Judge denounces use of rule against those who have made legal tax amendments

This article is more than 2 years old

This article is more than 2 years old

A judge has accused the Home Office of breaking the law and acting in a “nonsensical” way in trying to force two highly skilled migrants out of the UK by triggering a terrorism-related part of immigration law.

The two substantial judgments will boost those campaigning to halt the use of paragraph 322(5) of the immigration rules against people who have made legal amendments to their tax returns.

The judge quashed the Home Office’s decisions to trigger the power, saying the department had made errors in public law.

At least 1,000 highly skilled migrants seeking indefinite leave to remain (ILR) in the UK are wrongly facing expulsion from the UK under paragraph 322(5) for making legal amendments to their tax records, according to the support group Highly Skilled Migrants.

The judgments of the upper tribunal judge, Melissa Canavan, in the cases of Oluwatosin Bankole Williams and Farooq Shaik will strengthen the hand of the 20 MPs and a member of the House of Lords who are to establish separate pressure groups to persuade the Home Office to stop misusing the power.

In the Commons on Thursday, one of those MPs, Alison Thewliss, demanded a debate on what she said was “the incompetence of the Home Office” concerning 322(5).

“We were promised on 21 June that there would be a review in the next few weeks. This has not emerged,” she said. “Too many highly skilled migrants are waiting for this government to make a decision, living in poverty and racking up huge debts.”

The leader of the house, Andrea Leadsom, agreed to take up the issue directly with Home Office ministers on Thewliss’s behalf.

While at least 50% of immigration appeals against Home Office decisions succeed in the courts – a rate the Law Society said suggested the system was “seriously flawed” – the support group for those fighting paragraph 322(5) say their success rate is far higher, at 75.3%.

The figure is so high that it has caused legal experts to question whether the Home Office is cynically pursuing cases without merit.

In one of the recent rulings, Canavan cited a third upper tribunal judgment in which the Home Office was criticised for maintaining that migrants were responsible for the mistakes of their accountants, even when accountants later wrote to the government to admit culpability.

Canavan agreed that “the mere fact that an applicant is responsible for his own tax affairs does not lead to the inexorable conclusion that an applicant has been dishonest”.

Her judgment is at odds with a letter sent to the Lib Dem peer Dick Taverne last week by Susan Williams, a Home Office minister, defending the government’s use of the 322(5) power. “The courts have agreed that our conclusions were reasonable in such cases,” Lady Williams wrote.

Canavan said: “Where an applicant has presented evidence to show that he was not dishonest but only careless, the secretary of state is presented with a fact-finding task … The evidence must be cogent and strong.”