27 Oct PARA 322(5) TIER 1 GENERAL VISA SAGA
Many applications for indefinite leave to remain (ILR) are being refused under Paragraph 322(5) due to tax discrepancy and amendments. The relevant rules relating to this are as follows:
Immigration rules part 9: grounds for refusal Refusal for leave to remain, variation of leave to enter or remain or curtailment of leave 322. in addition to the grounds for refusal of extension off stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, except that only paragraphs (1A), (1B), (5), (5A), (9) and (10) shall apply in the case of an application made under paragraph 1591 of these Rules.
(5) 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.
Innocent individuals are facing difficulties for genuine applications and are having to undergo ruthless battles in court whilst having their right to work revoked. Sometimes the accountant is at fault whilst other times due to lack of knowledge of the law of tax, individuals face exhausting and time-consuming affray with the Judges in court.
The court rooms have become a battleground with innocent individual’s lives being placed on hold due to incorrect number crunching from accountants and clerical or administrative errors. It seems people do not read the documents with due care and diligence as one would hope.
Tax fraud occurs when an individual or business entity consciously and deliberately falsifies information on a tax return in order to reduce the amount of tax liability. Tax fraud ultimately comprises cheating on a tax return in an attempt to avoid paying the entire tax obligation.
Innocent individuals are being accused of such acts due to wrongful tax returns being submitted or because individuals who have placed trust on their accountants to correctly undertake their jobs, failed them.
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Individuals who have never committed any crime or done something which would place them in a category of bad character are left in anguish and disrepair from the accusations placed on them.
Different approaches are being taken to prove their innocence. Some bring evidence from tax
experts and provide detailed representation for the attention of the judges in the court hearing, because let’s be honest here, all Judges are not well conversant in the area of tax law and need an expert to nudge them in the right direction. However, it is left to the Judges to use their discretion on whether they will accept these reports.
Other cases where the accountant is to blame, the individuals provide letters confirming that they are to blame for the incorrect submissions to the HMRC and are correcting their errors. Such are the facts of the case in the recent Judicial Review decision in The queen on the application of OLUWATOSIN BANKOLE WILLIAMS v Secretary of State for the Home Department where Upper Tribunal Judge Canavan granted the application for judicial review. In the decision and reasons, Judge Canavan states at paragraph 22:
“It is trite law that the refusal of an application for ILR has serious consequences and that an allegation of dishonesty must be established on the balance of probabilities with sufficiently cogent evidence to justify refusal under paragraph 322(5) of the immigration rules.”
Taking cognisance of the above, it is evidently clear that each case ought to be assessed on the individual facts. Most cases have recently been arising from discrepancies between the income declared to the Home Office to meet the earnings requirements of the immigration rules and the income declared to HMRC for tax purposes. It is up to the individual to provide the necessary evidence to negate these allegations. However, the allegation of dishonesty alone causes mental trauma to innocent individuals whom had no intentions to be dishonest. There are always some reasons or misunderstandings on someone’s part and the individual is left facing the blunt of this. There should be another category, besides dishonesty, which the individual can be placed in whilst the misunderstandings are cleared. Such accusations are
harsh and discriminating.
Individuals who can afford lawyers are favoured and provided the correct support to overcome this. But others who cannot get the correct legal advice are left stranded.
Law Lane Solicitors are currently dealing with various 322(5) cases and have won many cases for individuals. If you believe you have been wrongly misrepresented or need advice and support, we are here for you.