A group of Indian and Pakistani professionals on Tuesday won their appeal in the UK Court of Appeal against the British government’s decision to reject their right to settle in the country over a controversial national security clause.
The four applicants, three of whom are Indian and one Pakistani, had been refused their Indefinite Leave to Remain (ILR) in the UK under a skilled visa category over perceived dishonesty in reporting their earnings to the UK’s tax department.
Their case had been clubbed together for the purpose of the hearing at the Royal Courts of Justice in London, which ruled against UK Home Secretary Sajid Javid and found his approach was “legally flawed” to apply Paragraph 322(5) of the immigration rules related to conduct and character.
“The formal result is that each of these four appeals will be allowed,” concludes the judgment handed down by Lord Justice Underhill, Lord Justice Hickinbottom and Lord Justice Singh.
“The approach taken by the Secretary of State (Javid) in deciding to refuse the applications for leave to remain in each of these cases on paragraph 322 (5) grounds—which we take to have been his general approach in all earnings discrepancy cases—was legally flawed,” the judgment notes.
The judges conclude that the Home Office proceeded directly from finding discrepancies in reported earnings by the applicants to a decision that they were the result of dishonesty, without giving the applicants an opportunity to “proffer an innocent explanation”. They lay out a number of procedural directions, which are likely to impact other similar cases in future.
“It is a big relief but it has been a very long and difficult journey,” said Ashish Balajigari, from Hyderabad. His application for ILR must now be reassessed after the court found that he had not been given “an opportunity to make representations” in response to an allegation that he had “acted dishonestly” over what he had submitted was a rectified accountant error.
The case of another Indian professional, Somnath Majumder, was found to have been “plainly flawed” and a “clear breach of the duty of procedural fairness by the Secretary of State”. Majumder, who is believed to have since returned to India, has had the refusal of his settlement right in the UK “quashed”.
Fellow Indian national Avais Kawos and his wife and children will also be among those whose case must be reconsidered, alongside the case of Pakistani national Amor Albert.
The test case follows months of legal wrangles faced by professionals, largely from South Asia, who were entitled to apply for Indefinite Leave to Remain (ILR) after a minimum of five years’ lawful residency in the UK.
Legal experts noted a pattern of many such applications being turned down by Home Office caseworkers citing clause 322(5) of the UK Immigration Act, a discretionary rule aimed at denying convicted criminals and terrorists the right to live in the UK.
The Home Office questioned the “good character” of these professionals over apparent differences in their declared earnings to the UK tax department and the Home Office in order to make up the required income-related points on their settlement application.
The Court of Appeal judgment said the Home Office must also consider whether any such “dishonesty” renders the presence of the applicant in the UK undesirable or whether there are other factors which outweigh the presumption in favour of removal and admits that human rights factors would also come into play in such cases.
A Home Office spokesperson said that the department would consider the judgment and its response to it “carefully”.
“The Court agreed that the use of paragraph 322(5) is appropriate in these types of cases and that we are right to expect a full and convincing explanation from people when there are discrepancies in their tax records and immigration applications,” the spokesperson said.
The issue had also led to a Home Office review last year, with the government admitting errors were made in denying some professionals the right to live and work in the UK over the controversial clause. However, it has maintained the overall use of Paragraph 322(5) falls within policy guidelines.