Immigration Rules: Paragraph 322(5)

Alison Thewliss Excerpts

Wednesday 13th June 2018 Westminster Hall

[Siobhain McDonagh (in the Chair)]

Before I call Alison Thewliss, let me say that I think it has become obvious to everybody that there might be quite a strict time limit on speeches.

[Alison Thewliss (Glasgow Central) (SNP)]

I beg to move,

That this House has considered paragraph 322(5) of the Immigration Rules.

To assist those who wish to intervene or speak later, I will speak about the background to this issue and about recent case studies from my constituency, and then I have some questions for the Minister. That may help them tailor their remarks.

I pay tribute to the members of the Highly Skilled Migrants campaign group, who have now held four large demonstrations outside this Parliament and have been extremely active on social media. They have self-organised and worked hard to give this issue the attention it deserves. I also want to thank Amelia Hill at The Guardian and Kirsteen Paterson at The National, who have given this issue first-rate coverage.

For more than a year at least, the Home Office has been issuing highly skilled migrants, many of whom entered the UK via the tier 1 general route, with notices detailing that their leave to remain application has been refused. It seems that many of those decisions have been predicated purely on the applicants’ alleged poor character in the wake of amendments to their tax returns and income statements. In making those decisions, the Home Office has deemed highly skilled migrants a threat to national security under paragraph 322(5) of the immigration rules, which refers to

“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”.

That is highly inappropriate.

It is important to note that paragraph 322(5) is discretionary: it should be for the Home Office to determine whether to use it, based on the merits of each individual application. It also places the burden of proof on applicants, rather than on the Home Office. From my constituency casework, and from listening to highly skilled migrants who have contacted me, I have seen that that is regimented, calculated decision making. Individuals’ applications are refused whenever they supply details of different incomes, or seek to amend information in a tax return, often on the instruction of an accountant.

None of the migrants to whom I have spoken has any issues that should cause them to be considered a threat to national security, but the very invoking and recording of this paragraph could compromise their future work and travel. After all, what country would wish to accept somebody who had been refused by the UK on such grounds?

When an application is refused, it is incumbent on the applicant to challenge the decision through the courts. In many cases, the judge has overruled the Home Office’s decision, finding it entirely disproportionate. A number of refusals appear to have been predicated on nothing more than the individual making an honest mistake. As far as Her Majesty’s Revenue and Customs is concerned, when the correction is made, the case is closed. Some of the sums involved in those corrections are only a few pounds—sums of £1.20 and £1.60 have been reported—and many were from many years ago. For one of my constituents, it was from 2010. Many people have asked me, “If there was a problem back then, why didn’t it affect my status at that point?”

I raised this matter with the Financial Secretary to the Treasury at Treasury questions in May, and he confirmed that

“people should clearly continue to make appropriate changes to their tax returns. I reassure her and the House that Treasury Ministers and HMRC officials are working closely across Government—particularly with the Home Office—on the issues that she raised in order to ensure that we get these matters right.”—[Official Report, 22 May 2018; Vol. 641, c. 710.]

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Lady on bringing this matter to Westminster Hall for consideration. Does she agree that some of those affected are doctors—highly skilled, highly valued members of our medical society—in the Ulster Hospital in Northern Ireland and in hospitals throughout the United Kingdom of Great Britain and Northern Ireland? We must ensure that those who are living, working and making a difference in our communities, and are pouring into them, are able to continue to do that without the undue stress of overly onerous immigration procedures, caused by simple non-criminal mistakes on tax returns. Perhaps some in this House have made such mistakes themselves.

[Alison Thewliss]

The hon. Gentleman is absolutely correct. Many of the people I have spoken to are in shortage occupations and are much valued. They are the very people we wish to attract to this country to work.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Several highly skilled migrants in my constituency of Slough have had their Home Office applications refused due to the heavy-handed application of paragraph 322(5). Many who contacted me have lived in the UK for more than a decade and have British-born children, and are now in a state of despair. One told me:

“I have given my best years, and contributed to the growth of Britain. My private, family and professional life are established here. I am a law-abiding citizen and have never faced criminal charges of any kind.”

Does the hon. Lady agree that it is very difficult to respond to somebody in such circumstances, and that the Tory Government’s hostile environment must end?

[Alison Thewliss]

I agree. That chimes with many of the stories I have heard. We must think particularly about the impact on children, who do not know why their parents are not allowed to work all of a sudden. Some people have not been able to access medical care for their children, which is deeply worrying.

[Paul Masterton (East Renfrewshire) (Con)]

The hon. Lady is aware of my constituent, to whom this rule was applied. In many ways, the biggest impact was on his wife, because NHS Scotland removed her access to medical services, even though she was eight months pregnant. Although NHS Scotland and Home Office staff have very difficult jobs in highly stressful situations, mistakes can have serious consequences that are hard to unpick.

[Alison Thewliss]

I thank the hon. Gentleman for that intervention. I had cause to meet his constituent, and I was so concerned about his situation that I wrote to the Cabinet Secretary for Health and Sport in Scotland to ensure that all GP practices in Scotland understand that they cannot just take people off their lists in such circumstances. Certainly, women who are eight months pregnant need medical care and should not lose it due to Home Office errors.

[Stephen Timms (East Ham) (Lab)]

Will the hon. Lady give way?

[Alison Thewliss]

If the right hon. Gentleman lets me make a wee bit of progress, I will appreciate it.

It seems extremely odd to me that HMRC could be satisfied, but that the Home Office should treat the same behaviour as akin to deception at best and terrorism at worst. If I, the Minister or anybody in the Chamber made a legitimate, in-time correction to our tax return our lives would not be turned upside down—as the hon. Member for Strangford (Jim Shannon) said—and we would not have the threat of removal hanging over our heads. It is said that half a million British citizens amend their tax records every year within the one-year grace period that HMRC allows. Others, of course, do it outside that period. None of those people is treated as a criminal under paragraph 322(5). The only reason highly skilled migrants are treated in that way is their nationality. As far as I am concerned, that is discrimination under article 8.

In one case that was reported to the press, an individual who had come to the UK via the tier 1 route went through this process. He presented a letter from his accountant detailing that the error was the accountant’s fault, and a letter from HMRC explaining that it was satisfied that the individual was not acting dishonestly, but the Home Office refused to exercise any discretion or change its original decision. In another case, after an individual’s tax information was scrutinised by three different appeal courts, no evidence of irregularities was found. The individual’s lawyer noted that the Home Office had made a basic accounting error by confusing his gross income with his net income.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

The hon. Lady is making an excellent speech. That is one of the key points: Home Office officials do not know anything about tax, and they are making decisions about people’s lives based on their tax information. This responsibility has to be taken away from them today.

[Alison Thewliss]

I absolutely agree. Paul Garlick QC, who specialises in extradition and human rights law, said:

“The system is crippled by not having enough people to do the work while those who are there don’t understand the basics”,

as the right hon. Gentleman says. Paul Garlick continued:

“They genuinely have no idea of the difference between tax years and accounting years, or what is a legitimately deductible expense. My feeling is that since Theresa May’s announcement of a ‘hostile environment’ for immigrants, caseworkers have been told to look for discrepancies that could form the basis of an accusation that the applicant is lying, because that’s the quickest way to dispose of an application”.

[Teresa Pearce (Erith and Thamesmead) (Lab)]

The hon. Lady is making an excellent case. HMRC has wide-ranging powers and can prosecute when there is any whiff of criminality, but it has not done that in any of these cases because these are mistakes or small errors of the kind that many of us have made.

[Alison Thewliss]

The hon. Lady is absolutely right. If there were a case to answer, HMRC would have something to say about it.

This issue affects not just those individuals. Last week, I spoke to Saleem Dadabhoy, who employs 20 people in his business. If his situation is not resolved, all those people will be made unemployed and a British company worth £1.5 million will be wound up. That is economic madness, and the Home Office should carefully consider the impact of its target-driven culture on the economy, especially in these uncertain times.

I have spoken to many highly skilled migrants, all of whom have been distressed about the way they have been treated, having given the best years of their lives to the UK and made their home here. We should thank that group, not put them out.



My constituent, Omer Khitab, travelled to the UK on a study visa in 2006 and completed a master’s course in international marketing at the University of the West of Scotland in 2009. He then worked in journalism and marketing before starting his own business. His accountants completed his tax return on his behalf, and the errors they made inadvertently were rectified by my constituent a few months later. Omer has written documents from his accountants to prove that, and accepting full responsibility for the errors.

Omer also suffers from depression and anxiety, a factor that his GP and his psychiatrist have acknowledged would, without doubt, contribute to his inability to spot an administrative error in his tax return. His stress is only worsened by the ongoing nature of his case. He said:

“I feel this is my home, I thought my children will grow up here, I will get married and die here. That letter saying I don’t belong to this place, I am a threat to national security, it’s very hard to swallow”.

It is hard for all of us to swallow.

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

Does the hon. Lady agree that, given the association of that rule with terrorism provisions, the implications are wide ranging and can leave a black mark on people’s lives forever? It is difficult for them ever to get a visa or to work anywhere worldwide after all that.

[Alison Thewliss]

Absolutely. That is why there needs to be a proper and thorough inquiry into the use of the provision. If Home Office staff are being advised to use it as a means of refusing people, they are clearly not looking at the full implications or the possible long-term impact.

My constituent Omer was refused leave to remain on the basis that he had deceived the Department, which goes entirely against all the evidence that he provided. Furthermore, HMRC has written to Omer to say that its staff are satisfied that he has acted honestly and not tried to deceive anyone.

Mustafa Ali Baig also travelled to the UK to study in 2006. He obtained master’s degree in international marketing from the University of the West of Scotland in 2009. Mustafa and Omer have a lovely picture of the two of them graduated—two young boys with all their lives ahead of them, and Omer certainly is almost unrecognisable from that picture, given the stress he has been under lately.

Before coming to the UK, Mustafa obtained a bachelor of law degree at the University of the Punjab, and he has master’s degree in political science. He has worked in business development, marketing and public relations, and has undertaken voluntary positions for civil rights and social action groups. He also volunteers to run a current affairs radio show. He is very much part of the Glasgow community, and he has gone above and beyond to advocate for his friends.

As far as I am aware, there is no question as to Mustafa’s integrity, but, due to that immigration rule, as the hon. Member for Ealing Central and Acton (Dr Huq) has just pointed out, he has been told that he is a questionable character and a threat to national security—as a result of correcting a small error on his tax return in 2010. That is no basis on which to remove someone in such a way. His case goes to the immigration tribunal on 20 June—that proves that decisions on such cases are still being made, despite what the Home Secretary has said.

Mr Sanjeev Pande travelled to the UK in 2005 on a student visa and graduated from Glasgow University in 2008. He started his own IT business and was also employed as an IT consultant and project manager—a lucrative career. Most recently, he had been leading an IT project for a bank in Scotland, before his right to work was removed by the Home Office.

Mr Pande applied for ILR—indefinite leave to remain—under long-term residency rules in 2017. He had been in the UK for 12 years at that point. He hired an accountant, but his tax return submissions were subsequently questioned by the Home Office. As a result, Mr Pande made attempts to change his accountant and to rectify the errors, but the Home Office has continued to pursue him on the basis that officials believe him to be dishonest.

Most distressingly, Mr Pande was detained at Heathrow airport on his return from a family holiday in 2017. His passport and BRP—biometric residence permit—were confiscated by immigration officers, removing his right to work. That has a huge impact on the family finances, because he has a mortgage and other commitments. Judges found in his favour at both first-tier and upper tribunals. Indeed, paperwork from the first-tier tribunal states that in some detail—it is a long quote but it is worth putting it on the record—with the judge saying:

“The refusal letter is I think confusing in itself in relation to the Appellant’s income, but I have to say that I found both the Appellant and his wife to be credible witnesses. I do not think that they have acted dishonestly. The Appellant relied on the advice of an accountant. He was entitled to rely on that advice and whilst he is under a duty to check information, it is entirely unfair to expect him to have a level of accountancy and tax knowledge accorded to professionals in this field... He was clear that he sought clarification from the accountant but eventually, when he was unable to get satisfactory answers, he changed accountants… It also appears to me that the Appellant was unfairly treated by the Home Office. His passport was retained during the first appeal proceedings. As a result he was unable to find employment since employers refused to employ him without the benefits of his passport. He was, I think, therefore prejudiced and I consider that this matter should be taken into account in the question of proportionality.

Taking all of the above into account, therefore, I do not consider that the Appellant has acted dishonestly. He may have been misguided, but that is a different matter and I consider that it would be disproportionate in the circumstances to expect the Appellant and his wife to leave the UK, particularly as they own property in the UK, they pay tax in the UK and they have spent a considerable number of years here.”

The last case I want to highlight is that of a female constituent—I do not want to name her, because her children are at school in my constituency. She travelled to the UK from Nigeria and has been refused leave to remain in similar circumstances to the others, under paragraph 322(5) of the immigration rules. She legitimately made changes to her tax return, but the Home Office is again putting forward the argument that she has tried to deceive the Department and it has refused her an administrative review.

My constituent is a qualified accountant, and has been unable to continue seeking work in her field as a result of the status imposed on her by the Home Office. She has been made destitute as she has no recourse to public funds—many on tier 1 have no such recourse.

My constituent has been to my office to seek help in getting school uniforms for her children. Unable to work, she is struggling to keep her family afloat, and there is a real risk that she and her children will be made homeless as a result of the Home Office decision. Her landlord, the Wheatley Group, confirmed only yesterday that, due to the support of her church paying her rent, it was not to proceed with legal action to evict her at this point, but that option remains open. I am extremely grateful to the Wheatley Group for the discretion it has shown, but the situation is not sustainable—my constituent needs to get back to work.

The issue has been considered by the Select Committee on Home Affairs, and the Home Secretary corresponded with its Chair, committing to put all 322(5) applications on hold and to carry out a review by the end of May. As far as I can ascertain, that review has not yet been published and no further detail on it is available, although as I said in connection with my constituent Mustafa, 322(5) decisions are still being made.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I congratulate the hon. Lady on securing this debate, and I apologise for missing the first few minutes of it due to business in the main Chamber. She is absolutely right that the Home Affairs Committee, on which I sit, is still not clear where the Government are going on the matter. Does she agree that this scandal shows the wider systemic problem in the Department, as we have seen through Windrush, this immigration rule and a series of decisions being made wrongly when there is a hostile environment, a lack of discretion, cuts in staff and cuts in ability, as well as Ministers who, quite frankly, do not have a grip on what is going on in their Department? The net result is damage to individuals and their families.

--- Later in debate ---

[Alison Thewliss]

I absolutely agree. It is worrying that even the Home Affairs Committee cannot get answers on certain things. This rule is of huge concern, and decisions under it are clearly still being made, as I heard from people I spoke to at the Highly Skilled Migrants demo last week. They are clear upon that.

[Anneliese Dodds (Oxford East) (Lab/Co-op)]

The hon. Lady is being generous in giving way, and she is making a very powerful speech. Does she not agree that the Home Office was made aware of such issues in letters from me and others present in this Chamber back in mid-March, but no action was taken? Having such a delay in action is simply not good enough when that is affecting people’s lives in such a terrible manner.

[Alison Thewliss]

Yes, I absolutely agree with the hon. Lady. For some months, I have been trying to get answers for the constituents who have been to me. The woman I mentioned came to see me in January, and she still has no answers in her case. When constituents come to us, it is not always evident that they are affected under those particular rules, and we often have to see the refusal letter to understand exactly why the refusal has been made, but a growing number of people have been getting in touch with me about finding themselves in this circumstance. Those who are not my constituents I have encouraged to get in touch with their own MP, as I am sure they have done going by the number of people in the Chamber today.

To add insult to injury, The Times reported this morning that a new visa route for migrants who want to start businesses in the UK

“is to be expanded to include non-graduates under efforts to increase technological innovation.”

That is rank hypocrisy. How can the UK Government reasonably expect to attract new migrants to the country when they treat the highly skilled population who are already here, and have been for years, with such utter disrespect?

I have a number of questions, which I hope the Minister will assist with. When will the review that I mentioned be published? How many cases are in process, and how many are awaiting judicial review? I have asked the Home Office how many people have been refused under the provision, and I understand that Channel 4 News also put in a freedom of information request to the Department without getting an adequate response.

Was an instruction issued to start refusing cases under the rule? If so, by whom and when? On 2 May, The Daily Telegraph reported that Home Office caseworkers had discussed using previous amendments to tax returns to cast doubt on current tax returns. How widespread is that practice? Will the Minister allow people caught up in all this the right to work, the right to access NHS services and the right to rent during their appeals? They often lose those rights as soon as the administrative review is refused—that is the first line of appeal after the initial refusal—and, as was mentioned by the hon. Member for East Renfrewshire (Paul Masterton), that can have a serious impact, in particular on women who are pregnant.

Will the Minister tell me whether compensation is to be offered to those wrongly caught up in this mess, just like Windrush? People affected can be out tens of thousands of pounds, particularly if they cannot get legal aid for their cases, because they have not been able to work and have gone into debt and arrears.

Lastly, what does the Minister have to say about the impact of this policy on individuals? I have been told by many about the strain on their mental health; relationships with their family here and with relatives abroad, who they are not able to visit; the stress of having to report to the Home Office regularly, sometimes on a fortnightly basis; and the loss of employment. Does the policy have a wider economic impact?

The Home Office’s policy of deliberately targeting these highly-skilled migrants is yet another example of this cruel Tory Government’s hostile environment policy in action. The group being targeted here are highly skilled: they are doctors, accountants, IT professionals, teachers and academics, to name only a few. They have put down roots and contributed greatly to their communities.

The UK Government continue to talk about attracting talent, yet their behaviour towards this group shows that they clearly are not interested in retaining much of the highly skilled population who are already here—already well integrated and contributing hugely. I urge the Minister to take swift action now to support highly skilled migrants who have done us the honour of choosing to live here.

[Several hon. Members rose—]