322(5)

Debate between Siobhain McDonagh and Alison Thewliss

Wednesday 13th June 2018 Westminster Hall

[Siobhain McDonagh (in the Chair)]

Before I call Alison Thewliss, let me say that I think it has become obvious to everybody that there might be quite a strict time limit on speeches.

[Alison Thewliss (Glasgow Central) (SNP)]

I beg to move,

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

To assist those who wish to intervene or speak later, I will speak about the background to this issue and about recent case studies from my constituency, and then I have some questions for the Minister. That may help them tailor their remarks.

I pay tribute to the members of the Highly Skilled Migrants campaign group, who have now held four large demonstrations outside this Parliament and have been extremely active on social media. They have self-organised and worked hard to give this issue the attention it deserves. I also want to thank Amelia Hill at The Guardian and Kirsteen Paterson at The National, who have given this issue first-rate coverage.

For more than a year at least, the Home Office has been issuing highly skilled migrants, many of whom entered the UK via the tier 1 general route, with notices detailing that their leave to remain application has been refused. It seems that many of those decisions have been predicated purely on the applicants’ alleged poor character in the wake of amendments to their tax returns and income statements. In making those decisions, the Home Office has deemed highly skilled migrants a threat to national security under paragraph 322(5) of the immigration rules, which refers to

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”.

That is highly inappropriate.

It is important to note that paragraph 322(5) is discretionary: it should be for the Home Office to determine whether to use it, based on the merits of each individual application. It also places the burden of proof on applicants, rather than on the Home Office. From my constituency casework, and from listening to highly skilled migrants who have contacted me, I have seen that that is regimented, calculated decision making. Individuals’ applications are refused whenever they supply details of different incomes, or seek to amend information in a tax return, often on the instruction of an accountant.

None of the migrants to whom I have spoken has any issues that should cause them to be considered a threat to national security, but the very invoking and recording of this paragraph could compromise their future work and travel. After all, what country would wish to accept somebody who had been refused by the UK on such grounds?

When an application is refused, it is incumbent on the applicant to challenge the decision through the courts. In many cases, the judge has overruled the Home Office’s decision, finding it entirely disproportionate. A number of refusals appear to have been predicated on nothing more than the individual making an honest mistake. As far as Her Majesty’s Revenue and Customs is concerned, when the correction is made, the case is closed. Some of the sums involved in those corrections are only a few pounds—sums of £1.20 and £1.60 have been reported—and many were from many years ago. For one of my constituents, it was from 2010. Many people have asked me, “If there was a problem back then, why didn’t it affect my status at that point?”

I raised this matter with the Financial Secretary to the Treasury at Treasury questions in May, and he confirmed that

“people should clearly continue to make appropriate changes to their tax returns. I reassure her and the House that Treasury Ministers and HMRC officials are working closely across Government—particularly with the Home Office—on the issues that she raised in order to ensure that we get these matters right.”—[Official Report, 22 May 2018; Vol. 641, c. 710.]