Immigration Rules: Paragraph 322(5)

Stephen Doughty Excerpts

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.

--- Later in debate ---

[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.