ILR Refused - paragraph 322 (5)

All,

I applied for ILR set (o) in feb 2016.Received letter from HO today confirming my ILR has been refused. Following is a brief summary of case and reason for refusal. Any suggestion will much appreciated.

I have been residing in UK since October 2006. Currently i live with my wife (dependent) and two children (both born in UK). Our current leave to remain has expired in April.
I also mortgaged a house 2 years ago.

In my initial Tier 1 (G)application I claimed earnings in the region of £35K. this was made up of 3 sources.
1. employment (approx 11K)
2. self employment from Source A (Approx £20K)
3. Self employment from source B (approx £4.5K)
The tax return for that year was incorrectly submitted (earning from source A wasn't declared at all) this is because i was employed by source A in the same year and assumed they will be submitting all the earnings to HMRC without realizing i had to declare the self employment income myself. please bear in mind this was the first time i did self assessment return and stupidly i dint get any assistance.

I only realised this mistake when I received SA302s for last 5 years after submitting the application for ILR. After which I contacted HMRC to Amend my tax return from that year (yet to hear back from HMRC, it’s been 3 months).

Reason for refusal states my application was refused with reference to paragraph 322 (5). The case worker implies the mistake in tax return for year 2010-2011 was not a genuine and suggests I have been deceitful and dishonest in past therefor he can’t accept the income declared in this application as genuine hence award me zero points for earnings.

They have given me 14 days to ask for Administrative review.

Questions I have are:
Is section 322 (5) considered deception?
What is best course of action now?
How can the caseworker prove in a court of law that my failure to declare the correct amount in my tax return for year 2010-11 was not a genuine mistake?
Letter doesn’t say I have right for appeal or judicial review. Can i still go for one of these option?
They haven’t returned our passports or any other documents, will they send them later?
Does the fact that my children are born in uk help the case?

goli14 wrote:All,

...

Questions I have are:
Is section 322 (5) considered deception?
What is best course of action now?
How can the caseworker prove in a court of law that my failure to declare the correct amount in my tax return for year 2010-11 was not a genuine mistake?

322(5) is a discretionary refusal:

It is undesirable to let an applicant stay because of their character, behaviour or associations

... the key thing to consider is if there is reliable evidence to support a decision that the person’s behaviour calls into question their character and/or conduct and/or their associations to the extent that it is undesirable to allow them to enter or remain in the UK.

Ref: https://www.gov.uk/government/uploads/s ... _0_ext.pdf

My understanding is its assessed on balance of probabilities (not simply vague suspicions) and it will have been referred to a higher authority (senior caseworker) for such a decision.
It's too late for demanding that the caseworker proves them in a "court of law", the decision has been made until its overturned.

Your mission is now to refute that error or omission that has turned you into a persona non grata;
that's because you are responsible for your documentary evidence and material facts submitted (& must/will have signed a declaration vouching for them).

Many thanks for your inputs..any more suggestions will be welcome.

Hi Goli14,

Sorry to hear about your refusal, I wish you good luck!!

Did you receive any communication from UKVI prior to the refusal, to explain anything or produce any further documentation, or call for an interview?

Also, had you mentioned about your tax amendment anywhere in your cover letter or postal application?

All the best!

goli14 wrote:All,

I applied for ILR set (o) in feb 2016.Received letter from HO today confirming my ILR has been refused. Following is a brief summary of case and reason for refusal. Any suggestion will much appreciated.

I have been residing in UK since October 2006. Currently i live with my wife (dependent) and two children (both born in UK). Our current leave to remain has expired in April.
I also mortgaged a house 2 years ago.

In my initial Tier 1 (G)application I claimed earnings in the region of £35K. this was made up of 3 sources.
1. employment (approx 11K)
2. self employment from Source A (Approx £20K)
3. Self employment from source B (approx £4.5K)
The tax return for that year was incorrectly submitted (earning from source A wasn't declared at all) this is because i was employed by source A in the same year and assumed they will be submitting all the earnings to HMRC without realizing i had to declare the self employment income myself. please bear in mind this was the first time i did self assessment return and stupidly i dint get any assistance.

I only realised this mistake when I received SA302s for last 5 years after submitting the application for ILR. After which I contacted HMRC to Amend my tax return from that year (yet to hear back from HMRC, it’s been 3 months).

Reason for refusal states my application was refused with reference to paragraph 322 (5). The case worker implies the mistake in tax return for year 2010-2011 was not a genuine and suggests I have been deceitful and dishonest in past therefor he can’t accept the income declared in this application as genuine hence award me zero points for earnings.

They have given me 14 days to ask for Administrative review.

Questions I have are:
Is section 322 (5) considered deception?
What is best course of action now?
How can the caseworker prove in a court of law that my failure to declare the correct amount in my tax return for year 2010-11 was not a genuine mistake?
Letter doesn’t say I have right for appeal or judicial review. Can i still go for one of these option?
They haven’t returned our passports or any other documents, will they send them later?
Does the fact that my children are born in uk help the case?

was that the postal application or you went to Window ??

please call the HMRC Compliance team on 03000582415 and get your taxes amended

@ goli14, did you go to PEO or postal ??

goli14 wrote:All,

I applied for ILR set (o) in feb 2016.Received letter from HO today confirming my ILR has been refused. Following is a brief summary of case and reason for refusal. Any suggestion will much appreciated.

I have been residing in UK since October 2006. Currently i live with my wife (dependent) and two children (both born in UK). Our current leave to remain has expired in April.
I also mortgaged a house 2 years ago.

In my initial Tier 1 (G)application I claimed earnings in the region of £35K. this was made up of 3 sources.
1. employment (approx 11K)
2. self employment from Source A (Approx £20K)
3. Self employment from source B (approx £4.5K)
The tax return for that year was incorrectly submitted (earning from source A wasn't declared at all) this is because i was employed by source A in the same year and assumed they will be submitting all the earnings to HMRC without realizing i had to declare the self employment income myself. please bear in mind this was the first time i did self assessment return and stupidly i dint get any assistance.

I only realised this mistake when I received SA302s for last 5 years after submitting the application for ILR. After which I contacted HMRC to Amend my tax return from that year (yet to hear back from HMRC, it’s been 3 months).

Reason for refusal states my application was refused with reference to paragraph 322 (5). The case worker implies the mistake in tax return for year 2010-2011 was not a genuine and suggests I have been deceitful and dishonest in past therefor he can’t accept the income declared in this application as genuine hence award me zero points for earnings.

They have given me 14 days to ask for Administrative review.

Questions I have are:
Is section 322 (5) considered deception?
What is best course of action now?
How can the caseworker prove in a court of law that my failure to declare the correct amount in my tax return for year 2010-11 was not a genuine mistake?
Letter doesn’t say I have right for appeal or judicial review. Can i still go for one of these option?
They haven’t returned our passports or any other documents, will they send them later?
Does the fact that my children are born in uk help the case?

Hi Goli14,

Sorry to hear about your refusal. Can you confirm if u sent the SA302s with your postal application? Did they not asked to come for the interview before rejecting the application?

Goli14

Please keep us updated

goli14 wrote:Many thanks for your inputs..any more suggestions will be welcome.

Has there been any development in this case.

Guys...Sorry to have disappeared..been busy..just an update I applied for an AR thankfully they removed the allegatin of deception from but still refused my visa suggesting they were not sure about my earnings. I have since applied for a second AR..waiting for a response

goli14 wrote:Guys...Sorry to have disappeared..been busy..just an update I applied for an AR thankfully they removed the allegatin of deception from but still refused my visa suggesting they were not sure about my earnings. I have since applied for a second AR..waiting for a response

Can you share please you applied by post?
Did you declare the amendment to HO?