Judicial Review challenging the decision involving 322(5) – Tax Deception Allegation Overturns in ILR Refusal

On January 19, 2018 | In Judicial Review | By A Y & J Solicitors

A Y & J Solicitors successfully challenged a Home Office decision by Judicial Review and allowed our client and her spouse to obtain Indefinite Leave to Remain (settlement).

Mrs D and her spouse are Indian nationals. They own property in the UK and Mrs D was a highly skilled professional skilled employee of a large financial institution. On 25 May 2016, the applicants (Mrs D and her spouse) applied for Indefinite Leave to Remain as a Tier 1 (General) migrant and dependant via a same day process at the Croydon Premium Service Centre. The applications retained and subsequently, each refused by decision letters dated 30 August 2016.

ILR Application Refused, UKVI Alleges Tax Deception, Poor Character

Mrs D’s decision letter of 30 August 2016 reasoned that:

  • Mrs D relied on total earnings of £35,598.98, including self-employed earnings of £11,261.11 for the period 14 January 2011 to 7 March 2011. This was evidenced by dividend vouchers and bank statements.
  • When assessing the applications for Indefinite Leave to Remain made on 25 May 2016, information was obtained from Her Majesty Customs and Revenues (HMRC) to verify declarations of earnings made to UKVI.
  • Information provided by HMRC showed a discrepancy between the self-employed (dividend) income declared to UKVI of £11,261.11, and information held by HMRC. HMRC information stated that for the “tax year 2010/2011, there is no record that you [Mrs D] have filed self [sic] assessment return to HMRC and therefore you have failed [to] declare £11,261.11 of income which would be liable for taxation.”
  • Given this, it was concluded by the Home Office that Mrs D’s “… actions in declaring different amounts of income to HMRC and UKVI lead to the conclusion that in light of your [the applicant’s] character and conduct it would be undesirable to allow you to remain in the United Kingdom. Your character and conduct with regards to declaring your income would lead to a refusal of your application under General Grounds Paragraph 32(5) of the Immigration Rules. Whilst a refusal under Paragraph 322(5) of the Immigration Rules is not a mandatory decision, it is considered your actions in declaring different income to HMRC and UKVI would mean that a refusal under Paragraph 322(5) is appropriate.”

A Y & J Solicitors Launches Paper Judicial Review—Refused

On 12 September 2016, A Y & Solicitors assisted the applicants in applying for an administrative review of Home Office’s decisions of 30 August 2016. In a decision letter dated 10 October 2016, Home Office refused the application for administrative review and maintained the original decision to refuse the applicants indefinite leave to remain.

A Y & J Solicitors then served a letter of claim on behalf of the applicants dated 9 November 2016 to Home Office pursuant to the Judicial Review. Home Office replied to this in a letter dated 16 November 2016 seeking to defend the decision-making challenged. The formal claim for Judicial Review was filed by the client with our help and assistance on 22 December 2016.

On 30 March 2017, an Upper Tribunal Judge refused permission for our clients to claim judicial review on a paper consideration.

Oral Hearing is Successful, Home Office Approves ILR & Pays Fees to Client

Permission for Judicial Review was granted on 23 June 2017 by an Upper Tribunal Judge at Field House.

On behalf of the applicants, we renewed the application for permission to claim Judicial Review at the Oral Hearing. Permission for Judicial Review was granted on 23 June 2017 by an Upper Tribunal Judge at Field House. In August 2017, the Government Legal Department (GLD) for Home Office sent a Consent Order agreeing to quash the original indefinite leave to remain decision, reconsider their applications and pay the Applicant’s reasonable costs.

A Y & J Solicitors continue to pursue a favourable ruling for our clients, and in December 2017, Home Office reconsidered their decision and granted our client Mrs D and her spouse settlement.

We were pleased to assist Mrs D and her spouse in obtaining settlement (Indefinite Leave to Remain) by successfully challenging the decision involving 322(5) – tax deception allegation. We are now negotiating with GLD to claim costs for our client and there is potential for a large damage claim against Home Office.

A Y & J Solicitors

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