Question to the Home Office:

To ask the Secretary of State for the Home Department, whether his officials have raised concerns over potentially wrongful deportation of highly skilled migrants under section 322(5) of the Immigration Act in the last twelve months.

Paragraph 322(5) of the Immigration Rules is a long-standing provision which provides that applications for leave to remain or indefinite leave to remain should normally be refused where it would be undesirable for a person to remain in the UK in light of their conduct, character or associations, or where they represent a threat to national security. Refusal of an application for leave or indefinite leave to remain does not automatically lead to removal or deportation.

It is important that the Government retains the ability to refuse an application where we have identified that migrants have given deliberately false information in order to extend their stay or obtain settlement in the UK. It is not the Government’s policy to refuse applications by highly skilled migrants solely due to minor tax errors. Where any discrepancies are identified, applicants are given a right to explain the discrepancy. All such cases are signed off by a manager before refusal grounds are applied.

The Tier 1 (General) category was intended for highly skilled workers applying to work in the UK without requiring a sponsoring employer. The route was closed in April 2011, partly due to evidence of abuse by migrants using the route. Applications for indefinite leave to remain remained open until April 2018, for those who were in the category at the time it closed.

We have refused Tier 1(General) applications under paragraph 322(5) where an applicant’s character and conduct call into question their desirability of remaining in the UK. In these cases, refusals have been given where there have been substantial differences – often tens of thousands of pounds – between the earnings used to claim points in an immigration application and an applicant’s HMRC records, without a credible explanation from the applicant. We take all available evidence into account before making a decision and each application is considered on its own merits.

As I confirmed to the Home Affairs Select Committee on 8 May, we will carry out a review of these cases to see how many showed clear evidence of deceit, and whether any were refused due to minor errors. So far there is insufficient evidence to suggest there is any systemic problem which may lead to wrongful removals for this group, but this is one area our review will check.