Court of Appeal Judgement on Controversial Paragraph 322(5) Cases

The Court of Appeal has found Home Office stance on applying the controversial use paragraph 322(5) of the Immigration Rules to refuse settlement to migrants as “legally flawed”.

The Court of Appeal reviewed 4 linked appeals against the Home Office decision and all 4 appeals were decided against the Home Office with a recommendation of a major overhaul to make refusals under paragraph 322(5) legal.

The appellants in each case have challenged decisions made by the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal had upheld decisions by the Home Office to refuse their applications for settlement under the “Points-Based System”. 

The Home Office refusal in each case was on the basis of paragraph 322 (5) of the Immigration Rules, which applies where it is “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact that he represents a threat to national security”. It contended that it had reached a proper decision that the discrepancies were the result of the appellants dishonestly mis-stating what they had earned, and that that constituted conduct of the kind caught by paragraph 322 (5). Each of the appellants says that the discrepancies were the result of innocent errors and that the Home Office’s decision to the contrary was unlawful. 

The main points of principle decided by the Court of Appeal’s decision are as follows: 

1. The dishonest submission of false earnings figures to HMRC or to the Home Office is conduct which can, and generally will, justify refusal of leave to remain under paragraph 322 (5). Contrary to what is sometimes said (though not submitted by the appellants in this case), paragraph 322 (5) is not concerned only with cases where an applicant poses a threat to national security.

2. It is not enough that the Home Office should suspect dishonesty. An application can only be refused under paragraph 322 (5) if the decision-maker makes an actual decision that any earnings discrepancies are the result of dishonesty on the part of the applicant.  

3. Before making such a decision the Home Office must notify applicants of its concern and give them a fair opportunity to offer an explanation.  

4. The fact that HMRC may have allowed a late amendment to a tax return without imposing a penalty does not preclude the Home Office from making a finding of dishonesty, and it is not obliged to ask HMRC whether any penalty has in fact been imposed.

The Court of Appeal also goes into considerable detail on whether these refusals are in breach of appellant’s rights under Article 8 of Human Rights Act 1998. It concluded that the Article 8 right to private and family life will “typically” be a factor, given the length of residence applicants will usually have spent in the UK. That means that tribunal can decide for itself whether the applicant had acted dishonestly in any appeal or judicial review challenge to the refusal, not just consider whether the Home Office’s conclusion was rational.

If you have been affected by such a decision then contact Cranbrook Solicitors today so that we can urgently review your case and take the necessary action.