Recently, Applicants have faced issues receiving settlement following completing five continuous years in the UK as a Tier 1 (General) migrant. To qualify for the settlement, a Tier 1 (General) Migrant must be able to show that he/she has completed a continuous period of 5 years as a Tier 1 (General) and further be able to score 75 or 85 points under the PBS tier. Applicants must also be able to show that they have no criminal convictions, civil judgments against them, any issue of overstaying in the UK, nor that they are a person of bad character.
Prior to December 2015, the Secretary of State did not consider the tax affairs of those Applicants on Tier 1 (General) Migrant visas, and most settlement applications were approved without further enquires. Just before 2016, many Applicants began to fear their applications for settlement would be retained at their Premium Service appointments and subsequently refused due to amendments made on their previous tax returns. The Secretary of State began to consider Applicants’ HMRC records in order to establish whether those Tier 1 (General) Applicants had declared their previous earnings accurately to HMRC. The Secretary of State was only concerned with the previous earnings declared at the time of each Tier 1 (General) application. Following verifications with HMRC, those Applicants who had tax amendments to correct the income initially declared to HMRC at the time of the submission of their self-assessment had their applications refused and received allegations of deception under Paragraph 322 (5) of the Immigration Rules.
A few months later, the Secretary of State implemented a new strategy of refusing those Applicants with tax issues. Questionnaires were issued under which most Applicants would fail, and this evidence was used against the Applicants throughout their legal battle as a self-declaration of their wrongdoing whenever initial income was incorrectly declared to HMRC.
A NON-EEA national, residing in the UK since September 2006 and working in the IT industry approached us to seek clarification on this matter. He needed to overcome the potential refusal and alleged deception or bad character due to tax amendments on two of his financial years. The financial years were crucial to his settlement application as they related to his previous earnings provided at the time of his initial Tier 1 (General) and extension applications. During the consultation, we learned that he had established a Limited company that was generating a yearly income of over £50,000. The error made on the initial submission of his tax return was made by his accountant due to an oversight, however, this explanation was not sufficient to secure our client’s ILR.
we instructed an independent tax advisory bureau to give an independent opinion on the current approach taken by HMRC with those taxpayers that fail to file their tax returns accurately at the stage of the initial submission.
At the UKVI Premium Service appointment, we were expecting our client to be served with a questionnaire in relation to his previous earnings. But a few hours later we were notified that his settlement application was approved, and our client received his grant of indefinite leave to remain without further enquires or a questionnaire being served.
With our expert help, our client and his family are now enjoying their settled status in the UK and their children were able to register as British citizens.