According to the Guardian the Home Office has used the “rule – designed in part to tackle terrorism – to refuse applications from hundreds of people for making legal amendments to their tax records.”
The Guardian report says “the department has tried to force at least 300 highly skilled migrants to leave the UK under paragraph 322(5), with a further 87 having left and another 400 potentially affected, between January 2015 and May 2018.”
In a 60m page judgement, the Appeal Court, having examined four of these cases, said there was “at least arguably, a distinct unlawfulness, in that the secretary of state failed to make an explicit finding of dishonesty.”
“But the wider impact of the judgment is the court’s finding that the “general approach [by the home secretary, Sajid Javid] in all earnings discrepancy cases [has been] legally flawed” and must change. Criticism of the Home Office’s use of the clause has become part of the wider debate over the “hostile environment” and a target-based culture that also gave rise to the Windrush scandal,” the Guardian report said.
The three member appeal court including Lord Justice Underhill, Lord Justice Hickinbottom and Lord Justice Singh, criticised Javid for assuming the applicants’ amendments to their tax records were “the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation.”
The judgement went further to say that Javid failed to “address the further questions of whether the dishonesty in question render[ed] the presence of the applicant in the UK undesirable or whether there are other factors which outweigh the presumption in favour of removal, or give applicants the opportunity to raise any matters relevant to those questions”. This question, the judges said, “cannot simply be ignored”.
The court also gave applicants threatened under 322(5) a new and extra layer of protection by finding that all further use of the clause must be subject to article 8 of the European convention on human rights, meaning the notice of liability to removal – which is the consequence of refusal of indefinite leave to remain – will “constitute an interference with those rights which the secretary of state will have to justify”.
The judgment added: “His decision on that question will be reviewable as a matter of fact, whether in the context of a ‘human rights appeal’ or, where no such appeal is available, in judicial review proceedings.”
The Guardian pointed out that “there are more than 70 other 322(5) appeals or applications for permission to appeal pending before the court and an unknown number of challenges pending in the first-tier tribunal or upper tribunal. “The intention is that our decision in these appeals will determine the various issues of principle raised in at least most of the pending legal challenges in all of these cases,” the court said.
The lack of opportunity for applicants to appeal a finding of guilt under 322(5) was also criticised as unlawful by the court: in administrative review, the applicant is not normally allowed to produce new evidence to counter accusations of dishonesty.
Many of those affected had lived in the UK for a decade or more and have British-born children. Some were given 14 days to lodge an appeal and were no longer eligible for a visa to visit the UK or any other country. Those who appeal face severe restrictions on their right to work, have a bank account, hold a driving licence or access free NHS treatment while they do so.
“The judgment in short confirms that the government’s allegations against migrants in relation to their tax returns amounts to an allegation of deliberate misrepresentation to either the Home Office or HMRC,” the Guardian said.
In addition, “the court states that a large number of migrants have claimed that in their cases, errors which were the result only of carelessness or ignorance have wrongly been treated as dishonest, and that the Home Office has been too ready to find dishonesty without an adequate evidential basis or a fair procedure.”
- Countries: United_Kingdom