20 January 2020

Home Office’s New Guidance on Refusing Settlement applications over taxation issues

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On 01 November 2019, the Home Office introduced specific guidance on settlement applications by migrants who previously held Tier 1 (General) leave and who declared different accounts of earnings to the Home Office and HMRC.

Paragraph 322 (5) of the Immigration Rules states the following:

In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, except that only paragraphs (1A), (1B), (5), (5A), (9) and (10) shall apply in the case of an application made under paragraph 159I of these Rules.

(5) 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.

The refusals under the above paragraph were previously challenged in the Court of Appeal in the case of Balajigari v SSHD [2019] EWCA Civ 673. In this case, the Court of Appeal found that the Home Office should give an opportunity to the applicants to respond to an allegation of deception or dishonesty before their applications are ultimately refused.

Subsequently, the Home Office published further guidance on 01 November 2019 setting out Tier 1 (General) settlement cases particularly in relation to the earnings declared by the applicants.

In the above case of Balajigari, the Court of Appeal stated that the Home Office must allow an opportunity to applicants to respond to any allegations, particularly when there is an issue regarding their declaration of income. Following this decision, the Home Office introduced “Minded to Refuse” (“MTR”) letters. These letters are put in place to inform the applicants about the Home Office’s intention to refuse the applications and to ask for further clarification.

The applicants, who are in receipt of MTR letters, are expected to provide a full, particularised, clear and genuine explanation to the Home Office supported with evidence where required.

About the Author

Zehra Tamkan
Zehra works for a number of corporate immigration and family law clients. She advises on immigration matters including but not limited to applications under Tiers 1-5 of the Points Based System, EEA applications, domestic workers, students, family cases, including unmarried partner and marriage visas, settlement and applications for British citizenship.

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