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