Post
by teddy0409 » Sat Jun 23, 2018 10:20 am
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.
If Not We, Then Who?
