A Y & J Help Client Achieve Successful Variation Of Leave Despite Having Been Alleged With Paragraph 322 (5) Of The Immigration Rules
Our client, Mrs B, entered the United Kingdom on 23 September 2007 after being granted entry clearance as a student. Later she was granted a Tier 1 Migrant Visa which was followed by two further Tier 1 (General) Visas. On 1st July 2016, Mrs B applied for Indefinite Leave to Remain as a Tier 1 (General) Migrant. In the time her application was being processed by the Home Office, Mrs B reached her continuous lawful residence of 10 years and, as such, decided to vary her pending SET (O) application to an application for long residence. Months later her application was refused by the Home Office on the basis of Paragraph 322(5) of the Immigration Rules, due to alleged dishonesty in the tax information submitted to UKVI.
How A Y & J Helped Mrs B to Secure Leave to Remain
Offering a second opinion
Prior to coming to A Y & J, Mrs B was advised by an immigration consultant to pursue an appeal against the decision of the Home Office. However, upon reviewing all avenues and having assessed the prospect of success for an appeal, A Y & J advised her to purpose a different route.
We were left in no doubt that her case was the same as many others whereby incorrect tax information had been submitted to the HMRC following previous submissions to the Home Office and that the discrepancy amounted to several thousands of pounds.
If she pursued an Article 8 appeal, we knew she would only succeed if she could provide a genuine and credible explanation for the error made on her tax return to HMRC by her accountant. But, because she was unable to contact her previous accountant to understand the errors made on her tax return, we could foresee that Immigration Judge would not accept the argument that the accountant made an error, and our client was merely a victim.
We, therefore, recommended the approach of submitting an ‘out of time’ application on the basis of her marriage to a British citizen.
Submission of An Out of Time Application
Our client had no adverse immigration history, and we were satisfied that she met the suitability and eligibility requirements under Appendix FM of the Immigration Rules, including those relating to income, being a genuine and subsisting relationship, and English language.
As the appeal was only a few days away, we needed to seek approval from the Court that the First-Tier Tribunal accepted the withdrawal appeal; to achieve this, we visited the Court on the day of the hearing to request the withdrawal. The withdrawal of the appeal was a success, and on the same day, an out of time application was submitted.
The Result: Our Client Was Granted Leave to Remain as a Spouse of a British Citizen Under The 5 years Route
Not only did we receive a decision on the application in less than 1 week following submission
Not only did we receive a decision on the application in less than 1 week following submission, but we also managed to secure our client leave to remain under the 5 years route, meaning that she can apply for settlement after a further 5 years.
Had we pursued the appeal and failed on the evidence of tax inconsistencies, the best we could have attained for Mrs B would have been limited leave to remain, meaning she could only have applied for settlement after a further 10 years.
Once again, A Y & J Solicitors succeeded on a 322 (5) case, saving the client’s time and money, and allowing them to settle in the UK much earlier.