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Tier 1 General ILR refused (twice) discrepancy 322(5) JR

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monty87
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Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by monty87 » Tue Sep 13, 2016 9:57 am

Ladies and Gents, 8)

First, Thanks to Almighty God for His Grace.

Secondly, thanks to each one of you who have contributed to immigration board and I also recently joined in June to start contributing towards immigration board (You got to be fair in life!). I got the confidence from this board to fight my case and win it without much help from solicitor/barristers which I have seen and not much hope. I prepared my own grounds and presented to Upper Tribunal. I would like to share my experience so far and happy to suggest.

Got Tier 1 in March 2011, extension in Feb 2013 and expired on March 2016

26.02.16 - Applied PEO in Sheffield and refused the same day 322(5) tax deception, discrepancy in income declared to HMRC and HO for leave to remain in tax year 2013.

11.04.16 Admin review refused – HO maintained their decision. I did not really understand the original grounds of refusal on 26.02.16 and did not quite address the refusal points in Admin review until I shown both refusal letters to solicitor who explained why I have been refused. Basically, I am a sole trader and also working as PAYE as well throughout last 5 years, ILR income was only from PAYE. I filed tax returns myself from year 2012 – 2015 on time and included allowable expenses from both employment and self-employment as an error for tax year 2013. Also, accountant filed tax return in 2011 and paye company wasn’t showing up in hmrc record for some reason. I only came to know about these discrepancies after I have been refused admin review on 11/04/16. HMRC income was below threshold for initial (2011) and extension (2013) for tier 1 applications.

I applied again on 22 April 2016 PEO in Croydon and refused same day referring to previous refusal decision on 26 Feb 2016 and retrospective income declaration. Along with the fresh application on 22 April 2016, the I provided documentary evidence in the form of amended tax returns for relevant periods (2010/11, and 2012/13), confirmation of tax payments for the amended tax returns, as well as bank statements and a breakdown of expenditure for 2012/13, to demonstrate the discrepancy between the amount declared to the HMRC and the amount declared on the application for leave to remain in the UK for the tax years ending April 2012 and April 2013 were genuine errors. I knew HO will refuse my application however I wanted to give enough evidence on my character to fight my case in JR for second ILR application. Filed admin review and HO maintained the decision on 07.06.2016 (as expected). I then applied for flr(fp) within 14 days of AR refusal as I was 3 months short of my 10 years in September and I have my brothers/sisters/friends etc here and have sort of developed private/family life.

Meanwhile, I had been researching on previous tribunal cases on deception and UKVI general grounds of refusal guidelines, HMRC regulation, taxation laws, Tier 1 (Guide) as well as been reading immigration board. Alongside, I filed PAP on 04.07.2016 to challenge tier 1 ILR and HO didn’t reply so filed JR on 18 July 2016 as I was getting closer to 90 days to challenge 2nd application decision of 22 April 2016 and subsequent admin review. HMRC updated my tax years and send revised sa302 for year 2013 and manual calculation for year 2011 on 26.07.2016.

Home Office lodged their defence grounds in August 2016 and requested Upper tribunal to refuse permission for judicial review. Weight of my grounds was too heavy for Home Office to challenge in court and Home Office decided to reconsider and negotiate employment and legal cost after Judge allowed my appeal and judge mentioned that 322(5) should be invoked and SSHD has relied heavily on earlier application. Judge allowed my appeal on 29th Aug 2016 to challenge both decisions of Tier 1 General ILR refusal made on 22 April and subsequent admin review refused on 7th June 2016.

On 4th Sep I got letter from govt legal department to reconsider application decision and negotiate costs. Home Office gave up at an early stage and want to reconsider however I do not intend for a mere reconsideration by Home Office which can take up to 3 – 6 months. If it’s the Home Office giving in, they should settle the dispute and grant ILR. I am still in communication with Govt legal department, if Judge thinks that it is arguable that 322(5) should be invoked against me and Home Office is not contesting this anymore so it would suggest that Home Office should invoke 322(5) and grant ILR. Home Office always start with as little as possible to offer but since I have a strong case I will persuade them to grant ILR first and negotiate on costs or pursue full hearing and make overstay period (5 months so far) legal towards SET (LR) application too as a backup and costs claim.

I got biometric letter for FLR (FP) application on 30th Aug and but will possibly withdraw it or home office will ask to withdraw depending on Home Office negotiation.

I had planned everything from 26 Feb 2016 and managed to persuade both Home Office to give up before full hearing. It had been mentally frustrating and had sleepless nights to have suffered loss of income, funds, and job with no extension of visa conditions due to changes in appeal right and unlawful ILR decision.

From my experience, anything outside point based system is arguable and winnable. I personally think there had been harsh refusals recently from Home office and I wish the very best to anyone who had genuinely been a victim of tax discrepancies and do not lose hope. Everything depends on the weight on your argument, documentary evidence and RESEARCH - You don’t fail until you stop trying!

God Bless you all! : :)

vsk
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by vsk » Tue Sep 13, 2016 1:34 pm

Hi Monty87,

Hope everthing goes well for you. All the best mate.

My case is 2010/11 tax issue. My Tier 1 treshold is £35000 but I have showed 39K to HO at the time of initial Tier 1 application and declared £32.5K to HMRC. I amended the 10/11 return to £39K in May 2016 and payed remaining tax aswell.

That is the only tax year issue i had. I am due to apply my ILR but im worried about the retrospective tax file returned.

Do you suggest anything on my case please ?

monty87
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by monty87 » Tue Sep 13, 2016 4:36 pm

vsk wrote:Hi Monty87,

Hope everthing goes well for you. All the best mate.

My case is 2010/11 tax issue. My Tier 1 treshold is £35000 but I have showed 39K to HO at the time of initial Tier 1 application and declared £32.5K to HMRC. I amended the 10/11 return to £39K in May 2016 and payed remaining tax aswell.

That is the only tax year issue i had. I am due to apply my ILR but im worried about the retrospective tax file returned.

Do you suggest anything on my case please ?
Home office is likely to make an issue on retrospective changes to hmrc income. You should send revised SA302s from hmrc alongwith application, i think hmrc only provide tax calculation figures for 2010/11 now. I would also suggest to provide credible explanation why you have made changes and documantary evidence if it was genuine error to fight in JR if HO refuse it. All the best.

rush05
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by rush05 » Tue Sep 13, 2016 7:23 pm

Dear VSK,

Try to post your application.....Don't go in person.....attach the revised calculation that you got from HMRC......

Postal applications are dealt by a senior case workers........

Good Luck

vsk
Junior Member
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Joined: Tue Mar 15, 2016 9:29 am

Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by vsk » Wed Sep 14, 2016 5:13 am

Hi monty and rush,

Thanks for your replies.

I have my visa till end of 2017 so I'll get 7 years for SA302 (from 2010/11 to 2016/17).

If I apply next year this time can I only show SA302 from 2012/13 to 2016/17 ?? Or HO will check from 2010/11 also ??

This is only my thought so that I can reduce the risk. Any suggestion please adivise.

monty87
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by monty87 » Wed Sep 14, 2016 7:37 am

vsk wrote: If I apply next year this time can I only show SA302 from 2012/13 to 2016/17 ?? Or HO will check from 2010/11 also ??

This is only my thought so that I can reduce the risk. Any suggestion please adivise.
I understand where you coming from however Home Office will check income delacred during initial and leave to remain applications. Lets hope Home Office has access to more up to date hmrc database in 2017 and your revised figures reflect in their database. HMRC don't update online sa302s anymore which is an issue as it does not correlate with Home office and even if applicants made amendments, home office disregards it and rely on their enquiries which holds old information . HO will say "caseworkers are entitled to make enquiries to HMRC which they did and discovered discrepencies"

vsk
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by vsk » Wed Sep 14, 2016 8:04 am

Yes, i too got my revised tax calculations for my 2010/11 amendments in May 2016 and I have all my remaining SA302's.

Yes as you guys said i am still in doubt and worried about retrospective returns for 10/11 and fear in refusal. I will only go by postal application then.

thank you

rocktheparty
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by rocktheparty » Wed Sep 14, 2016 10:38 am

Hi Monty87
Congrats for your successful efforts.
I see you mentioned that HMRC updated your tax. Was it updated on papers or on their online systems too? I ask so because I have observed HMRC does send updated SA302 calc paper but never updates it on their system. And HO checks applican't info on HMRC system only.

Also when HO didn't give you appeal rights and you had to go for JR, can HO still request/ask upper tribunal to refuse permission for JR?
I ask so because I am in same situation as yours. And I am quite sure my application be refused too even though I amended my returns 1 year ago but HMRC didn't update in on their system (Only sent me updated calc which I submitted to HO). And a barrister told me that HO doesn't give appeal rights (lower/upper tribunals). So I guess only JR (high court) is the only option. So If I go for JR, can HO bring in tribunals to try to refuse my JR application?

Thanks

vsk
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by vsk » Wed Sep 14, 2016 3:39 pm

Hi rocktheparty,

Did you amend 1 year ago and for which tax returns and when ? Can you please elaborate your case please.

monty87
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by monty87 » Wed Sep 14, 2016 3:40 pm

rocktheparty wrote:Hi Monty87
Congrats for your successful efforts.
I see you mentioned that HMRC updated your tax. Was it updated on papers or on their online systems too?

Also when HO didn't give you appeal rights and you had to go for JR, can HO still request/ask upper tribunal to refuse permission for JR?

So I guess only JR (high court) is the only option. So If I go for JR, can HO bring in tribunals to try to refuse my JR application?

Thanks
HMRC updated on papers, revised SA302 for 2013 and manual calculation for 2011. It does not reflect in online system.

You first send PAP to Home office to avoid litigation and ask home office to reply in 14 days if they want to change or negotiate their refusal decision. You will need to lodge judicial review within 90 of original home office decision you want to challenge in court so even if home office do not reply within 14 days, you need to make sure you put an application for permission in upper tribunal within 90 day period. Home Office is also notified that you have submitted your application for permission and HO gets a copy of bundle and grounds you have presented. Home Office then send Acknowledgement of Service with their defense grounds asking upper tribunal to refuse permission on paper for judicial review. If judge thinks there is an arguable case, he/she will summaries arguable grounds and will grant permission otherwise, it will be 'refused on papers'. For more info how this works, check out below.

Weblink Removed

Home office don't generally give appeal right anymore on tier 1 applications however they have given appeal right in few cases depending on applicant circumstances. Judicial review is the only remedy to challenge Home Office.

All the best.

rocktheparty
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by rocktheparty » Thu Sep 15, 2016 8:38 am

Thanks monty87

I used to think that for JR, one goes to the High Court. And lower and upper tribunals are for people with appeal rights only. Thanks for clarifying mate.
Can upper tribunal judge ask HO to revoke 322(5) even while he is only deciding on whether or not to allow JR application? I thought revoking would come only during hearing of the case.

My 2012/13 SA was amended last year in october but HMRC didn't update it on their systems. And my PEO in May this year was refused for 322(5) and postal re application is in process currently. I have provided the updated SA302calc paper I received from HMRC but I don't think home office case worker even look into this. So decision would be same I guess and AR is of no use. Eventually I too will have to go for JR.
Have PMed you.

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CR001
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by CR001 » Fri Sep 23, 2016 8:06 am

Madan666 wrote:Hi Monty,
Congratulations on your success. I am a new member of this group and my ILR was refused for Tax discrepancies. Could able to share your knowledge with us, please. like the grounds ,example cases other Taxation laws that filed your case on, please

It will really help full if you could share your case grounds for us. Thanks
Can you refrain from tagging your vague query onto every topic you find. It creates confusion when members reply. Your multiple posts have been deleted. Suggest read the various T&Cs in the Announcement Page (click) to understand the forum rules.

Start your own topic with the details of your case.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

saidrehman
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by saidrehman » Sat Apr 08, 2017 8:52 am

@ monty87

Hi Brother,

It looks like i am on the same boat as you. can i have your email so i can contact you.

regards,

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Casa
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by Casa » Sat Apr 08, 2017 9:58 am

saidrehman wrote:@ monty87

Hi Brother,

It looks like i am on the same boat as you. can i have your email so i can contact you.

regards,
Personal emails are not permitted to be posted on the forum. This is for members personal security as spammers & scammers frequently trawl the forum for such information.
(Casa, not CR001)
Please don't send me PMs asking for immigration advice on posts that are on the open forum. If I haven't responded there, it's because I don't have the answer. I'm a moderator, not a legal professional.

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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by syed25 » Sat Apr 08, 2017 9:46 pm

hello everyone

i am new to this forum. i wanted to know i have applied for my ilr again as my previous application was rejected because my tax that i paiid didnt match HMRC although i did have sa302.

anyway i applied again and this time after i applied and got interview date my accountant break the news as he didnt add one month tax which makes it 2k difference :shock: :shock: now if i do something or even mail HMRC its going to be amendant case

my interview is on 16 april . :shock: :shock:
please advice me what to do

whicky
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by whicky » Wed Jun 21, 2017 1:49 pm

Hi Monty87,

MY ilr has been refused twice on 322(5) . The only option left is AR, pap, jr.

your advice will be very much helpful. My case is tax amendment for the year 10/11. Paid tax well before of ILR APPLICATION. CW knew that I have paid tax but now he is doubting on Genuity on income.

Please reply.

Chief786
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by Chief786 » Wed Jun 21, 2017 3:56 pm

whicky wrote:Hi Monty87,

MY ilr has been refused twice on 322(5) . The only option left is AR, pap, jr.

your advice will be very much helpful. My case is tax amendment for the year 10/11. Paid tax well before of ILR APPLICATION. CW knew that I have paid tax but now he is doubting on Genuity on income.

Please reply.

Hi Whicky,

Can you please explain what are the main points Home office raised in the refusal letter ? They must have mentioned some reasons. Thanks

whicky
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by whicky » Wed Jun 21, 2017 5:17 pm

Hi Monty87,

My application is refused under 322(5), 245CD(b) and 245CD(g) with reference to Appendix A (Attributes) and 19(i) and 19(j) of Appendix A of the immigration rules.

Brief summary of my case:

I have initially applied ILR at PEO Croydon on Feb 28th 2016, rejected same day with 322(5).
And after that made a postal application on Mar 14th 2016- rejected 10th June 2017 under the above-mentioned sections.

2010-11 was self-employment:

I have made tax amendments for the year 2010-11 and paid the amount on Nov 2015, HMRC sent manual SA302 with updated calculations on Dec 2015. I have submitted manual SA302 with amended tax figures with my first application. The caseworker said I have amended tax in order to get ILR application successful and rejected.
I have submitted Accountant letter admitting that it's his mistake with my second application. The case worker this time mentioned, though it's an accountant error it is your responsibility to check the figures as I signed the tax returns copy before submission, hence rejected. (This question was actually answered during the interview. Interviewer asked me "have you signed before submission" and I said yes).
And on top of that 2012-13 was a limited company and no amendments were done. All the taxes paid in time. still case worker keeps vaguely adding this year in refusal even after submitting all the related documents that proves nothing wrong with 2012-13 year.
Our deadline to AR is 28th June 2017. Can you able to help us with any grounds that help us to make strong Admin Review filed?
Your help would be really appreciated.
Thanks

whicky
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by whicky » Thu Jun 22, 2017 8:01 am

Hi Monty87,

Thank you so much for PM. However, I couldn't access it as I am newly registered.

whicky
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by whicky » Thu Jun 22, 2017 8:07 am

@Moderators,

Is there any other way to access PM apart from reaching 30 count. As I have just joined yesterday, the information given in the PM is so important for me as I have AR due on 28th Jun. I can't reach that 30 count by then.

Can you please let me know is there any other way.

Thanks

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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by CR001 » Thu Jun 22, 2017 11:56 am

whicky wrote:@Moderators,

Is there any other way to access PM apart from reaching 30 count. As I have just joined yesterday, the information given in the PM is so important for me as I have AR due on 28th Jun. I can't reach that 30 count by then.

Can you please let me know is there any other way.

Thanks
No, there is no way that your PM access will be enabled and members are reminded to post in public so that all can benefit and any incorrect advise can be corrected.

Any member who sends unsolunsolicited to other members risk have their PM privilege rem9ved permanently.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by whicky » Thu Jun 22, 2017 2:00 pm

Thanks for the response.

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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by Mountpleasent » Tue Aug 08, 2017 8:34 pm

monty87 wrote:Ladies and Gents, 8)

First, Thanks to Almighty God for His Grace.

Secondly, thanks to each one of you who have contributed to immigration board and I also recently joined in June to start contributing towards immigration board (You got to be fair in life!). I got the confidence from this board to fight my case and win it without much help from solicitor/barristers which I have seen and not much hope. I prepared my own grounds and presented to Upper Tribunal. I would like to share my experience so far and happy to suggest.

Got Tier 1 in March 2011, extension in Feb 2013 and expired on March 2016

26.02.16 - Applied PEO in Sheffield and refused the same day 322(5) tax deception, discrepancy in income declared to HMRC and HO for leave to remain in tax year 2013.

11.04.16 Admin review refused – HO maintained their decision. I did not really understand the original grounds of refusal on 26.02.16 and did not quite address the refusal points in Admin review until I shown both refusal letters to solicitor who explained why I have been refused. Basically, I am a sole trader and also working as PAYE as well throughout last 5 years, ILR income was only from PAYE. I filed tax returns myself from year 2012 – 2015 on time and included allowable expenses from both employment and self-employment as an error for tax year 2013. Also, accountant filed tax return in 2011 and paye company wasn’t showing up in hmrc record for some reason. I only came to know about these discrepancies after I have been refused admin review on 11/04/16. HMRC income was below threshold for initial (2011) and extension (2013) for tier 1 applications.

I applied again on 22 April 2016 PEO in Croydon and refused same day referring to previous refusal decision on 26 Feb 2016 and retrospective income declaration. Along with the fresh application on 22 April 2016, the I provided documentary evidence in the form of amended tax returns for relevant periods (2010/11, and 2012/13), confirmation of tax payments for the amended tax returns, as well as bank statements and a breakdown of expenditure for 2012/13, to demonstrate the discrepancy between the amount declared to the HMRC and the amount declared on the application for leave to remain in the UK for the tax years ending April 2012 and April 2013 were genuine errors. I knew HO will refuse my application however I wanted to give enough evidence on my character to fight my case in JR for second ILR application. Filed admin review and HO maintained the decision on 07.06.2016 (as expected). I then applied for flr(fp) within 14 days of AR refusal as I was 3 months short of my 10 years in September and I have my brothers/sisters/friends etc here and have sort of developed private/family life.

Meanwhile, I had been researching on previous tribunal cases on deception and UKVI general grounds of refusal guidelines, HMRC regulation, taxation laws, Tier 1 (Guide) as well as been reading immigration board. Alongside, I filed PAP on 04.07.2016 to challenge tier 1 ILR and HO didn’t reply so filed JR on 18 July 2016 as I was getting closer to 90 days to challenge 2nd application decision of 22 April 2016 and subsequent admin review. HMRC updated my tax years and send revised sa302 for year 2013 and manual calculation for year 2011 on 26.07.2016.

Home Office lodged their defence grounds in August 2016 and requested Upper tribunal to refuse permission for judicial review. Weight of my grounds was too heavy for Home Office to challenge in court and Home Office decided to reconsider and negotiate employment and legal cost after Judge allowed my appeal and judge mentioned that 322(5) should be invoked and SSHD has relied heavily on earlier application. Judge allowed my appeal on 29th Aug 2016 to challenge both decisions of Tier 1 General ILR refusal made on 22 April and subsequent admin review refused on 7th June 2016.

On 4th Sep I got letter from govt legal department to reconsider application decision and negotiate costs. Home Office gave up at an early stage and want to reconsider however I do not intend for a mere reconsideration by Home Office which can take up to 3 – 6 months. If it’s the Home Office giving in, they should settle the dispute and grant ILR. I am still in communication with Govt legal department, if Judge thinks that it is arguable that 322(5) should be invoked against me and Home Office is not contesting this anymore so it would suggest that Home Office should invoke 322(5) and grant ILR. Home Office always start with as little as possible to offer but since I have a strong case I will persuade them to grant ILR first and negotiate on costs or pursue full hearing and make overstay period (5 months so far) legal towards SET (LR) application too as a backup and costs claim.

I got biometric letter for FLR (FP) application on 30th Aug and but will possibly withdraw it or home office will ask to withdraw depending on Home Office negotiation.

I had planned everything from 26 Feb 2016 and managed to persuade both Home Office to give up before full hearing. It had been mentally frustrating and had sleepless nights to have suffered loss of income, funds, and job with no extension of visa conditions due to changes in appeal right and unlawful ILR decision.

From my experience, anything outside point based system is arguable and winnable. I personally think there had been harsh refusals recently from Home office and I wish the very best to anyone who had genuinely been a victim of tax discrepancies and do not lose hope. Everything depends on the weight on your argument, documentary evidence and RESEARCH - You don’t fail until you stop trying!

God Bless you all! : :)
Hi Monty87,any update on your case,have you reached any settlement with HO..?

vut88
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by vut88 » Tue Aug 29, 2017 3:07 am

@Monty87...Any Updates of your application?

b52
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Re: Tier 1 General ILR refused (twice) discrepancy 322(5) JR

Post by b52 » Wed Sep 27, 2017 6:14 am

hi,

I applied for ILR in Jan,2016 10 years long residency route PEO Birmingham. Application was held for further checks with HMRC. I contacted self assessment and found discrepency in 2012-13 return. Made ammendments immediately . I requested HO for return of documents. Later applied for ILR in May 2016, hmrc payment letter attached. I was refused with 322(5) saying that i only made amenments because of ILR. I was given right of appeal on human rights basis only.
First tier tribunal appeal was heard after 16th months wait in Sept, 2016
Appeal refused saying that i have no family in UK so i should go back.
Now i have applied to Upper tribunal.

I never had any tax discrepency previously apart from 2012-13. This was rectified immedeately after i knew about it. Reason was that i changed accountant in that period that led this error to happen.

I do not know how long more will take. Is anyone out there in similar situation.

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