Controversy continues over use of paragraph 322(5) to deny applications for indefinite leave to remain
HM Revenue and Customs shared tax data of over 460,000 migrants with the Home Office between 2015 and 2020
23 August 2021
The New Arab, a London-based news website, published an interesting in-depth article earlier this month on large-scale data sharing between HM Revenue and Customs (HMRC) and the Home Office.
You can read it online here.
It's the latest in the long-running controversy over the Home Office's use of paragraph 322(5) of the Immigration Rules to deny applications for indefinite leave to remain (ILR) by highly skilled migrants. The applications were made under the now-closed Tier 1 (General) visa route and were refused because of errors and discrepancies in the migrants' tax returns.
The House of Commons held a short debate on the subject last month.
According to the New Arab article, a Freedom of Information (FOI) request submitted by Migrants' Rights Network (MRN) found that HMRC shared data belonging to over 460,000 migrants with the Home Office between 2015 and 2020.
Anne McLaughlin, the SNP MP for Glasgow North East, told the House of Commons in last month's debate: "Information sharing or data matching—call it what you will—has been utilised to unfairly target highly skilled migrants. This cohort sets an incredibly important precedent for how personal tax data could be gathered, shared and used in immigration decisions, highlighting why we need to ensure transparency around data sharing for immigration enforcement."
McLaughlin continued: "Through freedom of information requests, we now know that between 2015 and 2020, 463,000 people's HMRC tax data were shared with UKVI at the Home Office. That is a staggering amount of data sharing that the public are simply not aware of. Any expansion of this already expanding regime will mean a lot more data being shared about migrants, and it will provide numerous opportunities for abuse by the Government, who are already determined to pursue a hostile environment policy. Such data needs protection and safeguards. Any system that seeks to share the data must be built with legal restrictions and strict adherence to GDPR."
The New Arab reported that the digital rights group Foxglove wrote to the Home Secretary in June saying that there is "no lawful agreement" to allow data sharing between HMRC and the Home Office.
Rosa Curling, a lawyer at Foxglove, said that a 'memorandum of understanding' (MOU) between HMRC and the Home Office allowed data sharing "if an immigration offence is suspected". Curling noted, however: "Tax discrepancies are neither an immigration nor criminal offence, and HMRC itself did not pursue them as an issue at the time of filing."
Anne McLaughlin explained: "The memorandum of understanding for data sharing between both Departments was accessed via a freedom of information request. It is an enlightening piece of evidence. It is not a contract, nor is it legally binding. It does not in itself create a lawful means for the exchange of information. It simply documents the processes and procedures for information sharing agreed between the Departments …. The MOU provides no evident lawful due process or safeguards for sharing the data that was used to refuse indefinite leave to remain to highly skilled migrants."
McLaughlin told the Commons that since 2016 and the establishment of the "very untransparent" MOU, some 1,697 highly skilled migrants have been denied ILR.
Foxglove said the use of paragraph 322(5) to deny ILR applications was discriminatory and a breach of the Equality Act.
Katharine Thane, MRN's senior advocacy officer, told the New Arab that evidence shows all those refused ILR for historic tax errors were "non-white" applicants.
In a report on the subject published in January this year, MRN said this was another example of the impact of discriminatory 'hostile environment' policies experienced by migrants of colour.
Katharine Thane said: "The Home Office is fighting over is a small amount of money. Many had already set up plans to pay it back but their corrections on tax forms are deemed dishonest. Many are not given a chance to explain reasons for amendments to errors. But the Institute of Fiscal Studies has found some four million British citizens make similar tax form errors on a regular basis, so this only looks like an excuse to refuse ILRs."
Thane added that there are concerns that the refusals are becoming "a money-making scheme", as even when highly skilled migrants are cleared of dishonesty, they still have to reapply for ILR at a cost of thousands of pounds.
The Home Office denied any allegations of racial profiling and told the New Arab: "If people are found to be abusing our rules, the public rightly expects we take robust action. We found 88 percent refused under paragraph 322(5) claimed their earnings were £10,000 a year higher than shown by their tax records. In fact, the average was £27,600 so it is wrong to claim these are small mistakes in tax records."
Kevin Foster MP, the Parliamentary Under-Secretary of State for the Home Department, told the House of Commons last month: "[T]he Tier 1 general route, to which highly skilled migrants applied, was beset with problems and opportunities for abuse, which is why the Government closed it to new applications back in 2011. The investigations that we have concluded so far show that the principal issue is not tax records and the evasion of tax payments that should have been made, but applicants falsifying their earnings to obtain their immigration status, often involving five-figure sums."
According to Foster, the scale of the discrepancies is often far beyond those that might be attributed to innocent mistakes or accounting practice.
On the data sharing between HMRC and the Home Office, Foster said: "If someone gives information about their salary to one part of Government, saying that it is an honest declaration of their tax position to meet taxation laws, it should not come as a huge surprise if that is then considered when looking at a declaration of income that they have made to another part of Government relating to rules on immigration status."