Over the last 18 months, the Home Office has heavily relied on paragraph 322 (5) of the Immigration Rules to refuse Tier 1 General indefinite leave to remain applications where the Home Office have identified discrepancies with the Applicants tax documents. The Home Office has been accused of incorrectly applying the controversial rules to cut migration figures. Paragraph 322 (5) of the Immigration Rules provides discretionary grounds which the Home Office can rely on to refuse applications where there are issues with an Applicants conduct, character or associations. Immigration practitioners have argued that paragraph 322 (5) should only be used by the Home Office when there is a clear threat to national security and not when there are minor discrepancies with tax declarations. The Tribunals have been flooded with appeals relating to the misuse of paragraph 322 (5). The issue of the misapplication of paragraph 322 (5) of the Immigration Rules was heard at the Court of Appeal in the breakthrough case of Balajigari and others v Secretary of State for the Home Department [2019] EWCA Civ 673 and the judgement was handed down on 16 April 2019.
Background to Balajigari and others v SSHD
The case of Balajigari was heard alongside 3 other appeals (Kawos, Majumder and Albert) because they all arose out of the same Home Office practice which has attracted considerable controversy. All 4 appeals were challenging the misuse of paragraph 322 (5) by the Home Office. These appeals were referred to as the test cases for “earning discrepancies”. The refusals were on the basis of discrepancies between earnings declared to HM Revenue and Customs and the Home Office. In these cases, the Applicants had mistakenly declared less income to the HM Revenue and Customs and in their visa applications declared a higher income. There were logical and reasonable explanations (mostly being innocent mistakes/miscalculations) behind the discrepancies but the Home Office refused the visa applications. It should also be noted that in some cases, the Applicants had already amended their declarations (which they are entitled to do by law) before submitting their visa applications.
The SSHD argued that he has correctly relied on paragraph 322 (5) of the Immigration Rules in cases where he believes that an earning discrepancy is the result of deliberate misrepresentations to make a financial gain. However, the Applicants argued that the discrepancies stem from mistakes, carelessness or ignorance. It was claimed that the SSHD was to ready to find dishonesty without an adequate evidential basis or fair procedure.
The crux of this case was the use of paragraph 322 (5) and whether the SSHD can rely on the said paragraph to refuse applications of this nature. The Home Office guidance on said paragraph gives examples of cases involving criminality, a threat to national security, war crimes or travel bans. However, it is unclear from both from the guidance itself and from the terms of the rule that it is not restricted to such types of cases.
What is Paragraph 322 (5) of the Immigration Rules that was referred to in Balajigari and others v SSHD?
Paragraph 322 (5) of the Immigration rules state:
“(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;
(5A) it is undesirable to permit the person concerned to enter or remain in the United Kingdom because, in the view of the Secretary of State:
(a) their offending has caused serious harm; or
(b) they are a persistent offender who shows a particular disregard for the law;”
One of the key arguments often put forward on paragraph 322 (5) refusals is that it is understood by practitioners that paragraph 322 (5) of the Immigration Rules was introduced to give the Home Office grounds to refuse to leave to remain applications where there were issues with serious crimes (conduct, character or associations) and threats to national security. However, the Home Office has been refusing leave to remain applications using paragraph 322 (5) where they have identified minor tax discrepancies. The Home Office argued that Applicants had deliberately declared less income to HM Revenue and Customs to avoid paying tax. In the vast majority of cases, Applicants admitted that there were discrepancies but claimed these were honest mistakes as they had prepared their tax documents without the assistance of specialist accountants. It should also be noted that in most cases Applicants had amended and corrected their tax documents before submitting their leave to remain applications. Therefore, it is unclear on what basis the Home Office was using paragraph 322 (5) to refuse applications. There was no obvious threat to national security or question marks around the conduct, character or associations as reasonable steps were taken to rectify innocent mistakes. Further, in some cases, it was the Home Office who had miscalculated the numbers.
What does Balajigari and others v SSHD mean for the future?
The Court of Appeal allowed all 4 appeals. All the appeals save Majumder were remitted to the Upper Tribunal. In Majumder, the decision was quashed.
The Court of Appeal first tackled the issue of whether the SSHD was entitled to refuse the applications under paragraph 322 (5). It was held that dishonest submissions of false earnings are conduct which can, and generally will justify refusal of leave under paragraph 322 (5). However, it was also held that it is not enough for the SSHD to merely suspect dishonesty.
It was held that the SSHD’s decision to refuse the applications was legally flawed because he proceeded in assuming the discrepancies were as a result of dishonesty. The SSHD ought to have given the Applicants an opportunity to proffer an innocent explanation. Further, it appeared that the SSHD did not consider the impact of removal and failed to carry out a balancing exercising in considering the factors which outweighed removal. Giving the Applicants an option of submitting an Administrative Review was not adequate as this procedure does not allow the Applicants to submit new evidence which was not submitted with the original application. It was held that the unlawfulness could have been avoided if the SSHD carried out his assessment using a “minded to” procedure, which informs the Applicants of his concerns and allowing an explanation.
As anticipated, the Court of Appeal also considered the relevance of Article 8 of the European Convention of Human Rights (incorporated into domestic legislation via the Human Rights Act 1998). The court held that in principle it is possible for Applicants to challenge a refusal of settlement under paragraph 322 (5) on the basis that it interfered with one’s Article 8 right. Where interference is found it would then be up to the tribunal to make a finding of dishonesty.
In light of the Court of Appeal’s judgement in Balajigari and others v SSHD, Applicants who have been refused leave to remain under paragraph 322 (5) may be able to successfully challenge the refusal or ask the Home Office to reconsider the initial decision.
Using Legal Representation to challenge a paragraph 322 (5) refusal following Balajigari and others v SSHD
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to challenge a refused application under paragraph 322 (5) of the Immigration Rules.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided. If your application has been refused under paragraph 322 (5), it may be possible to challenge the decision.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully challenge a paragraph 322 (5) refusal following Balajigari and others v SSHD
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application or appeal before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application or appeal and ensure that you meet all the requirements of the relevant rules.
Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to challenge paragraph 322 (5) refusals. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
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