The Home Office has published a Tier 1 General operational instructions guidance on paragraph 322(5) cases after a review of settlement refusals. The takeaway is that no application should be refused prior to establishing a dishonestly following a brief statement from HMRC and Home Office interview.
[textblock color=”#6D4281″]If you have been refused under paragraph 322(5) without interview or HMRC evidence , contact our immigration solicitors on 0203 909 8399 or complete our enquiry form online to overturn your Tier 1 General refusal.[/textblock]
Since January 2015, a total of 1,697 ILR applications from Tier 1 (General) migrants have been refused under a long-standing provision within the Immigration Rules, contained at paragraph 322(5). In early 2015, data sharing HMRC and Home Office extended a data sharing for Tier 1 (General) applications, due to concerns that many applicants had claimed self-employed earnings which were not genuine.
| Difference and timescale
|
No amendment made
|
After ILR application
|
Less than 3 months
|
Less than 6 months
|
Less than 1 year
|
More than 1 year
|
No timescale recorded
|
Total
|
||||||||
| Greater than £10k
|
473 | 28.5% | 185 | 11.1% | 259 | 15.6% | 166 | 10.0% | 99 | 6.0% | 100 | 6.0% | 208 | 12.5% | 1490 | 90% |
| £3k – £10k
|
51 | 3.1% | 19 | 1.1% | 24 | 1.4% | 14 | 0.8% | 11 | 0.7% | 7 | 0.4% | 28 | 1.6% | 152 | 9% |
| Less than £3k
|
8 | 0.5% | 2 | 0.1% | 1 | 0.1% | 1 | 0.1% | – | 0.0% | – | 0.0% | 6 | 0.4% | 18 | 1% |
| Total | 532 | 32.0% | 206 | 12.4% | 284 | 17.1% | 181 | 10.9% | 110 | 6.6% | 107 | 6.4% | 240 | 14.5% | 1660 | 100% |
Source: Review of applications by Tier 1 (General) migrants refused under Paragraph 322(5) of the Immigration Rules
Under the new operational instructions caseworkers will be considering the earnings claimed on the previous application(s) and compare this figure with the HMRC spreadsheet for claimed earnings of two tax years. The instructions apply on all migrants whose most recent grant of leave to remain was under Tier 1 (General).
[textblock color=”#6D4281″]For expert advice regarding paragraph 322(5) of the Immigration Rules, contact our immigration solicitors on 0203 909 8399 or complete our enquiry form online.[/textblock]
Where a caseworker identifies a discrepancy between the amount of income that an applicant has claimed to have earned on a previous application for LTR and the amount of income that an applicant has declared to HMRC the caseworker will first establish if there is a credible explanation for this discrepancy.
Evidence from HMRC
In all cases where a refusal is based on a discrepancy between a claim made to the Home Office on a Tier 1 (General) application and a declaration made to HMRC – caseworkers are instructed to obtain a Witness Statement from HMRC before a final decision is made on the application.
Home Office interview
The applicant will complete a questionnaire at the time of application and caseworkers where possible will interview them on the same day. Where it is not possible to conduct the interview on the same day, the applicant will be invited back at a later date.