Sibu wrote:Mate, very sad to hear you story.
As I am someone who consider myself to be in the same boat, I am very keen observer of recent refusals. HO is very adaptive and changed their refusal basis as I believe lots of people go and challenge this via JR.
I have taken some time to analyse you refusal ground;
245CD (b) &(g) with reference to 19 (I) (j) (iv) and 322 (5)
• 245 B states that applicant should not fall for general refusal, which will be tackled when you read below or when below ground are challenged. This refers to section 322 (5)
• 245 G states that applicant must obtain points of 80 to qualify for visa; I am quite frankly surprised how this ground can be used because as the far as the refusal goes in your case is to do with previous income not current income or any points scoring criteria of current application. If so this ground will not stand in JR. Unless you have used same income source as previous application e.g. same self employed income. In that case read below.
• Section 19 (I) states secretary of state must be satisfied that income from genuine source or no points would be awarded. Again I am surprised that this ground is used. Because HO has already given you points and hence you were granted leave to remain in your previous application. Unless you are still using same source of income this ground will not stand. But you still need to have evidence to show you had a genuine business.
• Section 19 J iv is the killer, genuine income test. But now that you have amended and paid tax there by your income as per HMRC is same as HO. In my opinion HO is discriminating ILR applicant when it comes to tax amendments. HMRC has a long established process for tax amendments because HMRC understands and acknowledge that for whatever reason wrong tax might be disclosed and HMRC has given people opportunity to come forward and tell them. When people pay tax it is good for the economy as well. Unless HMRC has resolved dishonesty in a case and sanctioned hefty fines, why HO just pick on ILR applicants and accuse them of dishonesty. This would be a solid ground to argue in front of a Judge.
• 322 (5) – This is where HO has become very imaginative and quite frankly outrageous in its approach. National security threat? Really? I assume you are a law abiding citizen and if so this will not stand in front of a judge.
If you want to buy time postal application again is a good idea but I do not think it will change original decision.
HO is has lot of lousy grounds for refusal and it has become a numbers game for them, political pledge by blue party to reduce numbers by thousands and HO is picking of minor issues to refuse.
I think it’s better to fight this in the court. Home Office will refuse application again following their immigration guideline whether Tier 1 or Tier 2. Late amendment is a legitimate means of correcting mistakes and does not pose national threat to county or misconduct as long as HMRC does not give its verdict against you that you have been deceitful and dishonest. Everything is ‘deemed’ as per home office and inconsistency between HMRC and Home Office records does not indicate your employment isn’t genuine as I guess you have already provided supporting documents required in paragraph 19 (a) and (b) to prove that you have satisfied secretary of state about genuine employment previously so Paragraph 19 (i) does not really apply here.
I think paragraph 19 (j) can only be argued in the court if you have good explanation why there is a difference in income declared to HO and HMRC, backed up by evidence from accountant or bank statement if there is overstatement of expenses or payslip/contract letter etc if company is dissolved. Also HMRC records should be updated by the time you reach JR as it shows your intentions and good will to pay tax as soon as you have discovered an error.
I think this may also be a valid point in the court as home office is now considering income threshold based on tax year instead of 12 month period prior to applications submitted previously which repudiates its terms and conditions in paragraph 21 (a) and putting paragraph 19 (j) in its refusal against tax year income that applicant has not satisfied secretary of state. Secretary of state need to be satisfied about genuine employment based on supporting documents specified in paragraph 19 (a) and (b) which has already been submitted and points awarded for genuine employment test.
21. (a) for all applicants the period for assessment of earnings must:
(i) consist of no more than 12 months which must run consecutively, and
(ii) fall within the 15 months immediately preceding the application.
Inconsistency between fixed tax year and calendar months income does not necessarily indicate ‘deception’ or ‘false employment’ until there has been reliable evidence or detail from HMRC to support deemed allegation by Home Office to justify paragraph 322(5) of immigration rules.
