The Home Office has wrongly tried to force at least 300 highly skilled migrants to leave Britain under an immigration rule used in part to tackle terrorists and those judged to be a threat to national security.
Paragraph 322(5) of the immigration rules requires migrants to leave the country for certain infractions citing “the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”. It has been condemned as an abuse of power by Members of Parliament and experts.
The latest review looked at 1,697 applicants refused under paragraph 322(5). The figures, show that the provision is being used to force migrants to leave the UK after making minor mistakes or legal amendments to their tax records, and suggests that up to 87 highly skilled migrants – including teachers, doctors, lawyers, engineers and IT professionals – have been wrongly forced to leave the UK under the terrorism-related legislation. A further 400 people may have been affected.
Those affected argue that they made legal amendments to their tax records after discovering mistakes while preparing to apply for indefinite leave to remain. The review found that the most common mistake made by the Home Office was its failure to distinguish between a late submission of tax and an amended tax return.
The deportees are largely made up of people who have lived in the UK for a decade or more and have British-born children. Many were given just 14 days to leave and were no longer eligible for a visa to visit the UK or any other country. The Home Office directly identified 56 cases where a formal reconsideration of its decision to make people leave was required. This included 37 cases where it was concluded that it was appropriate to give the applicant the benefit of the doubt and to grant them indefinite leave to remain.
The review also shows 143 cases where applicants won on appeal in the first-tier tribunal and 101 cases that were won in the upper tribunal, at judicial review.
The number of those wrongly affected is likely to be substantially higher as the review only considered cases heard in the period from January 2015 and May 2018. In addition, the first-tier tribunal has 372 cases outstanding and another 242 cases that could be allowed, which suggests that about a further 400 people could have been wrongly affected.
All of those affected were denied the right to work, rent property or use the NHS during their appeals. Some chose to leave the UK but many of those who chose to stay and fight their cases were forced into destitution, debt and mental health issues, with some considering suicide, the review found. Children had suffered severe trauma and their parents feared it would have a life-long impact on them.
The review revealed that 65% of Home Office 322(5) decisions were thrown out by the first-tier tribunal while 45% of applicants were successful at judicial review, against an ordinary applicant success rate of 28%. An extra 32% of “complex cases” could be wrongly decided, the review said.
It also revealed that across all immigration categories refusal of settlement applications was 5% until mid-2015, when it increased to 52% for tier 1 (general) migrants. Paragraph 322(5) of the rules has been a central reason given for the Home Office’s refusal of those in this group.
The Home Office has not responded to questions about whether it will provide compensation to those affected by its mistakes, whether those potentially wrongly forced from the UK will have their cases reconsidered, and if so, whether they will be invited back to the UK if it is found they were wrongly expelled. These actions were taken with victims of the Windrush scandal, to which this issue has been repeatedly compared.
A Home Office spokesperson said the results of the report were purely speculative and further that that department’s use of paragraph 322(5) is reasonable and to suggest otherwise is misleading. They denied the primary use of the legislation is fighting terrorism.
