JR/Court Issues Guidance to HO for handling 322(5) rule

Dear Moderators,
Please do not remove or merge this with any other posts as it will be helpful to our fellow forum members who are currently fighting in JR,
Previously I posted the same and one of the moderators merged with another post where nobody could view,
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After a long battle, The forum members who are affected by 322(5) and are currently challenging in court can be bit relaxed and fight in court with ease...Though this guideline doesn't guarantee to secure a JR success but will have huge impact in the 322(5) winning ratio...It will for sure go up from 0.03% to 25%....

HO is obliged to take the following guidelines on-board before making just a mere discretionary approach..

It appears a Judge have issued a formal guidelines to HO for the application of 322(5) for tax reasons..

As received from a leading Barrister via Linkedin...
For the Judicial Review applications the Judge took the time to issue guidance as to the approach to be adopted by the Secretary of State.

The guidance is as follows.

(!) Where there is no plausible reason for the difference in tax figures the SSHD is entitled to draw an adverse inference as against the Applicant;

(2) Where evidence is provided to explanation the difference the SSHD must engage in a fact finding exercise to determine whether the inference of dishonesty is displaced;

(3) In that consideration the SSHD should remind himself of the relevant standard of proof, balance of probabilities but should also remind himself of the consequences of a finding of dishonesty;

(4) Simply blaming an accountant, or shutting one's eyes to the problem / difference will not be sufficient to displace a finding of dishonesty;

(5) Where an issue arises as to whether the individual has been careless or dishonest it will be for the Secretary of State to provide sufficient reasons for the reason for disbelief. However, the Secretary of State must consider the evidence pointing in both directions before drawing a conclusion. If this is so done properly then the Secretary of State's decision will likely not be impugned;

(6) There are legitimate questions for the Secretary of State including;
Whether or not the explanation is plausible;

(7) Whether documentation that should be in existence, it should be disclosed or an explanation as to why it is not provided;

(8) Why did the Applicant not realise that there was a mistake in their tax;

(9) Whether the Applicant has taken steps to remedy the situation and if so when were those steps taken;

(10) If in relation to 6 above an assertion is made and there is evidence is present the Secretary of State should consider it. If such evidence exists then the Secretary of State should call for it before making the decision, the failure to provide such evidence can lead to the Secretary of State refusing the application; and

(11) The Secretary of State should articulate the reasons for making the decision.
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Not sure this will be of great assistance to those refuse under 322(5).

Most of the cases i deal with are ones which the person amended their taxes shortly before applying.

I believe this order, unfortunately assists Home Office more that the applicant.

It fails to appreciate that the burden in fraud allegation lies on the Home Office, at all times.

He who assert must prove.

This guidance neither help SSHD nor the applicant, But it will serve greatly if either of them are not misusing it,
\***Points 2, 3, 5, 9, 10, 11***/ are the key elements here,
This is what lagging in most of the 322(5) cases where SSHD could simply assert the discretion and kept rigid in her decision, Thanks to these guidance where it will very much limit the SSHD and it will narrow down the wide scope of usage of 322(5),
Importantly, "The onus and burden lies with applicant in the point based system" was the main reason SSHD could win 90% of the JR's.
This will tremendously change as the above guidance put a check to SSHD and point 2 ask her to provide adequate finding before accusing the applicant,

The rest of the points are a real check to applicants where they cant simply blame on the accountant and hide themselves, In a self tax assessment a role of accountant is meager and a role of the applicant is larger. Secondly, the applicant can't expect SSHD to take a decision in favour of them where no reason provided for the lateness or amendment made.

Amending a tax return nearer to ILR period is only an allegation and it should fall if a resonable exlanation provided with evidence..

Hope this helps

Hi Obie and Teddy0409
This is good news at least for few people who are affected for 322(5), I applied ilr through tier 1 general in 2016, later my application was refused beginning of this year, reason was I didn’t declared self employment income in sa302 on time, but I declared within 1 year HMRC’s provision time, and it was well before (1 year and 8 months ) before my application, and important thing was there was no tax due, after that amendment even didn’t increased my tax liability, everything I explained in administrative reveiew but still HO kept the same decision, after AR I applied ILR LR as I completed 11 years in UK and still waiting for the decision,
Do you think there is bit hope in my case because of this guide lines from judge?

@donny123,
Involve your MP and ask them to chase HO if you have applied over 6 months,
You have higher success rate as 10 YR ILR will fetch in-country Appeal rights where the success rate is 50% compared to 0.03% of JR, If HO refuse to give appeal rights or give out of country appeal rights you can file a JR for that decision and most likely you will get the decision to have in country appeal rights,
If you have voluntarily submitted the amended tax with out any government body prompting you and You have provided reasons with evidences for why you submitted late? Then HO will struggle to win over you...

@teddy0409

Do 322(5) rule will apply to Tier 2 --> ILR people as well?? Please advice.

Thanks in advance.

Tier 1 or 2, If HO suspects there is a discrepancy mainly in the taxes paid in the past (Employed or Self-Employed) a 322(5) is applicable under HO's point of view...
For Tier 2, If your previous tax records are up to date and no amendments are made in the past, Then it is highly unlikely for you to attract 322(5)-General grounds for refusal under person of bad character and conduct,
Please ensure all your HMRC tax records are correlating with HO before applying under Tier-2

teddy0409 wrote: ↑

Fri Jun 29, 2018 1:01 pm

Tier 1 or 2, If HO suspects there is a discrepancy mainly in the taxes paid in the past (Employed or Self-Employed) a 322(5) is applicable under HO's point of view...
For Tier 2, If your previous tax records are up to date and no amendments are made in the past, Then it is highly unlikely for you to attract 322(5)-General grounds for refusal under person of bad character and conduct,
Please ensure all your HMRC tax records are correlating with HO before applying under Tier-2

Many thanks teddy0409. If the tax records are not correlating, what is the best solution? Can I pay the voluntary tax before applying ILR? Will it make sense? Please advice. Thx.

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:16 pm

teddy0409 wrote: ↑

Fri Jun 29, 2018 1:01 pm

Tier 1 or 2, If HO suspects there is a discrepancy mainly in the taxes paid in the past (Employed or Self-Employed) a 322(5) is applicable under HO's point of view...
For Tier 2, If your previous tax records are up to date and no amendments are made in the past, Then it is highly unlikely for you to attract 322(5)-General grounds for refusal under person of bad character and conduct,
Please ensure all your HMRC tax records are correlating with HO before applying under Tier-2

Many thanks teddy0409. If the tax records are not correlating, what is the best solution? Can I pay the voluntary tax before applying ILR? Will it make sense? Please advice. Thx.

Tier 2 General does not have the same rules as what the Tier 1 General route had. You cannot be self employed on Tier 2 so you would not be declaring income to HMRC to calculate your tax liabilities. Tier 2 General migrants must be on PAYE with their sponsor so your circumstances are completely different.

This topic and the case is relevant to Tier 1 General and the tax discrepancies as Tier 1 General migrants could be self employed or contractors and did not have to work on PAYE with a single sponsor only.

CR001 wrote: ↑

Fri Jun 29, 2018 1:18 pm

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:16 pm

teddy0409 wrote: ↑

Fri Jun 29, 2018 1:01 pm

Tier 1 or 2, If HO suspects there is a discrepancy mainly in the taxes paid in the past (Employed or Self-Employed) a 322(5) is applicable under HO's point of view...
For Tier 2, If your previous tax records are up to date and no amendments are made in the past, Then it is highly unlikely for you to attract 322(5)-General grounds for refusal under person of bad character and conduct,
Please ensure all your HMRC tax records are correlating with HO before applying under Tier-2

Many thanks teddy0409. If the tax records are not correlating, what is the best solution? Can I pay the voluntary tax before applying ILR? Will it make sense? Please advice. Thx.

Tier 2 General does not have the same rules as what the Tier 1 General route had. You cannot be self employed on Tier 2 so you would not be declaring income to HMRC to calculate your tax liabilities. Tier 2 General migrants must be on PAYE with their sponsor so your circumstances are completely different.

This topic and the case is relevant to Tier 1 General and the tax discrepancies as Tier 1 General migrants could be self employed or contractors and did not have to work on PAYE with a single sponsor only.

Many many thanks CR001 for your continuous support and help. I appreciate your help always.
So as per your comment "322(5) rule will not apply to Tier 2". It only applicable for Tier 1. Is that right??

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:25 pm

CR001 wrote: ↑

Fri Jun 29, 2018 1:18 pm

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:16 pm

teddy0409 wrote: ↑

Fri Jun 29, 2018 1:01 pm

Tier 1 or 2, If HO suspects there is a discrepancy mainly in the taxes paid in the past (Employed or Self-Employed) a 322(5) is applicable under HO's point of view...
For Tier 2, If your previous tax records are up to date and no amendments are made in the past, Then it is highly unlikely for you to attract 322(5)-General grounds for refusal under person of bad character and conduct,
Please ensure all your HMRC tax records are correlating with HO before applying under Tier-2

Many thanks teddy0409. If the tax records are not correlating, what is the best solution? Can I pay the voluntary tax before applying ILR? Will it make sense? Please advice. Thx.

Tier 2 General does not have the same rules as what the Tier 1 General route had. You cannot be self employed on Tier 2 so you would not be declaring income to HMRC to calculate your tax liabilities. Tier 2 General migrants must be on PAYE with their sponsor so your circumstances are completely different.

This topic and the case is relevant to Tier 1 General and the tax discrepancies as Tier 1 General migrants could be self employed or contractors and did not have to work on PAYE with a single sponsor only.

Many many thanks CR001 for your continuous support and help. I appreciate your help always.
So as per your comment "322(5) rule will not apply to Tier 2". It only applicable for Tier 1. Is that right??

Not for tax amendment issues no.

CR001 wrote: ↑

Fri Jun 29, 2018 1:26 pm

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:25 pm

CR001 wrote: ↑

Fri Jun 29, 2018 1:18 pm

Jack&Jill wrote: ↑

Fri Jun 29, 2018 1:16 pm

Many thanks teddy0409. If the tax records are not correlating, what is the best solution? Can I pay the voluntary tax before applying ILR? Will it make sense? Please advice. Thx.

Tier 2 General does not have the same rules as what the Tier 1 General route had. You cannot be self employed on Tier 2 so you would not be declaring income to HMRC to calculate your tax liabilities. Tier 2 General migrants must be on PAYE with their sponsor so your circumstances are completely different.

This topic and the case is relevant to Tier 1 General and the tax discrepancies as Tier 1 General migrants could be self employed or contractors and did not have to work on PAYE with a single sponsor only.

Many many thanks CR001 for your continuous support and help. I appreciate your help always.
So as per your comment "322(5) rule will not apply to Tier 2". It only applicable for Tier 1. Is that right??

Not for tax amendment issues no.

Much appreciate your help CR001. Thank you, God Bless You.!

Also see Letter from the Immigration Minister regarding the use of paragraph 322(5) of the Immigration Rules, 21 June 2018 & the rest of that thread.

One more positive news

https://www.theguardian.com/uk-news/201 ... eportation

any further update or news on.this topic guys ? Am sure there are loads affected peers who are waiting for more results to come out....

teddy0409 wrote: ↑

Thu Jun 28, 2018 4:50 pm

@donny123,
Involve your MP and ask them to chase HO if you have applied over 6 months,
You have higher success rate as 10 YR ILR will fetch in-country Appeal rights where the success rate is 50% compared to 0.03% of JR, If HO refuse to give appeal rights or give out of country appeal rights you can file a JR for that decision and most likely you will get the decision to have in country appeal rights,
If you have voluntarily submitted the amended tax with out any government body prompting you and You have provided reasons with evidences for why you submitted late? Then HO will struggle to win over you...

Hi Teddy/All,
This is 1000% helpful.
Can u pls throw some more LIGHT in 322(5) refusal(s) &Defending points w.r.t HO refusing on Tax issues comparing Earnings for TWO different Periods.For CIMA/ACCA accountant this a valid & for HO this seems a CRIME ,is a Accounting policy/Rules t Defend Same FI Statements may/may NOT match but u can NOT demand they should be same.The reason is HO refuses on context of SelfAssesment(SA) dated: Feb-2017(This Month claiming for ILR Earnings) & but CorpTax Dated:Dec2017 thus a GAP of 11-Months &HO foolishly comparing SA &CorpTax stating u paid lessTax&claimng more Earnings.
Accountant said this is SELF-Explinatory surprised to see HO so foolishly because thy do NOT hav MInimum basic ETHICS/Plocies of Basic ACCA Qualified Accountant's Knowledge if NOT FCCA/CIMA.
Pls can u add some defending Points on this.In this scenario is 322(5) refusal only.
Timely Appreciated.

donny123 wrote: ↑

Thu Jun 28, 2018 2:49 pm

Hi Obie and Teddy0409
This is good news at least for few people who are affected for 322(5), I applied ilr through tier 1 general in 2016, later my application was refused beginning of this year, reason was I didn’t declared self employment income in sa302 on time, but I declared within 1 year HMRC’s provision time, and it was well before (1 year and 8 months ) before my application, and important thing was there was no tax due, after that amendment even didn’t increased my tax liability, everything I explained in administrative reveiew but still HO kept the same decision, after AR I applied ILR LR as I completed 11 years in UK and still waiting for the decision,
Do you think there is bit hope in my case because of this guide lines from judge?

Hi Donny123,
Any update pls,my AR is still under process!
GoodLuck by the way!