Applying for ILR after 322(5) Tax discrepancy refusal

Hello All,

I have initially entered the UK 0n 8th Feb 2008 as student.
after my completing my Masters Varied to PSW Visa in De 2009.
after PSW varied to Tier 1 in April 2011 & 2013 (5 Years).

I have shown my income from self employment in the year 2010-2011. I have paid lower tax. I have amended the tax returns in the year 2015 before my application for ILR in2016 and paid all the balance tax.
all my other Tax years were paid on time and no amendments.

applied for ILR SET(O) in April 2016. refused in Sept 2017 on 322(5) due to amendments in TAX returns for the year 2010-2011.

After ILR refusal on sept 2017. applied for AR. AR also refused.

immediately After AR refusal my company offered to sponsor me Tier2 skilled visa.
The Tier 2 skilled worker visa was issued in Oct 2017 for 5 years.

despite refusing my ILR on 322(5) basis. home office issued my Tier 2 skilled worker visa.

I would like your guidance on possible outcomes if I apply for ILR (LR ) route as I have completed 10 lawful years from 08-02-2008 to 08-02-2018.
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Thank You.

Your ILR under the long residence very likely will be refused. Tax amendment issues affect you as the time spent under the 10 years must be lawful. If the home office suspects you gained Tier 1 General visa via deceptive means (i.e tax amendments), then the long residence application will also be affected. I suggest the 5 year route via skilled worker visa to ILR instead

Thank You for your reply Zimba.
I have not explained my case in full above.

I have received my Tier2 in Oct 2017 immediately after my ILR SET(O) refusal in sept 2017.

during my Tier 2 category, I travelled to india in March 2020 just before covid and was stuck there with travel disruption and fear of covid. I was in india for 22 months. was back in Jan 2022.

although my initial Tier 2 Visa was valid from Oct-2017 to Oct 2022.
My company had applied for Tier 2 again from india in Dec 2021 although my initial Tier 2 leave was still valid until nov 2022. I have been working all these time for my employer.

I was issued with Tier 2 Visa again from India. and travelled back to UK in Jan 2022.

as you mentioned if I apply for ILR through TIer 2 5 year route. I have absences above 180 days.

I have three options here:

1. Apply for ILR (LR) with dates for the qualifying periodsFeb-2008 - Feb 2018 ( 2010-2011 Tax discrepancy is the only issue).

2. Apply for ILR with Tier 2 5 year route ( long absences of 22 months due to pandemic is issue).

3. Apply for ILR (LR) in April 2023 for the qualifying periods April 2013 - April 2023 . (2010-2011) tax discrepancy will not cover in this period will long absence will be during this period).

Hope you understood my situation.

My Job falls under Shortage occupation list.
I own a house in UK, I have family in UK. my son is born here in UK.

Could you please suggest the best possible route.

Thank You.

Any thoughts on this please.

You do not qualify at all until 2027 when you have 5 years of lawful continuous residence under the Skilled Worker visa. The three options you mentioned cannot work I am afraid

I was hoping the 10 year ILR (LR) route for the period of feb-2008-feb2018. Is lawful.

prreddy wrote: ↑

Tue Oct 04, 2022 4:29 pm

I was hoping the 10 year ILR (LR) route for the period of feb-2008-feb2018. Is lawful.

I already explained above that the tax amendment issue affects the lawful nature of your residence in that period

Just a question.

If assuming the tax amendment is a false representation or dishonesty. Why would home office issue me tier 2 visa?. I was issued tier 2 visa twice after ILR rejection.

The new guidance on false representations says:

“If the false representation was found to have been made by the applicant (not a third party) in relation to a previous application, a current application for entry clearance must be refused and a current application for leave to remain should normally be refused. Separate provisions apply to applications under Appendix V and Appendix FM. You must take care to apply the immigration rule that is relevant to your case.”

And also mitigating factors:

“You must also consider any mitigating factors raised as to why, even if there were false representations, the person’s presence is not undesirable when their case is considered as a whole; in other words, whether there are positive factors (such as outstanding contributions to the community in the UK) that outweigh the dishonesty. If you find that, on balance, it would be undesirable to allow the applicant to remain in the UK, you must finally consider whether there are any exceptional reasons why the application should be granted.”

I have been in UK for over 14 years . Doesn’t my case outweighs the dishonesty considering my family life in UK, skill set, my conduct, and my contribution in taxes and no access to public funds?

Which guide is that ? I suspect the guide you looked at does not apply to applications under the skilled Worker rules.
The actual guide is this: https://assets.publishing.service.gov.u ... 2.0ext.pdf

On page 10 you can see in the table that the false representation only in the current application leads to refusal NOT the previous applications. Paragraph 9.7.1 Part 9 of the immigration rules only concerns itself with false representation in the current application being considered as far as I see.

For ILR, another guide must also be read that deals with the issue of Tier 1 general, earnings and false representation in detail: https://assets.publishing.service.gov.u ... s-v1.0.pdf

You have not lived in the UK continuously for 14 years. You have been away for close to two years which breaks your continuous residence. Note that even if you can make some sort of private life or human rights claim, that does not lead to any entitlement to ILR. You can fight this in court and simply manage to get leave granted outside the rules, assuming the best case scenario.

Thank You Zimba for taking time to reply to my questions. really appreciate it.

I was referring to the below guidance
https://assets.publishing.service.gov.u ... n-v2.0.pdf (page 12).

The guidance you referred as actual guide below looks like it applies to most of the immigration categories.

on page 10 I noted that false representation only in the current application leads to refusal NOT the previous applications. Paragraph 9.7.1 Part 9 of the immigration rules only concerns itself with false representation in the current application.

but in my Case I assume we have to look non-conducive grounds. and as far I see it is clearly says in sheet 13, Paragraph 9.3.1. and 9.3.2. of Part 9 applies.

".3.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).

9.3.2. Entry clearance or permission held by a person must be cancelled where the person’s presence in the UK is not conducive to the public good."


and I agree another guide must also be read that deals with the issue of Tier 1 general, earnings and false representation.

agree I have not lived in the UK continuously for 14 years. I was here continuously for 12 years. and that is suffice for ILR (LR) route.

but my doubt here is why have I been issued Tier 2 Visa if the home office thinks I'm dishonest and deceptive.
once from In country and once from Out of country.

for the same reason I think I have strong point I will be given ILR.

but could you please clarify If I'm missing something. Thank You.

You were continuously resident until 2020, and returned in 2022. You would need continuous residence up to the date of the application, but you were away recently. That (partially excused by COVID, but not entirely as you could have travelled way before Jan 2022) and the issue of your taxes makes it less likely that you ILR application at this stage would be successful.

Thank you for your inputs @contorted_svy.

For your initial comment about continuous residence.
https://assets.publishing.service.gov.u ... gov-uk.pdf

The above guidance clearly states on sheet 9:

“This page tells you how to decide whether an applicant has been continually lawfully resident in the UK when considering long residence applications.
Once an applicant has built up a period of 10 years’ continuous lawful residence, there is no limit on the length of time afterwards when they can apply. This means they could leave the UK, re-enter on any lawful basis, and apply for settlement from within the UK based on a 10 year period of continuous lawful residence they built up in the past. There is also nothing to prevent a person relying on a 10 year period that they may have relied on in a previous application or grant.”

And for the second point. I would want to understand the rationale behind approval of my Tier 2 and possible refusal of my ILR (LR). If the tax issue is a mistake . Then why grant any visa in the first place?

Hope you got my point.

Your comments please. And also other experts please comment on my current situation. Thank you.

As it was already mentioned, there is a doubt that your 10 year residence was lawful. I see what you say about the Tier 2 visa, but the Home Office's motivation are not always clear. You also stated you received a refusal, on what grounds?

ILR set(o)refused in 322(5).
My point is why have they issued me tier 2 visa,
if as per the new guidance if there is a dishonesty in tax issues. My entry clearance or leave to stay should be refused.

I didn’t understand you point regarding home office motivations.

We can't know why they granted you that leave when they refused the other one, if they were aware of the tax issue, so we can't speculate on that.

I found this on the reason you were given for the ILR refusal:

Solicitor weblink removed by moderator

Initially, it was intended for refusing applications for leave to remain on the basis that the Applicant had been involved in war crimes or was a threat to the national security of the UK. However, paragraph 322(5) of the Immigration Rules has recently been used to refuse applications due to issues with declaring HMRC tax.

Some of the recent media attention has involved circumstances in which an Applicant may have inflated their earnings to make it seem that they earn enough to meet the threshold or on the other hand, an Applicant may have reduced the amount of income that they earn, therefore declaring a smaller income to HMRC and as such, reducing their tax liability. This issue has mainly affected Tier 1 (General) applications for settlement, a route that closed on 6 April 2015. Tier 1 (General) was aimed at highly skilled workers who did not need a sponsor to work in the UK. They could come to live and work in the UK on an employed or a self-employed basis.

Based on your timeline, it could be argued that you deceived HMRC for 4-5 years (from when you declared an incorrect income to when you amended it). That definitely breaks your lawful residence. Why the HO decided to grant you a Tier 2 visa after this, we can't possibly know, but it's hardly an argument on the fact a new ILR application based on that residence period would be accepted.

You have been refused ILR because of your tax discrepancies, but maybe it wasn't an issue for another visa. The point is, regardless the fact you were given the visa, the discrepancy with taxes means your lawful residence was only regularised in 2016 (as per your timeline, when you paid the balance tax). This means you need a new continuous 10 year period of lawful residence. The HO has already established that your residence from 08-02-2008 to 08-02-2018 was not acceptable for ILR, so it's hard to advise it would now be considered so.

Moderators and Guru’s could you please give your views in my case please.

prreddy wrote: ↑

Wed Oct 05, 2022 8:22 am

Moderators and Guru’s could you please give your views in my case please.

Not sure there's much to add to all you've been told above. You're just not accepting it.

Your deception cost you your ILR. However, it doesn't cost you starting afresh!

I totally agree that my deception cost me ILR.

The home office guidance says otherwise isn’t it.
https://assets.publishing.service.gov.u ... 2.0ext.pdf

Is there a guidance I’m missing that says someone who deceived home office is not eligible for ILR but eligible for other categories?

prreddy wrote: ↑

Tue Oct 04, 2022 8:04 pm

I was referring to the below guidance
https://assets.publishing.service.gov.u ... n-v2.0.pdf (page 12).

First of all, you need to be careful while referencing or using any guide you see online. Some of the guides are still available online but are outdated or archived. The provisions in those guides must be ideally cross-checked with the immigration rules to verify as the rules trump any guidance document you see out there. That guide you used is from 2019 and is outdated so it should not be used as it references the paragraphs that no longer exist in the rules. Lots of major changes were introduced in the rules in 2020 and 2021. The current latest guide on suitability is the one I pointed to.

However, your problem is not that. Note that even before major rule changes, there were two main paragraphs that dealt with the grounds for refusals namely paragraphs 320(7A) and 320(7B). The first one dealt with the grounds for refusal in the current application and the latter dealt with the grounds for refusal based on a previous application. Even back then the rules only required mandatory refusal for false representation in the current application. If you look at the archived rules or guides, you can see only 'deception' in a previous application could be used to refuse an application rather than simply the accusation of false representation. These two are not treated the same for mandatory refusal.

You see this in an old outdated guide from 2014 based on those old two paragraphs: https://assets.publishing.service.gov.u ... .0_EXT.pdf

Note that there is a distinction between 'false representation and 'deception' for mandatory refusal. The new suitability guide tells you this:

There is a distinction between information that is false but where you are not satisfied there was an intention to deceive by the applicant and cases where you are satisfied there was deception by the applicant. If you can prove that the applicant has used deception, refusal of the application is mandatory

In all other cases where you cannot prove deception by the applicant refusal/cancellation is discretionary and if the applicant (or a third party) makes false representations or submits false information or false documents or fails to disclose relevant facts you may refuse the application

The UKVI has yet to prove you intended to deceive in order to gain Tier 1G visa but they suspect you did and therefore made false claims. This suggests that a refusal is not mandatory BUT discretionary. So your ILR was refused on 'false representation' grounds but later on, your skilled worker visa did not get refused because UKVI chose to exercise discretion. This allows UKVI to impose different standards for grant of visas vs ILR and so a case worker has the flexibility to refuse ILR but not a visa/entry clearance. I suspect if the issue was more serious, your skilled worker visa would have been refused too.

Thank you Zimba for the elaborate explanation.

As you mentioned,
I was also in the opinion that the Home office used discretion in my Tier 2 application and issued me the visa immediately after ILR refusal.as they could have thought my job is in shortage occupation list and I work for A grade sponsor. This could have outweighed the earlier decision. This is just an assumption.

So this the same reason I was assuming that I have a strong case with ILR (LR).

prreddy wrote: ↑

Wed Oct 05, 2022 5:22 pm

Thank you Zimba for the elaborate explanation.

As you mentioned,
I was also in the opinion that the Home office used discretion in my Tier 2 application and issued me the visa immediately after ILR refusal.as they could have thought my job is in shortage occupation list and I work for A grade sponsor. This could have outweighed the earlier decision. This is just an assumption.

So this the same reason I was assuming that I have a strong case with ILR (LR).

It is unlikely that they will grant ILR as discretion is very rarely exercised for ILR. Now SET(LR) is a human rights application so you get appeal rights and you may fight this in a tribunal if refused but as I already said, even a favourable outcome may not lead to ILR as you get no automatic entitlement to ILR as per rules

prreddy wrote: ↑

Wed Oct 05, 2022 5:22 pm

Thank you Zimba for the elaborate explanation.

As you mentioned,
I was also in the opinion that the Home office used discretion in my Tier 2 application and issued me the visa immediately after ILR refusal.as they could have thought my job is in shortage occupation list and I work for A grade sponsor. This could have outweighed the earlier decision. This is just an assumption.

So this the same reason I was assuming that I have a strong case with ILR (LR).

As Zimba explained it's not that likely that you would be successful, but if you wait a few years until your tax issues are 10 years in the past and attempt ILR again.

Zimba wrote: ↑

Tue Oct 04, 2022 4:30 pm

prreddy wrote: ↑

Tue Oct 04, 2022 4:29 pm

I was hoping the 10 year ILR (LR) route for the period of feb-2008-feb2018. Is lawful.

I already explained above that the tax amendment issue affects the lawful nature of your residence in that period

Hi,
Cr001 could you please explain me if he have not been given deception in 2017 for year 2010-11 he can still apply on long residency from 2013 to 2023 as he mention will he still get ILR because his all tax returns are cleared from 2013 onward.

Moon84 wrote: ↑

Thu Oct 06, 2022 2:08 pm

Zimba wrote: ↑

Tue Oct 04, 2022 4:30 pm

prreddy wrote: ↑

Tue Oct 04, 2022 4:29 pm

I was hoping the 10 year ILR (LR) route for the period of feb-2008-feb2018. Is lawful.

I already explained above that the tax amendment issue affects the lawful nature of your residence in that period

Hi,
Cr001 could you please explain me if he have not been given deception in 2017 for year 2010-11 he can still apply on long residency from 2013 to 2023 as he mention will he still get ILR because his all tax returns are cleared from 2013 onward.

Even that wouldn't fly.

during my Tier 2 category, I travelled to india in March 2020 just before covid and was stuck there with travel disruption and fear of covid. I was in india for 22 months. was back in Jan 2022.

After 6 months out, residency goes out the window.

Ticktack wrote: ↑

Thu Oct 06, 2022 2:24 pm

Moon84 wrote: ↑

Thu Oct 06, 2022 2:08 pm

Zimba wrote: ↑

Tue Oct 04, 2022 4:30 pm

prreddy wrote: ↑

Tue Oct 04, 2022 4:29 pm

I was hoping the 10 year ILR (LR) route for the period of feb-2008-feb2018. Is lawful.

I already explained above that the tax amendment issue affects the lawful nature of your residence in that period

Hi,
Cr001 could you please explain me if he have not been given deception in 2017 for year 2010-11 he can still apply on long residency from 2013 to 2023 as he mention will he still get ILR because his all tax returns are cleared from 2013 onward.

Even that wouldn't fly.

during my Tier 2 category, I travelled to india in March 2020 just before covid and was stuck there with travel disruption and fear of covid. I was in india for 22 months. was back in Jan 2022.

After 6 months out, residency goes out the window.

Hi,
My question is if UKVI not gave him deception for 2010-11 in 2017 and he have no gaps his 2013-2023 period,that still count lawful. Because his 2010-11 is not come in that period.