Report: Highly Skilled Migrant Indefinite Leave to Remain Refusals & Covid-19 Realities

MRN has been working with the Highly Skilled Migrants (HSMs) and their families who remain in legal limbo with no indefinite leave to remain (ILR) in the UK. The interim report’s Executive Summary outlines some of the most concerning findings about the Home Office’ policy and decision-making and the impacts of these on people who were welcomed to build what they chose and believed would become a permanent life in the UK. Since the Home Office’s access to HMRC data, HSMs became easily-traceable migrants to target as part of the ‘hostile environment policies’. Although many were given some form of leave after it was found that the Home Office was acting unlawfully [Balajigari], there are at least 65 people whose cases have ‘fallen through the cracks.’

Our key findings for the remaining cases:

  • HSMs have been criminalised through the Home Office’s discretionary and subjective ‘bad character’ or ‘dishonesty’ judgements using immigration rule 322(5) in relation to historic self-employment tax discrepancies; some over 10 years ago. The Home Office has not justified why tax discrepancies fall under clause 322(5) and cause HSMs to fail ‘good character requirements’, making it ‘undesirable’ for them to remain in the UK; a disproportionate and double-standard applied to people born in the UK vs. those not.
  • All remaining HSMs without ILR are people of colour, originating from 6 South Asian and African countries. All of these countries are in the Commonwealth. All HSMs have also been in the UK for 10+ years and over 75% have children under the age of 10. Over 90% studied in the UK and hold a post-graduate degree, including MBAs.
  • 87% of the remaining HSMs enlisted help from an accountant for the tax returns with ‘discrepancies’, 83% of which were their first ever tax returns in the UK.
  • Inconsistencies between case decisions indicate that for many of the remaining cases, the Home Office did not undertake a sufficient “balancing exercise” in making its decision, that was “informed by all relevant factors”, including criminal and immigration record, dependents in school, “substantial positive contribution to the UK … and circumstances relating to the (mis)conduct in question” [Balajigari ruling 2019].
  • 80% of remaining HSMs have not received a ‘minded to refuse’ (MTR) letter which gives the chance to answer questions about the circumstances of the discrepancy and 38% have neither received an MTR nor been given a right of appeal allowing them to ‘tell their story’, as per the Government’s procedural justice guidelines. In all but the most extreme cases, the Yaseen judgement found that a balancing exercise must be done. Balajigari found that if an HSM applicant is found not to be guilty of conduct within clause 322(5), “then a serious injustice will have been done”.
  • For those with no leave, the combination of significant unexplained delays in Home Office and court decisions (87%), having no section 3C rights to work, rent, drive, healthcare, public funding etc. (for 45%), and exposure to the hostile environment without any sense of security has pushed them into a state of near or actual destitution or hopelessness.
  • Covid-19 has exacerbated already difficult circumstances for the HSMs and their families, causing further delays or reducing the financial ability to pursue cases. 45-48% say they are already homeless, destitute or unable to pay rent and have food insecurity. All say they or their partners have experienced significant declines in mental health. Many HSMs also report serious health conditions for them or their family members, some of which are disabilities, and some of which correlate with ILR uncertainty.

Based on these serious findings, MRN’s urgent asks to the Home Office include:

  • End the use of section 322(5) to criminalise Highly Skilled Migrants (HSMs) and other migrants who do not fall under the named refusal reasons in 322(5) (convicted criminal, national security threat, on travel ban lists).
  • Consider human rights grounds in Indefinite Leave to Remain (ILR) / Leave to Remain (LTR) applications, that because of the significant disadvantage and consequences of ILR refusals, European Convention on Human Rights grounds (including Article.8) are engaged.
  • Grant Section 3C rights: Treat those with pending ILR or LTR applications (neither decided nor withdrawn) as benefitting from the effect of Immigration Act 1971 section 3C leave, allowing HSMs and other migrants the right to work, rent, drive and have access to public funding support etc. The Home Office’s own policy states that a person “should not be disadvantaged” by the fact that their section 3C has ended and “cannot be resurrected”.
  • Provide emergency support for migrants in legal limbo without Section 3C rights during the Covid-19 pandemic.
  • Grant ILR instead of 30 months Leave to Remain in cases where HSMs have been successful in appeal and judges have made a discretionary judgement in favour of them in regard to their ‘dishonesty’.
  • Immediately reconsider cases:
  • Where it cannot be shown that the Home Office consistently and sufficiently applied a balancing exercising that took into account ‘all other relevant [and positive]  factors’, established ‘dishonesty’ under its own legal burden of proof, carried out an ‘exercise of discretion’ which placed the burden on applicants to prove that an ‘innocent mistake’ was not made.
  • Where refusal of ILR has been given without allowing the chance to answer questions and outline the discrepancy circumstances through a ‘minded to refuse’ (MTR) letter, right of appeal, or neither; indicating a procedural unfairness.
  • Where the accountant has provided a letter of their error (but this should not solely be relied upon where one does not exist).

We all need a secure place to call home and we all want to ensure that the UK emerges from the Covid-19 pandemic as a strong, cohesive and tolerant nation on the post-Brexit world stage. This position necessitates calling on the UK’s long tradition of equality and justice to ensure fair and compassionate immigration decision-making in which the dignity and talents of people from all nations around the world are safeguarded and recognised as needed for what lies ahead. This position also necessitates good relationships with our international partners, including the Commonwealth, which requires not treating migrants in a way that we would not tolerate for UK migrants overseas. The UK’s Highly Skilled Migrants (HSMs), like all people who move to the UK, deserve to be treated with fairness and dignity and given agency to build and maintain a life in the UK where there is no harm, material loss to others or damage to the public interest that justifies interference with their rights.

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