Home Of­fice ‘break­ing law’ in try­ing to ex­pel highly skilled mi­grants

The Guardian - - NATIONAL - Amelia Hill

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 legally amended 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 peo­ple seek­ing in­def­i­nite leave to re­main in the UK are wrongly fac­ing ex­pul­sion for mak­ing le­gal amend­ments to their tax records, ac­cord­ing to Highly Skilled Mi­grants, a sup­port group .

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 want the Home Of­fice to stop mis­us­ing the power.

In the Com­mons on Thurs­day, the Scot­tish Na­tion­als MP 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 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 Com­mons, 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 75.3%.

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

In one re­cent rul­ing, Cana­van cited a third up­per tri­bunal judg­ment in which the Home Of­fice was crit­i­cised for in­sist­ing mi­grants were re­spon­si­ble for the mis­takes of their ac­coun­tants, even when ac­coun­tants later ad­mit­ted 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 Lib­eral Demo­crat peer Dick Tav­erne last week by Su­san Wil­liams, a Home Of­fice min­is­ter, de­fend­ing the govern­ment’s use of the 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.” An­drews, holds a year-round cal­en­dar of Austen-themed so­cial en­gage­ments, in­clud­ing a house party, the Bath Austen fes­ti­val, an Austen Re­gency meet-up each June, and balls held on a reg­u­lar ba­sis across Eng­land. The 20 or so mem­bers are mostly women, with a hand­ful of men. Their oc­cu­pa­tions range from doc­tor to opera singer, bio­chemist to pub­lisher.

‘We were promised a re­view in a few weeks: this has not emerged’ Ali­son Thewliss SNP MP

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