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April 23, 2021

Immediate Responses to House of Lords Oral Question on Highly Skilled Commonwealth Migrants – 19 April 2021

In the shadow of the Sewell report on race and ethnic disparity and Home Office’s internal work to ensure that the discrimination found in the Windrush Lessons Learned Review happen ‘never again’, the Government’s 19 April response in the House of Lords on the Highly Skilled migrants seems to be unwilling to even acknowledge the depths any systematic discrimination found in its practice. The Government keeps vilifying the migrants themselves – for discrepancies that around 60% of UK self-employment tax returns contain -, shining the light away from themselves for any potential malpractice. The response demonstrates a ‘shutting down’ of any further self-reflection needed to investigate what we understand to be discriminatory profiling of non-white migrants and disproportionate punishment for, at worst, non-criminal actions, and, at best, honest mistakes. The treatment of this highly skilled cohort raises many questions about who we are as a nation and who we accept, and who we want to keep becoming post-Brexit.

We do not think the status quo is where the conversation should end, and have given responses to Baroness Williams of Trafford’s answers given on 19 April on behalf of the Home Office:

Misrepresenting Earnings

Bns Williams of Trafford: “We do not believe that highly skilled migrants who came to the UK using the tier 1 general visa route have been incorrectly refused indefinite leave to remain. There have been many cases of applicants appearing to deliberately misrepresent their earnings to qualify for leave to remain.”

Which later changes to:

“The cases we are talking about this afternoon are of people who falsified their earnings, claiming back tax on them in some instances… It is absolutely right …that we stamp out fraud where we see it—and these cases were of fraudulently declared earnings.”

“The people we are talking about have falsified earnings in order to come to this country.”

  • There had been no investigations to establish “falsification” before the 1,697 ILR refusals, as is due process in HMRC regarding tax discrepancies suspected to be “deliberate or ‘careless” within the normal 12-month period. Around 80% of the 1,697 cases have later been found to not be ‘dishonest’ and granted some form of leave. For the remaining cases, nearly all those with and without the right to work have repaid the discrepancies with interest, satisfying HMRC. Many of the repayments occurred before the 2016 ILR applications, sometimes years before the Home Office re-opened the case (again, not normal due process). Up to “80% of remaining cases still have not had a ‘minded to refuse’ letter allowing them to explain the discrepancies. Even with evidence of accountants’ mistakes etc., it has been incredibly difficult in the remaining cases to overturn the Home Office’s initial refusal decision in court.
  • Re. the amount of money (the Home Office state 88% had over £10,000 in discrepancies), we agree that these are not necessarily small amounts. However, it still stands that no investigations were made before ILR refusals re. how/why discrepancies occurred. These cases are treated differently to 60% of self-assessment tax returns that have discrepancies (IFS 2017) and the 4.27 million people between April 2008-18 who made self-assessment tax amendments. It is largely a question of belief (without certainty) of “misrepresenting earnings” which seems to be heavily connected to certain nationalities (primarily South Asian and African nationalities). C.80% of those with discrepancies (many of them above £10k, including a case of £160k) have later been found to be ‘honest’ and granted leave. One discrepancy was as low as under £2.
  • It’s also important to note that it is incorrect to state that ‘people falsified their earnings to come to the UK’. The alleged falsification / discrepancies (see above) relate to UK self-employment tax returns that were submitted while in the UK and after having been granted a Tier 1 (general) visa and accepted that they meet the threshold for ‘highly skilled’ that the UK wants. This is a really unhelpful and dangerous narrative that plays into the idea of ‘fraudster migrants coming to the UK (to take jobs and UK tax payers’ money) from overseas.

Re. whether the discrepancies related were recent or some 10 years ago: “Most applications for settlement were made around 2016. Some of them go back some years.”

  • While the ILR applications date from 2016, 71% of remaining cases relate to the 2010/11 tax return (now 10 years ago). 37% only involve the 2010/11 tax return. Everyone has been in the UK for 10 or more years.

Racial discrimination

Bns Williams: “The noble Lord points out that a large proportion of the refusals were given to non-white people; the countries represented have populations that would normally be non-white—that is the link there … the fact that these are people of colour probably reflects the countries the applications came from.”

“We must not conflate them with the Windrush generation, who were genuinely and rightfully here and to whom we owe a debt of gratitude.”

  • From the 400+ cases we directly know about, only non-white people have been refused ILR. Remaining cases come from 6 Commonwealth countries (Pakistan, India, Nigeria, Bangladesh, Sri Lanka and Zimbabwe). From data immediately available, we know that there were similar numbers of US citizens (1,917 / 8.35% of total) to citizens from Pakistan (2,762 / 9.9% of total) and Nigeria (1,831 / 7.9% of total) granted a tier 1 (general) visa in 2010. There were also higher or similar numbers of citizens from Australia (901 / 4% of total), China (487 / 2.12% of total), Canada (303 / 1.32% of total) and Russia (391 / 1.7% of total) to citizens from Bangladesh (266 / 1.15% of total), Sri Lanka (483 / 2.1% of total) and Zimbabwe (60 / 0.26% of total) granted a T1 visa in 2010. We are investigating data from other years.
  • From legal counsel, we further understand that to access to data needed to make these determinations, the Home Office send a list of “people of concern” to HMRC who then checked for discrepancies against the ILR applications submitted from 2016 (they would need these to make the comparison. There appears to be unlawful and with no due safeguards in place through the Memorandum of understanding pointed to.
  • The Highly Skilled have also been in the UK for 10+ years lawfully and have committed no criminal acts according to immigration or criminal law. Many are equipped with skills (90% have postgraduate degrees and 25% MBAs) that are important for ‘building back better’ in the UK post-covid / post-Brexit. Many of their children have also been born and grown up in the UK but are not entitled to citizenship while their parents’ ILR is pending (like Windrush cases).

Destitution

Bns Williams: “On people facing destitution, of course people will be cared for while their applications are being considered. Of course, particularly during the Covid pandemic over the past year, it has been very important to be able to give people that bit of respite because of the difficulties that they will face, first, coming here and, secondly, going back, if their applications are refused.”

Later on:

 “I totally get the point that the noble Lord is making about some of the humanitarian considerations that we should give to people who grew up in this country, but this is a very different issue.”

  • It is positive that the Government has acknowledged the difficulties and stated the above. Big questions remain about what it will do to support all those who are experiencing destitution (48%) and those without the right to work or NRPF etc. (55%). Despite these statements, no relief has been granted. It costs the Gov’t and local authorities a lot to support families in destitution (and even more to deport them).
  • Unsure how this is a different issue when ‘misrepresentation’ has not been established and it is agreed that those with pending ILR should not be destitute or unable to work.

At MRN, we will keep widening the audiences aware of these patterns and will seek to ensure not only that the Highly Skilled group have more security now and going forward, but that the process used to deny them ILR is not a new route which the government can begin to use towards any migrant community. Addressing the shady data-sharing practices here will be paramount.

We will continue to seek:

  • Emergency relief and the right to work for those Highly Skilled facing or experiencing destitution. We believe this to be a highly disproportionate punishment for actions not proven to be ‘deceptive’.
  • That non-criminal tax discrepancies are considered ‘in the round’ in immigration cases and as part of a ‘balancing exercise’ that can be evidenced by the Home Office.
  • Clarity on the data-sharing processes and profiling of the non-white highly skilled migrants used to refuse ILR so as to ensure this does not happen again.
  • Security for the highly skilled and any others with some form of leave – that ‘tax discrepancies’ cannot continue to be held against them in future visa or settlement applications.
  • Investigation into and/or compensation for all those (c. 80% of the highly skilled group) found to have made ‘honest mistakes’.

We would be grateful for your thoughts and support – please contact Katharine:  [email protected] / +44 (0) 7792 149064