The Home Office has today published guidance on “paragraph 322(5)” cases following a review of settlement refusals under the controversial rule. The takeaway is that no refusals should be issued without interviewing the applicant first.

Migrants on a Tier 1 (General) visa who want to settle in the UK have been refused because of discrepancies between tax information provided to HMRC and the earnings information given to the Home Office as part of earlier visa applications. The Home Office thinks that these applicants inflated their income in order to secure their Tier 1 visas.

There have been a number of challenges to these refusals in the courts. Those affected say the refusals have been issued without consideration of the particular circumstances of each applicant, and regardless of the explanation given for their tax affairs. Nath wrote a useful summary of the issue over the summer: Tax discrepancies and paragraph 322(5) refusals: what are they and how to challenge them.

The refusals were issued under paragraph 322(5) of the Immigration Rules. Paragraph 322(5) says that an application for leave to remain should normally be refused where

the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security.

The Home Office review says that since January 2015, almost 1,700 indefinite leave to remain applications from Tier 1 (General) migrants have been refused. In 88% of cases, the tax discrepancies amounted to more than £10,000 and so were not considered likely to be an innocent mistake. Most applicants changed their tax returns years after filing them and not long before an ILR application.

Of the 1,700 cases examined, the Home Office says that it has reversed its decision in 37 and is reconsidering another 19. But it has also lost two thirds of the appeals that have so far gone to the First-tier Tribunal. The review nevertheless concludes:

In the majority of cases, having taken all the evidence and applicants’ explanations into account, we were not satisfied that these were minor tax errors as claimed, but attempts to misrepresent self-employed earnings for the purposes of obtaining leave or settlement in the UK.

Until the Court of Appeal considers the issue early next year,

there are no plans to change the approach taken to deciding the majority of these cases. The review has, however, identified some areas for improvement.

To that end, the newly published guidance tells caseworkers:

For all refusals where data from HMRC is referenced;

• The migrant must be interviewed.
• A witness statement from HMRC must be obtained prior to the decision being made. Where the decision includes data from the bulk data-match from HMRC (on the available spreadsheet), you must ask HMRC to confirm this in the witness statements.

The guidance also includes sample questionnaires and “interview tips” for officials. We’ll bring you more analysis on this as we digest it.