Author: Amelia Hill
At least 1,000 highly skilled migrants seeking indefinite leave to remain (ILR) in the UK are wrongly facing deportation under a section of the Immigration Act designed in part to tackle terrorists and individuals judged to be a threat to national security, MPs and experts have said.
In the latest scandal to hit the Home Office after the Windrush crisis, a range of MPs and immigration experts have criticised the use of the controversial section 322(5) of the act, with two saying the crisis-hit department is truly wicked and abusing its power.
Experts say the highly skilled workers – including teachers, doctors, lawyers, engineers and IT professionals – are being refused ILR after being accused of lying in their applications either for making minor and legal amendments to their tax records, or having discrepancies in declared income.
In one case, the applicant’s tax returns were scrutinised by three different appeal courts who had found no evidence of any irregularities. The same figures are nevertheless used as the basis for a 322(5) refusal because of basic tax errors allegedly made by the Home Office itself.
Highly Skilled Migrants is a support group that represents over 600 workers and says it is in contact with over 400 more, most of whom are facing deportation under section 322(5), with the rest still waiting for a decision by the Home Office. Aditi Bhardwaj, one of the organisers, said the group has raised about £40,000 to challenge the Home Office in the courts.
“Ten members of our group have taken the Home Office to the first tier tribunal over their use of 322(5) in the past six months. Nine of these won their cases, with the appeal judges ruling the government’s use of section 322(5) was wrong,” said Bhardwaj.
At best, this suggests that the Home Office is recklessly incompetent in its use of 322(5). At worst, however, the section is being applied by the Home Office so often and being overturned so frequently when challenged at the highest level, that I question whether there is a blanket policy which the Home Office is using internally, which no one is aware about.”
The claims will be seized upon as further evidence of what Jeremy Corbyn has described as the government’s “cruel and misdirected” policy of deportation.
Cases include a former Ministry of Defence mechanical engineer who is now destitute, a former NHS manager currently £30,000 in debt, thanks to Home Office costs and legal fees, who spends her nights fully dressed, sitting in her front room with a suitcase in case enforcement teams arrive to deport her, and a scientist working on the development of anti-cancer drugs who is now unable to work, rent or access the NHS.
Saleem Dadabhoy, a scion of one of the wealthiest families in Pakistan, is facing deportation under section 322(5) despite three different appeal courts having scrutinised his accounts and finding no evidence of any irregularities, and a court of appeal judge having ruled that he is trustworthy and credible. His deportation would directly lead to the loss of 20 jobs, all held by British citizens, and the closure of a British company worth £1.5m.
Dadabhoy’s lawyer says the Home Office has made two basic accounting errors, comparing his client’s gross income to his net income, and comparing his tax return from an April to April tax year to a return from his December to December accounting year. They have used the inevitable discrepancy in income as evidence that he has submitted inaccurate figures.
“The litany of callous incompetence by the Home Office has been laid bare in the past few weeks, first with the Windrush scandal and now with the revelations regarding removal targets,” said Alison Thewliss MP.
“The way that the 322(5) rules are being applied is similarly malevolent, and I urge the government to get their house in order before any more lives are needlessly ruined.”
Thewliss is helping a number of her highly skilled constituents facing deportation under paragraph 322(5). “It is clear that people are being unfairly targeted using this paragraph of the immigration rules,” she said. “It is a truly wicked way to treat people that have lived here for so long, obeyed the law, and contributed a great deal.”
The Home Office claims the discrepancies in an ILR applicant’s tax returns are evidence that the applicant has deliberately provided false information, giving it the right to trigger its discretionary powers of paragraph 322(5) of the Immigration Act, a section designed to tackle criminals and those judged to be a threat to national security.
The controversial paragraph comes with devastating conditions. Migrants immediately become ineligible for any other UK visa. Many are given just 14 days to leave the UK, while others are allowed to stay and fight their cases but not to work.
In addition, people deported under the terrorism-associated paragraph will have that permanently marked on their passports, making it highly unlikely they will ever get a visa to visit or work anywhere else in the world.
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.
“Tax error rectification is not illegal or unlawful anywhere in the world, and not even in the UK Financial Act 2007,” said Bhardwaj.
Paul Garlick, a former Queen’s Counsel who specialises in extradition and human rights law, and was a part-time judge at the crown court in London said: “The decisions of the Home Office are beyond belief and deplorable.
“The system is crippled by not having enough people to do the work while those who are there, don’t understand the basics,” he added.
“They genuinely have no idea of the difference between tax years and accounting years, or what is a legitimately deductible expense.
“My feeling is that since Theresa May’s announcement of a ‘hostile environment’ for immigrants, caseworkers have been told to look for discrepancies that could form the basis of an accusation the applicant is lying, because that’s the quickest way to dispose of an application.”
Afzal Khan MP, the shadow minister for immigration, said: “Driven by a misguided net migration target, the Home Office has gone after what they perceive as easy targets in the form of the Windrush generation and highly skilled migrants.
“Going after NHS doctors, lawyers, teachers and engineers on the basis of tax errors is another example of the misguided injustice of the Home Office.”
Malini Skandachanmugarasan, senior solicitor and head of appeals and human rights at Laura Devine Solicitors in London, said the Home Office is “abusing” the powers granted to them under section 322(5) by “wrongly applying it to those not accused of any crime”.
“They are increasingly applying it to highly skilled migrants who have been in the UK for many years, creating or building up businesses here while contributing to our economy by paying high taxes and creating jobs for settled, British workers,” she said.
“Generally with the refusals of the highly-skilled migrants, there have not been and are unlikely to be any type of police investigation or prosecution, so a refusal on this ground seems unfounded and disproportionate.”
Mark Symes, one of the country’s leading barristers specialising in immigration law who also sits as a judge of the upper tribunal and first tier tribunal, said: “In the last couple of years, the refusal of the Home Office has become near-automatic for any applicant who declares higher earnings on their immigration applications than they subsequently – or at the same time – declare to the HMRC.
“The Home Office think this shows deliberate misuse of the immigration system: that these individuals have either downplayed their income for tax reasons or overstated their income for immigration purposes.”
“But small businesses may have up and downs on their incomes, and the tax year rarely equates perfectly to the immigration application year,” he said.
“In any case, it is not unusual for businesspeople to have to correct their tax returns but the Home Office treats any amendments almost as an admission of guilt,” added Symes, who is also the co-founder of HJT, a consultancy which trains government on immigration law.
A Home Office spokesperson said it refuses applications “in these circumstances only where the evidence shows applicants have deliberately provided false information to the government”.
If you’ve been affected by the issues in this story, here are some organisations that may be able to help.