ILR Refused, Applying Tier 2 - URGENT

Hi All,

My ILR has been refused under 322.5 and 245CD(b), will this refusal will be mandatory refusal if i apply Tier 2 general now within 14 days. Urgent help is needed.

Thanks
Manav

What is your full UK immigration history and route to ILR?

What is the exact wording of the refusal, taking out personal details??

CR001 wrote: ↑

Tue Dec 18, 2018 1:23 pm

What is your full UK immigration history and route to ILR?

What is the exact wording of the refusal, taking out personal details??

HI CR001, ilr route was from 5 yrs tier 1 general, please find the exact wordings below

came as student in 2009 jan
applied psw in 2010
applied tier 1 in 2011
extension - 2013 - used a pvt ltd company here
ilr applied 2016

filed the tax late in 2016 for 2012-13 tax year before making ilr application and paid

decision Summary

We have considered your application for settlement in the UK as a tier 1 general migrant on behalf of the secretary of state. you application is refused under paragraph 322(5) and 245CD(b) of immigration rules.

General grounds of refusal

under para 322(5) it stated: grounds on which leave to remain and variation of leave to enter or remain in the UK should normally be refused.

322(5): the undesirability of permitting the person concerned to remain in the UK in the light of conduct (including convictionswhich do not all with para 322(1c), charactor or association or the fact that he represents a threat to national security.

any earliest reply, will be much appreciated

when u applied i have answer for u

Sorry, Do you mean when I applied ILR? If yes, I have applied ILR Sep 2016

CR001 wrote: ↑

Tue Dec 18, 2018 1:23 pm

What is your full UK immigration history and route to ILR?

What is the exact wording of the refusal, taking out personal details??

Below is the full wording of refusal -


The Secretary of State has conducted further enquires with HM Revenue and Customs (HMRC) to establish the self-employed earnings and company profits which had been declared to HMRC over the corresponding periods. HMRC records show the following information: -
Confirmation of Self-Assessment figures held Self-Employment Income

Tax Year Figures Supplied for verification by Home
Office Original Figures supplied to HMRC Date Submitted Latest Figures supplied to HMRC
2012-13 £17,856
2014-15 £20,634

In your previous Tier 1 (General) application dated XX September 2013 you claimed 20 points from total earnings of £38,212.00 from 18 October 2012 to 31 August 2013 this is claimed from salaried employment £20,356.00 and Dividend income from XX company £17,856.00


The evidence provided by HMRC shows you did not submit your self-assessment tax returns for years 2012-13 and 2013-14 until 27 July 2016. Also your company tax returns for year ending 31 October 2013 and year ending 31 October 2014 were not submitted until 06 July 2016 and 26 August 2016 respectively.
Therefore at the time of your application to UKVI, XX September 2013, your claimed earnings were not consistent with your declared income to HMRC during a similar time period.


In your application dated XX September 2013, if had you had claimed the same earnings to UKVI matching your non declared dividend income to HMRC your total earnings would have been £20,356.00 from your salaried employment only.

Consequently, total earnings of £20,356.00 means you would have been awarded Nil points for previous earnings.

We are satisfied that you have been awarded 20 points for Age, 35 points for Qualifications and Nil points for UK experience. Consequently, your total points would have been 55 and you would not have scored sufficient points under the Immigration Rules for leave to remain to be granted.

It is noted you claimed gross dividend income of £17,856.00 as earnings for your application to UKVI dated XX September 2013. The information from HMRC shows for period 01 November 2012 to 31 October 2013 you declared a business profit of
£14,503.00 and £0.00 profit for period 01 November 2013 to 31 October 2014. You also declared dividend income of £20,634.00 on your self-assessment return for tax year 2013-14.
It is a concern that you have claimed and declared a dividend income amount which is higher than the profit declared from your XX company

As part of your current application and the submission of additional documentation, you have clearly evidenced that your claimed earnings to UKVI were not consistent with your declared income to HMRC during your application dated XX September 2013.

In your personal statement you have said your accountants at the time, XX Accountants failed to file the accounts in time but informed you that all the accounts had been filed in time, You state you were not aware that this was not the case until receiving a reminder letter from Companies House in May 2015. It is a further concern that it took another fourteen months (July 2016) before you submitted financial records to HMRC to bring your tax affairs up to date. This raises doubt on· your credibility as the sole director of a limited company with control over financial matters of that company.

As part of your current application and additional information enclosed with the questionnaire, you have provided copies of form HMRC SA302 for the self­ assessment tax years ending 2012-13 and 2013-14. These show for 2012-13 you declared salaried employment income only, for 2013-14 you declared salaried income and a gross dividend income of £20,634.00,

In response to the questionnaire (q6) you have given details of the dividend income you received from XX Company. For tax year 2012-13 you have stated you received £17,856.67, for tax year 2013-14 you have stated you received Nil dividend income. It is a further concern that your responses do not reflect the details held by HMRC described above, This raises further doubt on your credibility and whether the
business from which the earnings are claimed can be shown to exist and be lawfully and genuinely trading.

It is your legal responsibility to ensure all chargeable income is declared to HMRC at the correct time and all liabilities due are satisfied. We do not accept a professional registered accountant would fail to submit tax returns at the correct time on behalf of a client.
You have stated (q12) that all tax returns were signed before submitting to HMRC, it is reasonable to expect you would have received some acknowledgement from HMRC and your accountants with regard to your tax records, yet you have stated it was a reminder letter from Companies House in May 2015 which made you aware of the fact your tax returns had not been filed correctly. We find it not credible that a professional director of a genuine trading limited company would not be aware of the financial status of their business.

Careful consideration has been given to the information you have provided to UKVI and the information you have provided to HMRC about your earnings in the United Kingdom.

As stated above, these earnings are significant for tax liability purposes and for determining whether you would have been eligible-for Tier 1 (General) Leave to Remain. It is clear you failed to provide information to HMRC about your profit from business and self-assessment income therefore this was significantly different to the earnings claimed to UKVI for your application dated XX Septembe,2013.

Consideration has been given to the explanation provided., based on your actions in declaring different amounts of income to HMRC and UKVI and your responses to the questionnaire, we are satisfied that the earnings claimed to UKVI were not consistent with your income declarations made to HMRC during a similar time. Consideration has been given to the explanations provided in response to the questionnaire and additional supporting evidence and this explanation is not accepted.
The Secretary of State is satisfied that the earnings you claimed in your previous Tier 1 (General) application of XX September 2013 are not consistent with your declarations made to HMRC in the relevant tax period. Had you declared earnings in your previous Tier 1 (General) application dated XX September 2013 which were consistent with the information provided to HMRC at the time of the application, you would not have scored sufficient points under the Immigration Rules for leave to remain to be granted.

We are satisfied that, based on your actions in declaring amounts of income to HMRC and UKVI at different time periods, you have either misrepresented your income to HMRC to reduce your tax liability or provided false information about your earnings to UKVI to obtain leave to remain, or both.


The Secretary of State has considered the time when you made declarations to HMRC, the reasons you have given for the discrepancies and the fact that both your personal tax records and company tax records were filed late. Having considered those circumstances the Secretary of State is satisfied that refusal remains appropriate and is not prepared to exercise discretion in your favour.

Your actions in declaring different amounts of income to HMRC and UKVI lead to the conclusion that considering your character and conduct it would be undesirable to allow you to remain in the United Kingdom. Your character and conduct with regards to declaring your income would lead to a refusal of your application under General Grounds Paragraph 322(5) of the Immigration Rules. Whilst a refusal under Paragraph 322(5) of the Immigration Rules is not a mandatory decision, it is considered your actions in declaring different income to HMRC and UKVI would mean that a refusal under Paragraph 322(5) is appropriate.

Immigration Rules
245CD. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements; indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.


245CD. Requirements for indefinite leave to remain
Under Paragraph 245CD it states: To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
245CD(b): The applicant must not fall for refusal under the general grounds for refusal (except that paragraph 322(1C) shall not apply if the applicant meets the conditions in (f)(i)-(iii) below), and must not be an illegal entrant.
Under (f) it states: Where the applicant: •
(i) received a Highly Skilled Migrant Programme approval letter issued on the basis of an application made before 7 November 2006,
(ii) was subsequently granted entry clearance or leave to remain on the basis of that letter, and

(iii) has not since been granted entry clearance or leave to remain in any category other than as a Highly Skilled Migrant or Tier 1 (General) Migrant, the applicant must be economically active in the UK, in employment or self-employment or both,

As you have been refused Indefinite leave to remain under 322(5) of General Ground for Refusal you do not qualify for Indefinite leave to remain under 245CD(b) of Immigration Rules


Under Paragraph 245CD (g) with. reference to Appendix A (Attributes) Table 3 sets out the points required to grant Indefinite leave to remain. You require 80 points to be granted indefinite leave to remain.



Age
Points awarded as claimed = 20

Qualification
Points awarded as claimed = 35


Previous Earnings
Points awarded as claimed = 25

UK experience
Points awarded as claimed = 5

Total points awarded = 85

Your application has therefore been refused Paragraph 322 (5) and Paragraph 245CD (b) of the Immigration Rules.

Please can any of the guru's reply on my issue urgently please

Hi All,

Please can some one help me with the advise, and also if we apply 10yrs lr by not filing AR for this rejection. WIll the work rights continue ?

Thanks
Manav

Anyone ?

You are now eligible for 10 year LR as you have been here lawfully for that period, if you haven't had major absences.

So, you could apply for SET (LR) or Tier 2 General.

However, HO will likely still apply 322 (5) for the reasons set out in your current refusal - so the chances for success are very low, in my opinion.

You can challenge the decision in court but again some of the time lapses are very difficult to justify.

So, sorry, but in my opinion, I do not see much of a positive outcome.

marcnath wrote: ↑

Thu Dec 20, 2018 6:17 pm

You are now eligible for 10 year LR as you have been here lawfully for that period, if you haven't had major absences.

So, you could apply for SET (LR) or Tier 2 General.

However, HO will likely still apply 322 (5) for the reasons set out in your current refusal - so the chances for success are very low, in my opinion.

You can challenge the decision in court but again some of the time lapses are very difficult to justify.

So, sorry, but in my opinion, I do not see much of a positive outcome.

Thank you very much for the reply.

From the summary of HO refusal, as per my understanding, I point them as below reason for refusal -

1) Late filing -
The reason why I was late is we had major family issues (series of deaths) from 2014 till 2016. The filing was due by July 2014. The accountant I hired had all the paperwork but whatever the reason returns were not filled and the accountancy firm went burst (got to know the firm no longer exist once I had companies house letter and started to contact accountant and can't get through). I took some time for me to hire a new accountant and get all the paperwork together.
The reasons and supporting documents (Death certificates) were provided to HO at the time of ILR application.

2) Dividend drew (Gross £17856) higher than company profit (Gross £14503) -
HO got this wrong and I have checked with the accountant. The company gross profit was £19510, Dividends were Gross £17856. The Gross profit submitted to HO in CT600 was £14503 after allowance for AIA of £5007. The accountant is ready to provide the explanation to prove HO read it wrong.

3) Income from self-employed for 2012 not consistent with HO and HMRC -
The company started in Nov 2012. Company financial year is 1 Nov - 31 Oct. Tier 1 Ext application made in Sep 2013.
The first dividend is drawn in May 2013 until Oct 2013 and related documents were provided to HO at the time of Tier 1 Ext application in Sep 2013. When filing SA, income from dividend was filed for 2013-14 tax year period as per the dates dividends were taken. And there was no income from dividends for 2012 - 13, hence is NIL.
It seems to me that HO got confused with the SA tax year dates and Company financial year dates.

There are no amendments at all in any of the returns filed.

I will be filing AR providing the explanation to HO. And if HO is still unwilling to accept. Then the plan is to make Tier 2 application.

What chances do you think i have in AR ?

Thank you very much for your reply

Thanks
Manav

You seem to have valid reasons, but it is tough to anticipate the chances of success.

But go ahead with the AR. If it still fails, your option is possibly only to go to the court.

smanav919 wrote: ↑

Fri Dec 21, 2018 12:17 pm

marcnath wrote: ↑

Thu Dec 20, 2018 6:17 pm

You are now eligible for 10 year LR as you have been here lawfully for that period, if you haven't had major absences.

So, you could apply for SET (LR) or Tier 2 General.

However, HO will likely still apply 322 (5) for the reasons set out in your current refusal - so the chances for success are very low, in my opinion.

You can challenge the decision in court but again some of the time lapses are very difficult to justify.

So, sorry, but in my opinion, I do not see much of a positive outcome.

Thank you very much for the reply.

From the summary of HO refusal, as per my understanding, I point them as below reason for refusal -

1) Late filing -

2) Dividend drew (Gross £17856) higher than company profit (Gross £14503) -
HO got this wrong and I have checked with the accountant. The company gross profit was £19510, Dividends were Gross £17856. The Gross profit submitted to HO in CT600 was £14503 after allowance for AIA of £5007. The accountant is ready to provide the explanation to prove HO read it wrong.

3) Income from self-employed for 2012 not consistent with HO and HMRC -
The company started in Nov 2012. Company financial year is 1 Nov - 31 Oct. Tier 1 Ext application made in Sep 2013.
The first dividend is drawn in May 2013 until Oct 2013 and related documents were provided to HO at the time of Tier 1 Ext application in Sep 2013. When filing SA, income from dividend was filed for 2013-14 tax year period as per the dates dividends were taken. And there was no income from dividends for 2012 - 13, hence is NIL.
It seems to me that HO got confused with the SA tax year dates and Company financial year dates.

There are no amendments at all in any of the returns filed.

I will be filing AR providing the explanation to HO. And if HO is still unwilling to accept. Then the plan is to make Tier 2 application.

What chances do you think i have in AR ?

Thank you very much for your reply

Thanks
Manav

Hi,Thanks,
To ur points 2&3 to arrive at constructive concept:-
Can u try add /provide mitigating Answers for below:-
A)
According to CompanyLaws[visit:gov.co.uk/companyLaws:-
A company may NOT payout more in Dividends than it's available profits from current&previous Yrs.

B)
It it therfore NOT credible that could pay yourself more earnings than your company actually made,unless u have taken Director's Loan!
Thanks

The issue is very simple - you declared x and y income for the purposes of immigration. Therefore you knew what your income was and that you would know there is a tax liability. The income was not declared or accounted for - that is your responsibility, no one else’s. Default position you have failed to account for tax and by doing so have failed to show you are of good character.

The story / explanation you have given; true or not, is so over used in regards to these cases it is now water off a ducks back both for the HO and the judiciary. The only way you will even get a sniff of this being overturned is going all the way to JR & even then I would give it less than a 10% chance of sucess.

As for Tier 2 application - I believe it will be a mandatory refusal however you have nothing to lose by trying.

gbptier1general wrote: ↑

Thu Feb 28, 2019 2:09 am

smanav919 wrote: ↑

Fri Dec 21, 2018 12:17 pm

marcnath wrote: ↑

Thu Dec 20, 2018 6:17 pm

You are now eligible for 10 year LR as you have been here lawfully for that period, if you haven't had major absences.

So, you could apply for SET (LR) or Tier 2 General.

However, HO will likely still apply 322 (5) for the reasons set out in your current refusal - so the chances for success are very low, in my opinion.

You can challenge the decision in court but again some of the time lapses are very difficult to justify.

So, sorry, but in my opinion, I do not see much of a positive outcome.

Thank you very much for the reply.

From the summary of HO refusal, as per my understanding, I point them as below reason for refusal -

1) Late filing -

2) Dividend drew (Gross £17856) higher than company profit (Gross £14503) -
HO got this wrong and I have checked with the accountant. The company gross profit was £19510, Dividends were Gross £17856. The Gross profit submitted to HO in CT600 was £14503 after allowance for AIA of £5007. The accountant is ready to provide the explanation to prove HO read it wrong.

3) Income from self-employed for 2012 not consistent with HO and HMRC -
The company started in Nov 2012. Company financial year is 1 Nov - 31 Oct. Tier 1 Ext application made in Sep 2013.
The first dividend is drawn in May 2013 until Oct 2013 and related documents were provided to HO at the time of Tier 1 Ext application in Sep 2013. When filing SA, income from dividend was filed for 2013-14 tax year period as per the dates dividends were taken. And there was no income from dividends for 2012 - 13, hence is NIL.
It seems to me that HO got confused with the SA tax year dates and Company financial year dates.

There are no amendments at all in any of the returns filed.

I will be filing AR providing the explanation to HO. And if HO is still unwilling to accept. Then the plan is to make Tier 2 application.

What chances do you think i have in AR ?

Thank you very much for your reply

Thanks
Manav

Hi,Thanks,
To ur points 2&3 to arrive at constructive concept:-
Can u try add /provide mitigating Answers for below:-
A)
According to CompanyLaws[visit:gov.co.uk/companyLaws:-
A company may NOT payout more in Dividends than it's available profits from current&previous Yrs.

B)
It it therefore NOT credible that could pay yourself more earnings than your company actually made,unless u have taken Director's Loan!
Thanks

Hi Smanav/All,
I hope ur AR-going good.
AR is less flexible w.r.t JR. But,u should try give constructive Approach in removing 322 from the decision of AR.This makes easier.
1)For u r point 1,Teddy in this forum gave good points to build up ur case/points.
2) You take help of Auditors/Strong Compliance-Accountants& come up strong points.
Explain that any company can go bankrupt on very next day,Revenue goes Up&Down w.r.t market&sales,try highlight the FI-figures variation & the number of months GAP between " SA tax year dates and Company financial year dates. " [This is bit ridiculous to teach Accounting principles to HO people!!!.......Why do we need to teach Accountancy to HO where we r NOT getting paid for this Explanations for their Inabilities of Ignorance in BASIC-Accounting practices.

Example:-Once a company's two consecutive P&L statements are drafted, u can not demand why the Totals are MATCHING/NOT matching ,as they belong to TWO different Periods,u can NOT demand them to be "MATCHING/NOT matching "
Even if u/some one have made SA-Amendments it is OK,as long as they are Genuine.[Amendment is NOT an Offence unless it is legally proved."It is NOT an Offence to fall before u actually start walking when u r a CHILD!!!!" ......meaning everyone falls but with Genuine/valid reasons"
Hope this helps u/All.

Hi Tier1general and frotier,

I did not understand about what you have said above but i think i was not clear in the explanation i have given, HMRC is aware of my earning as 17,856 NET and have taxed me on that which is paid and cleared.

Regardless of the explanation i have given on late filing, HO has failed to consider my income as 17856 as NET where i got taxed to it.. which clearly states in CT600.

But here, i am not Accounting guru to fully understand AIA or any taxation, hence i went to my accountant and to accounting barrister who have confirmed that it is the income HMRC would not impose the tax but it is something you can have only one time once your company is incorporated. I am still waiting for my AR decision.. will post the decision once received.

ThanksManav

Hi Tier1general and frotier,

sorry admin, it was not allowing to edit my post so i am re-posting it, you may delete the earlier one.

I did not understand about what you have said above but i think i was not clear in the explanation i have given, HMRC is aware of my earning as 17,856 NET and have taxed me on that which is paid and cleared and to be clear here i have not declared any different incomes to any one... both the organisations were completely aware of the amounts i have earned.

i do know the saga that people are assuming as soon as you say Self employed and 322.5... but clearly that isnt the case here - well in my eyes atleast.

Regardless of the explanation i have given on late filing, HO has failed to consider my income as 17856 as NET where i got taxed to it.. which clearly states in CT600 - again no amendments done in changing figures.

But, i am not an Accounting guru to fully understand AIA or any taxation, hence i went to my accountant and to an Accounting barrister who have confirmed that AIA is the income/allowance HMRC would not impose the tax but it is something you can have only one time once your company is incorporated. I am still waiting for my AR decision.. will post the decision once received.

Hope for the best

Thanks
Manav

smanav919 wrote: ↑

Mon Mar 04, 2019 4:58 pm

Hi Tier1general and frotier,

sorry admin, it was not allowing to edit my post so i am re-posting it, you may delete the earlier one.

I did not understand about what you have said above but i think i was not clear in the explanation i have given, HMRC is aware of my earning as 17,856 NET and have taxed me on that which is paid and cleared and to be clear here i have not declared any different incomes to any one... both the organisations were completely aware of the amounts i have earned.

i do know the saga that people are assuming as soon as you say Self employed and 322.5... but clearly that isnt the case here - well in my eyes atleast.

Regardless of the explanation i have given on late filing, HO has failed to consider my income as 17856 as NET where i got taxed to it.. which clearly states in CT600 - again no amendments done in changing figures.

But, i am not an Accounting guru to fully understand AIA or any taxation, hence i went to my accountant and to an Accounting barrister who have confirmed that AIA is the income/allowance HMRC would not impose the tax but it is something you can have only one time once your company is incorporated. I am still waiting for my AR decision.. will post the decision once received.

Hope for the best

Thanks
Manav

Hi,
Try start building ur JR with 322(5) this will help in building ur defence.
Pls visit Teddy posts for valid Late tax submissions to witn 322(5).
R u still waiting for AR?
Ask HMRC your earnings summary for all Years u r in UK,this will help u a lot.
Pls feel free to ask any doubts u have.
Wish u Good Luck.

smanav919 wrote: ↑

Wed Dec 19, 2018 4:01 pm

Hi All,

Please can some one help me with the advise, and also if we apply 10yrs lr by not filing AR for this rejection. WIll the work rights continue ?

Thanks
Manav

Hi ,
Can u pls HINT what date u applied AR?
R u still waiting for AR decision?
Thanks&God luck!

gbptier1general wrote: ↑

Wed Apr 03, 2019 4:06 pm

smanav919 wrote: ↑

Wed Dec 19, 2018 4:01 pm

Hi All,

Please can some one help me with the advise, and also if we apply 10yrs lr by not filing AR for this rejection. WIll the work rights continue ?

Thanks
Manav

Hi ,
Can u pls HINT what date u applied AR?
R u still waiting for AR decision?
Thanks&God luck!

Hi smanav,
Your chances of winning Appeal to refusal of HO for 322.5 for 5Yr-ILR while applying for 10Yr-LR are GOOD.
Provide below,so u can confidently may win ur case,this board is good motivation for all like u:-

-What is ur refusal ILR Date?
-Can u pls HINT what date u applied AR?
-R u still waiting for AR decision?
-What is ur earliest date u can put/plan to apply ur 10Yrs-LR?
Tier-2 is not mandatory!

Your work rights may be continued!
Thanks&God luck!