Successful Judicial Review after ILR Refusal Following Allegation of Deception Under Paragraph 322 (5)
A NON-EEA national (Ms C) arrived in the United Kingdom in November 2009 with leave to enter as a Tier 4 (General) student valid until January 2010. In 2011 she applied for leave to remain as a Tier 1 (General) Migrant and this was granted until July 2013. In June 2016 Ms C was granted further leave to remain as a Tier 1 (General) migrant valid until July 2016. Following completing five years of continuous leave to remain as a Tier 1 (General) migrant, she applied for settlement. However, the Secretary of State refused the ILR application.
ILR Application Refused, Deception Alleged Under Paragraph 322 (5)
The refusal letter stated that enquires had been made with the HMRC and their records stated that no earnings had been declared by her employer during the financial year 2010/11 which she had claimed as previous earning points during the first Tier 1 (General). Because of this, the Secretary of State also did not accept that the income for the settlement application was from genuine employment and awarded no points under paragraph 245CD(b) and (g) of the Rules. Furthermore, Secretary of State alleged deception under Paragraph 322 (5) of the Immigration Rules.
As the Points Based System does not attract a right of appeal, Ms C was given 14 calendar days to apply for Administrative Review (AR) challenging the Secretary of State’s decision to refuse her application. Ms C was not aware that the records held by HMRC were not accurate, nor that her previous employer had failed to register the employment with HMRC or pay the tax. At the time of the AR decision, she had no evidence to produce regarding her previous earnings, and even if the client had evidence to substantiate the case, it would not have been considered according to the AR guidance. The AR was conducted, and the Secretary of State maintained the decision and allegations of the deception regarding the previous earnings.
Client Attempts to Defend Position Through Pre-Action Letter on Allegation of Deception 322 (5)
The next step taken by the client was the submission of a Pre-Action Letter, which contained only the same legal arguments presented at the time of the AR application. The Pre-Action letter was not accompanied by any explanation or additional evidence from her previous employer, or the efforts taken by the client seeking clarification regarding her earnings not being declared to HMRC during her employment. Because of lack of expert knowledge, the Pre-Action Letter failed, and the client was looking next to filing a Judicial Review (JR) application.
A Y & J Solicitors brings Successful Results at Judicial Review and Costs Awarded to Client
The JR process is not only costly, but also draining, and during the process, applicants have no legal status where they can retain their right to work.
Although it was great news to know UKVI was considering the matter again, we felt that the fairness element was not undertaken by UKVI regarding the legal fees the client spent during this process. Had UKVI initially requested additional information, clarification or documents while considering the client’s settlement application, additional legal expenses would not have been incurred by our client. At A Y & J Solicitors negotiated the conditions of the consent order as it was in the best interests of our client to recover her legal costs from the JR procedure.
Because of our hard work, the UKVI quashed the original ILR decision, granting the client and her dependent settlement and paid the costs incurred during the JR process. This family received their ILR and the reinstatement of their right to work within 6 months of the date of the original ILR refusal.
We are pleased that we could help this family who is now due to apply for British Nationality.