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How the Home Office Misused Anti-Terror Legislation Against Skilled Migrants

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About The Author

Matt Wojcik (Regular Writer)

Matt is currently a second-year law student at Durham University. He has a keen interest in international law and environmental law, which stem from his background as an international student. Outside of his LLB, Matt dedicates his time to societies, committees and outreach projects at Van Mildert College.

The Home Office has embraced a political culture that aims to drive immigrants out of the country on any pretext, however flimsy, however unfair, and however discriminatory its effect.

Lord Taverne

The recent policy and conduct of the UK Home Office in relation to the treatment of immigrants – described by some as the creation of a ‘hostile environment’ – has been widely reported and criticised. Earlier this year, Amber Rudd MP resigned as Home Secretary following a tumultuous period in office, marked by the Windrush Scandal and revelations that she had misled the House of Commons’ Home Affairs Select Committee about targets for the removal of illegal immigrants.

However, overshadowed by the media storm that surrounded Rudd’s downfall, another recent immigration scandal reared its head. On 6 May 2018, The Guardian reported that:

[A]t least 1,000 highly skilled migrants seeking indefinite leave to remain (ILR) in the UK [were] wrongly facing deportation under a section of the Immigration Act [1971] designed in part to tackle terrorists and individuals judged to be a threat to national security.

More specifically, Paragraph 322(5) of the Immigration Rules – the draconian provision at the centre of this scandal – was reportedly employed in cases where non-criminal and honest tax mistakes had been made by highly skilled migrants; individuals who could not be considered a ‘threat to national security’. The misuse of Paragraph 322(5) of the Immigration Rules had a drastically disproportionate impact upon the lives of the affected migrants, compared to the minor tax discrepancies at the heart of their cases.

To fully understand the disparity between its original purpose and current use, Paragraph 322(5) of the Immigration Rules must be deconstructed and applied to the stories of the highly skilled migrants affected by Home Office’s change in conduct and policy. This article seeks to do this, and aims to capture the full impact of the scandal and consider the lessons that might be learned for the future.

Deconstructing Paragraph 322(5) of the Immigration Rules

Paragraph 322(5) of the Immigration Rules provides a general ground for the refusal of immigration applications. It holds that applications for leave to enter or remain in the UK ought to be refused on the basis of:

[T]he undesirability of permitting the person concerned to remain in the United Kingdom in light of his conduct… character or associations or the fact that he represents a threat to national security.

The Home Office has published Guidance on the Immigration Rules, which directs itself to employ Paragraph 322(5) of the Immigration Rules in cases involving ‘criminality, a threat to national security, war crimes or travel bans’. As Jo Wilding has explained:

[T]he core of these policies is to exclude people whose presence is ‘not conducive to the public good’.

The ambiguous and opaque wording of this provision – specifically, its reference to ’character’ – allows for a subjective approach to individual cases. Such an approach has often led to inconsistency. Indeed, the support group Highly Skilled Migrants has identified evidence that shows that:

[P]eople with the same immigration history are successful with one application and unsuccessful with another.

As well as this inconsistency, the ambiguity of the provision’s wording has permitted the Home Office to embrace a dangerously liberal interpretation of what may be considered an applicant’s ‘character’. The word ‘undesirable’ exacerbates this problem of inconsistency, as it sets a very low threshold for the refusal of an application. This has enabled the Home Office to use this discretionary provision to promulgate the notion that a minor tax return error is enough.

This is clearly illustrated by Anwar [2017], which saw the Home Office attempt to rely upon Paragraph 322(5) of the Immigration Rules by alleging that a Pakistani applicant for ILR was of unsuitable character because of his (allegedly intentional) non-payment of £1.60 worth of tax. The Upper Tribunal rejected these arguments, concluding the non-payment was accidental.

As Jo Wilding correctly argues, this approach is deeply flawed; after all, a tax return discrepancy that was made in error – particularly one that is subsequently rectified – is not an offence. Indeed, the Home Office’s own Guidance on the Immigration Rules makes no mention of an inconsistency in taxes being a reflection of an applicant’s ‘character’. Moreover, it is clear that Paragraph 322(5) of the Immigration Rules was aimed at criminality and legitimate threats to national security, which tax errors cannot be said to fall under.

Regrettably, not all immigrants will be as lucky as the individual in Anwar [2017] because not all applicants have a right of appeal; for some, the only redress available will be an internal review by the Home Office. As explained by Nath Gbikpi, immigrants who applied for ILR on the basis of five years’ residence as Tier 1 (General) migrants are usually only given a right to an internal administrative review. Furthermore, while those who applied on the basis of ten years’ lawful residence are considered to have made a human rights application and therefore should get a right of appeal, they may be denied one if their application is 'certified as clearly unfounded'.

This is problematic: administrative review is the only form of appeal, and this may result in a loss of neutrality; the application will not be assessed by an independent judge but by another officer of the Home Office. Furthermore, the process of administrative review adds to the problems: the applicant has little opportunity to build a stronger case; the circumstances in which the applicant may submit new evidence are narrow; and, unlike appeals involving human rights claims, the right to private life of the applicant is not balanced with public interest.

The Consequence of the Misuse of Paragraph 322(5) of the Immigration Rules

The impact of the Home Office refusing leave by means of Paragraph 322(5) of the Immigration Rules can have a devastating effect on an applicant’s life. Indeed, for highly skilled migrants who are refused on the basis of a minor tax discrepancy, the impact is particularly drastic.

For example as reported by The Guardian – one such applicant, Owais Raja (R), has been disproportionately affected by the Home Office’s misuse of the provision. Following a mistake on his tax return made by R’s accountant, HMRC accepted the honesty of the error and chose not to impose a fine or charge interest on the tax due. His application for indefinite leave to remain, however, was refused by the Home Office on the basis of Paragraph 322(5) of the Immigration Rules.

While it has been noted that the HMRC and the Home Office serve different purposes – the former seeking to identify and resolve tax discrepancies to encourage payment of taxes, and the latter using these discrepancies as markers for dishonesty – the difference in the thresholds used by each organisation for these purposes, as well as their subsequent outcomes, is striking. Indeed, the disparity in the responses by HMRC and the Home Office indicates the harshness of the approach taken by latter.

In addition to rendering his future in the UK insecure, the Home Office’s decision has meant that R is unable to work, unable to access the NHS and has been forced to sell personal possessions to provide for his family. Further, the refusal based on Paragraph 322(5) of the Immigration Rules puts him at risk of never being able to travel to or work in another country again. In sum, R was subjected to treatment worthy of a terrorist for an honest mistake made by his accountant.

R is but one of many highly skilled immigrants affected by Paragraph 322(5) of the Immigration Rules. After three separate appeal courts scrutinised his accounts and found no evidence of irregularity, another – Saleem Dadabhoy – was served with a deportation order which, if successful, would have resulted in the loss of 20 jobs and the closure of a British company worth £1.5 million.

Meanwhile, another highly skilled migrant, Nisha Mohite (M) – a student from India who completed her education in the UK and established her own pharmaceutical consultancy – was subjected to Paragraph 322(5) of the Immigration Rules after her former accountant failed to declare income on which she had already paid tax. When a new accountant pointed out the mistake, M corrected the error and the HMRC did not issue a fine or a sanction, whereas the Home Office accused M of 'undesirable conduct'.

When attempting to get to the core of what 'undesirable conduct' meant to the Home Office in M’s case, M was met with contradictory reports, which admitted that the Home Office accepted that her attempt to rectify her previous accountant’s mistake was 'genuine', but at the same time which decided nevertheless to deny her ILR application. M has reported that she has sold most of her belongings and has borrowed money from friends and family in order to deal with the refusal of leave.

Due to the draconian travel limitations imposed by Paragraph 322(5) of the Immigration Rules, M is unable to return home, as she may then be unable to return to the UK to challenge the  refusal. M is therefore another example of an individual who has legally entered to the United Kingdom, has meaningfully contributed to British society, only to be unreasonably targeted by discriminatory immigration provisions. Considering the pretext of minor tax errors in the refusal of leave to remain for such applicants, it becomes clear that the measures taken are grossly disproportionate.

Conclusion: The Future of Paragraph 322(5) of the Immigration Rules

Following considerable media attention and the establishment of pressure groups by approximately 20 MPs, Sajid Javid MP, the recently-appointed Home Secretary, made the decision to 'put on hold' and current pending cases concerning Paragraph 322(5) of the Immigration Rules which involve tax discrepancies of highly skilled migrants; he has also decided to launch an investigation into the application of Paragraph 322(5) of the Immigration Rules in such cases.

At the conclusion of the first phase of the Home Office investigation into such cases, Caroline Noakes MP, the Secretary of State for Immigration, supported the employment of Paragraph 322(5) of the Immigration Rules in the majority of reviewed cases. She argued that 38 cases were overturned on ‘human rights grounds rather than because of decision-making errors relating to earnings’. In light of this, Noakes MP deemed the use of Paragraph 322(5) of the Immigration Rules in the vast majority of cases were ‘correct’. The final result of the investigation is to be made public in the coming weeks.

However, it is clear from the information currently available, and implicit in some of the comments of the Secretary of State for Immigration, that the Home Office is unwilling to lose the wide discretion that Paragraph 322(5) of the Immigration Rules provides. Nonetheless, it is hoped the attention and publicity that the government’s recent policies have received may go some way to convince Ministers to adopt and implement much-needed limits on the use of this broad and general ground for refusal.

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Tagged: Administrative Law, Anti-Terror, Criminal Law, Discrimination, Immigration, Justice, Tax Law

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