Home Office criticised by court over immigration law misuse

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An unfavourable judgment has been issued by the appeal court criticising the Home Office’s process in using a terrorism-related paragraph of immigration law, stating that it is “legally-flawed” and ruling that it needs to be changed.

The process, which makes use of a rule partly designed to tackle terrorism, has resulted in the denial of applications from hundreds of people for carrying out legal amendments to their tax records.

Between January 2015 and May 2018, under paragraph 322(5), the department has attempted to force at least 300 highly skilled migrants to leave the UK with a further 87 having left and 400 more potentially affected.

The court found that the approach by Home Secretary, Sajid Javid in all earnings discrepancy cases has been “legally flawed” and must change. He was further criticised for assuming that amendments by applicants to their tax records were dishonest, without granting them the opportunity to proffer an explanation of their innocence.

The court provided applicants threatened under 322(5) a new layer of extra protection by finding that all future use of the clause must be subject to article 8 of the European Convention on Human Rights. This means that the notice of liability to removal – the consequence of refusal of indefinite leave to remain – must “constitute an interference with those rights which the secretary of state will have to justify”.

There are in excess of 70 other 322(5) appeals or applications for appeal permission pending before the court. 

The court also found the lack of opportunity for applicants to appeal a guilty finding under 322(5) unlawful, stating that the applicant is not normally permitted to produce new evidence to disprove accusations of dishonesty.

A spokesperson from the Home Office stated: “The court agreed that the use of paragraph 322(5) is appropriate in these types of cases and that we are right to expect a full and convincing explanation from people when there are discrepancies in their tax records and immigration applications. We will consider the judgment and our response carefully.”

Many of the applicants affected have lived in the UK for a decade or more and have children who are British born. Some were given 14 days to lodge an appeal and were no longer eligible for a visa to visit the UK or another country during that time, also facing severe restrictions on their rights to hold a driving licence, have a bank account, work or access free NHS treatment.

Parminder Saini, a representative of one appeal case, reported that the judgment confirms the government’s allegations against migrants that errors in their tax returns are an act of deliberate misrepresentation to either the Home Office or HMRC. She also states that the Home Office has been to eager to find dishonesty without adequate evidence or a fair procedure where migrants have claimed that errors were the result of carelessness or ignorance and were not deliberate. 

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