Report says paragraph 322(5) is discrimination against migrants of colour and shows Windrush lessons have not been learnt
Migrants’ Rights Network report on the continuing issues faced by highly skilled migrants over paragraph 322(5) of the Immigration Rules
16 February 2021
Migrants’ Rights Network (MRN) at the start of this month published a new report on the problems Highly Skilled Migrants (HSMs) in the UK continue to face due to paragraph 322(5) of the Immigration Rules.
You can download the 22-page report here. Last week, MRN also uploaded an hour-long video of the report's launch here on YouTube. Speakers include Stephen Timms MP and Sonali Naik QC of Garden Court Chambers.
The research for the report was conducted with the Highly Skilled UK group and included 2 comprehensive surveys in June and October 2020, with 67 and 63 responses respectively. Extensive interviews were also conducted with members of the Highly Skilled UK group, legal professionals, and those working on relevant immigration matters in Parliament and in NGOs.
It is the latest report to examine the long-running controversy surrounding paragraph 322(5) and its use by the Home Office to refuse immigration applications because of historic discrepancies and errors in an applicant's tax returns.
MRN explained: "HSMs in the UK have … been criminalised and denied indefinite leave to remain (ILR) based on the Home Office's subjective 'bad character' or 'dishonesty' judgements under immigration rule 322(5) for historic self-employment tax discrepancies up to 10 years ago. The denial of ILR has left them in legal limbo. All those affected are migrants of colour from 6 South Asian and African countries. As Commonwealth citizens, they might have the right to vote but as part of enforcement of hostile environment policies, over half have no ability to work, rent, drive, receive NHS healthcare, open bank accounts or receive access to public funding (Immigration Act, section 3C). There is no secure future in the UK for any HSM, and British-born children of HSMs with no ILR are not eligible for British citizenship, even if they were born here."
MRN says in its report that the use of paragraph 322(5) is another example of the impact of the Government's discriminatory 'hostile environment' immigration policies on migrants of colour and it shows that Windrush lessons have not been learnt.
The report notes that the Court of Appeal's 2019 judgment in Balajigari and 2020 judgment in Yaseen determined that the Government had been acting unlawfully where there has been no opportunity for the applicant to explain the tax discrepancy and where there had not been a 'balancing exercise' in the decision-making process, "informed by all relevant [and positive] factors."
MRN found, however: "Despite the Balajigari ruling that found the Home Office's (then) decision-making process unlawful and saw up to 80% of HSMs granted ILR, at least 70 people's cases have fallen through the cracks for reasons including the timing of their applications and having no opportunity to answer questions to 'tell their story' regarding the discrepancies."
The report added: "[T]here remains inconsistency in providing HSMs with a right to appeal (58% of cases). For some, the right of appeal has been granted in country and for others, outside. There are inconsistencies in HSMs having the opportunity to explain the circumstances of the discrepancy through a 'Minded to Refuse' [MTR] letter (80% of HSMs have not received one), which requires a response within 28 days. 38% of remaining HSMs have received neither a right of appeal or MTR letter, enabling them to "tell their story". MTR letters themselves have been inconsistent in the number of questions asked. Some letters have included over 100 questions raising the question of what can be reasonably answered in the time frame. Other MTR letters have been used to fish for information in scope far wider than the tax discrepancy in question. It is also uncertain in many cases that the Home Office has undertaken a 'balancing exercise' in its refusal of ILR, as per Balajigari. When applicants have responded that there has been no intentional dishonesty on their part, it is also unclear whether a full fact-finding remedy has been provided in that case."
MRN says in the report that the Government has not bided by or fully implemented its own principles for the remaining HSMs, and this undermines the UK's desire to be a country where equality and justice is important.
MRN called upon the Government to end the use of paragraph 322(5) in such cases, saying: "[W]e call upon the Home Office again to reflect on its actions and implement policies that are humane and treat HSMs with dignity and ensure equity, as every other person in the UK is entitled. We ask that the use of 322(5) is ended for non-criminal actions and that all of those where the Home Office, under its burden of proof, has not established or proven 'dishonesty', reconsider cases and grant ILR immediately. In the words of Balajigari judgement, if not carried out, 'then a serious injustice will have been done'."
In response to the report, Kevin Foster, the Parliamentary Under Secretary of State (Minister for Future Borders and Immigration), said in a statement: "To equate these cases to Windrush is wrong and inflammatory. In 2019 the court ruled our use of these immigration rules was appropriate and we were justified to expect a full and convincing explanation about glaring discrepancies between their visa applications and their tax records.
"Our review found 88 per cent of those refused under 322(5) claimed in their visa applications their earnings were more than £10,000 a year higher than was shown by their tax records – these are not small mistakes in tax records.
"The majority of the cases have either been concluded or are being actively reconsidered – the courts timescales are beyond our control, but we are working to resolve these outstanding cases fairly and as quickly as possible. Those awaiting the outcome of their application are not destitute, they have been granted permission to study or work while their cases are reconsidered."
Nick Sigler, the chair of Migrants’ Rights Network, said Foster's statement showed that the Home Office is worryingly out of touch with the realities faced by those denied leave to remain in the UK on the basis of historical tax discrepancies.