ILR applications are being refused in large numbers under section 322 (5) of the Immigration Rules. Home Office is branding many of those applicants as persons with undesirable character. For professional, highly-educated, well-travelled individuals, being accused of deceiving the government is a devastating charge. Unfortunately, for many Tier 1 and Tier 2 migrants applying for Indefinite Leave to Remain (ILR), their applications have been denied on this ground. And the reason? Often it is a simple mistake made on a tax return several years in the past.
In a recent protest by highly-skilled migrants outside Downing Street, protesters stated:
“Skilled migrants with an excellent education and professional skills are being refused ILR on the ground of ‘tax error rectification’ because of small errors they have made on their tax returns in the past, which have long ago been rectified and paid off”.
Why are ILR Applications being Refused on section 322 (5) grounds
Over the past five years, the British government has been committed to bringing down net migration to under 100,000. In doing so, it has deliberately created a ‘hostile’ environment for illegal migrants, and many migrants who should be granted entry clearance or ILR, fall foul of harshly applied immigration rules and policies.
Many cases involving being refused under section 322 (5) involve highly skilled migrants who entered the UK under the old Tier 1 category. Applications for ILR under this category closed in April 2018. Many of those who had an old Tier 1 Visa have pending applications or are able to apply under the ILR 10-years’ lawful residence route.
Paragraph 322(5) is something of a catch-all provision, stating an application for leave to remain should normally be refused where
‘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.’
Such a provision would normally be associated with evidence of terrorist activity, hate speech or a violent criminal past. But UKVI caseworkers are using it as grounds to refuse ILR applications for making minor and legal amendments to their tax records or having discrepancies in declared income.
What to do if I made Tax amendments?
The best way to avoid having your ILR application refused on the grounds of deception is to work with an experienced immigration lawyer from the beginning of the application process. They can review your documents and quickly establish if there are elements which may cause UKVI to reject your application. It can be extremely difficult to establish whether your application will trigger section 322 (5) as tax error rectification is not illegal or unlawful anywhere in the world, and not even in the UK Financial Act 2007. Therefore, it often takes a professional to spot if a tax or income declaration error is likely to cause a refusal on these grounds.
What Should I do if my ILR Application is Refused on Section 322 (5) Grounds?
If your ILR application is refused on section 322 (5) grounds, the most important first step is to seek advice and representation from an experienced immigration lawyer. They will advise on the best action to take. You can appeal the decision if appeal rights are available if not, you can submit Judicial Review which is last resort to get the justice.
It is crucial not to delay seeking legal advice as section 322 (5) comes with devastating consequences. You will immediately become ineligible for any other UK visa and some migrants are given just 14 days to leave the UK. If you are permitted to stay to fight your case, you may be unable to work, study or collect benefits.
In addition, if you are deported under the terrorism-associated paragraph, it may be permanently marked on your passport, making it highly unlikely you may ever get a visa to visit.
The Home Office’s own internal guidance to caseworkers specifies that section 322(5) should only be triggered in cases involving “criminality, a threat to national security, war crimes or travel bans”. But the discretionary section also allows the Home Office to refuse an applicant by inferring that their “character and conduct” make them undesirable to be allowed to live in the UK.
Client Says, “Successful ILR application (322/5 refusal/JR)
If you are reading this review then you must need legal support like we did a year ago and you are confused don’t know who to trust or who to select as this side of life was completely unknown to you!! So please read our story as it might guide you in the right direction. We had an ILR rejection back in Aug 2016 and it was one of the nasty allegations which are hard to get rid off. We were in tears, needed legal support and we didn’t know any solicitors. So based on reviews we selected A Y & J solicitors to pursue our AR and then Judicial Review. I still remember the day of our refusal I left an enquiry on their web page and the next day Diana called me and spent over 45 minutes to take our case history and booked us to see Yash. At that point she won my heart as by then we already experienced that most solicitors don’t even spend a minute over the phone unless and until you pay any consultation fee. Yash was very open and honest. He showed us the true picture and let us decide to pursue JR or not! So finally from JR submission until we received the outcome it took about a year. Throughout these time at every stage, they kept us well informed at all times. Waleed took over our case half way through. He is a very genuine and efficient person. We never ever had to remind him about anything as he was always ahead of the game. We have gone through an awful journey where sometimes we felt to give up but the team helped us to gain our trust back. Team members are very knowledgeable, caring, trustworthy and friendly, Throughout the time there was excellent communication, they kept us informed as soon as they had an update.
We have helped clients and brought successful outcome for them. Read all Success Stories of cases with Tax amendment issues.
Being accused of bad character or a threat to national security when applying for settlement in the UK may come as a shock. However, by instructing an expert legal advisor, you will be able to fight the allegation and ensure you and your family can stay permanently in Britain.
A Y & J Solicitors are specialists in immigration law based in central London. If you would like to have more information, please contact us at [email protected] or call +44 20 7404 7933.
Disclaimer: No material/information provided on this website should be construed as legal advice. Readers should seek an appropriate professional advice for their immigration matters.
