More than 70 people refused right to remain despite 2019 ruling that Home Office misused Immigration Act, report finds.
Dozens of highly skilled migrants from Commonwealth countries are still facing deportation almost two years after the court of appeal ruled the Home Office was acting unlawfully in refusing them leave to remain, according to a new report.
In 2018, MPs and immigration experts criticised the use of the controversial section 322(5) of the Immigration Act, which was designed in part to tackle terrorists and individuals judged to be a threat to national security.
The act was used to accuse highly skilled migrants, including teachers, doctors, scientists and engineers, of lying in their applications – either for making minor and legal amendments to their tax records, or having discrepancies in declared income.
It was hoped that a court of appeal ruling in April 2019 – known as the Balajigari case – would resolve the situation. The court ruled that the Home Office had been acting unlawfully by not giving this group of migrants an opportunity to explain tax discrepancies before refusing them leave to remain.
However, a new report from the NGO Migrants’ Rights Network (MRN), published on Wednesday, finds that at least 70 of these cases have “fallen through the cracks” since. All of the cases are from Commonwealth countries, including Pakistan, India and Nigeria, and all have been in the UK for 10 or more years, and have built a life, family and career here.
As a result, authors of the report have accused the Home Office of “racially discriminatory immigration policies”. Although more than 90% hold a postgraduate degree from the UK and nearly a quarter have postgraduate qualifications, many are now on the verge of destitution, forbidden from working, using the NHS, renting property or receiving benefits.
Four out of five have had no “minded to refuse” letter, a Home Office warning providing migrants the opportunity to explain any discrepancies.
The Home Office’s own internal guidance to case workers specifies that section 322(5) should only be triggered in cases involving “criminality, a threat to national security, war crimes or travel bans”. But the discretionary section also allows the Home Office to refuse an applicant by inferring that their “character and conduct” make them undesirable to be allowed to live in the UK.
Ahmed Tilal Pasha, 38, from Pakistan, has lived, studied and worked in the UK since 2003 and had been working as a sales consultant. His problems began in 2015 when the hostile environment rules relating to a discrepancy in his tax return prevented him from being granted indefinite leave to remain. He said the tax return was filed by his accountant and that he was innocent of any deliberate error.
He is living with his wife, who has a life-threatening heart condition, and their five-year-old daughter and three-year-old son in one room.
“I’m not allowed to work, we have sold everything we have. I’ve lost my job, I’ve lost my dignity and I’m mentally exhausted,” he said.
MRN and Highly Skilled UK, a support group that represents workers, are now calling for a reassessment of the decisions in the remaining cases and an end to the use of “good character” references under rule 322(5) for non-criminal acts.
They call for all highly skilled migrants with pending indefinite leave to remain applications to be granted the rights to work in the UK and visit family overseas.
Katharine Thane, the senior advocacy officer at MRN and a report author, said: “The criminalisation of these highly skilled Commonwealth migrants of colour is endemic of the government’s enforcement of hostile environment policies. The policies have made it impossible to build a life in the UK – and local authorities are picking up the bill to now support these families to survive. Leaving this group in legal limbo for non-criminal acts shows that we have not yet learned the lessons from Windrush.”
Kevin Foster, minister for future borders and immigration, said: “To equate these cases to Windrush is wrong and inflammatory. In 2019 the court ruled our use of these immigration rules was appropriate and we were justified to expect a full and convincing explanation about glaring discrepancies between their visa applications and their tax records.
“Our review found 88% of those refused under 322(5) claimed in their visa applications their earnings were more than £10,000 a year higher than was shown by their tax records – these are not small mistakes in tax records.
“The majority of the cases have either been concluded or are being actively reconsidered – the courts timescales are beyond our control, but we are working to resolve these outstanding cases fairly and as quickly as possible. Those awaiting the outcome of their application are not destitute, they have been granted permission to study or work while their cases are reconsidered.”