New Home Secretary - end of the “hostile environment”? - and alleged tax deception

20 May 2018
Following the resignation of Ms Amber Rudd a new Home Secretary has been appointed: he is Mr Sajid Javid MP, the former Communities Secretary. Born in the UK of Pakistani parents, he is the first ethnic minority person to hold the Home Secretary’s office.

Does this mean that he will be more sympathetic to migrants than his immediate predecessors? Well, you might think so. As the Times newspaper headline puts it: Javid to end hostile era for illegal immigrants. It makes a good headline, but what can it really mean? Can all illegal immigrants now just stay here and be happy?

No, definitely not. Appearing in the House of Commons for the first time as Home Secretary, Mr Javid tried to disown the expression “hostile environment” and replace it with the semantically more pleasant “compliant environment”. (We are afraid that he is too late: this expression is already in Home Office usage.) And he talked about a “fair and humane” immigration policy.

But he also promised to clamp down “decisively” on illegal immigration and he gave no indication at all that he was thinking about abolishing the Government’s net migration target.

The new approach looks rather more like a change of form rather than a change of substance, but perhaps it is too early to start judging him: as he pointed out to the House at the time, he had only been in the job for seven hours.

A lot of his speech dealt with the “Windrush” affair (whereby Commonwealth immigrants who several decades ago acquired immigration status have suddenly found that they do not have the paperwork to prove it) but, coincidentally, another tricky immigration issue has come up in the media which might seem to exemplify the full horrors of the “hostile environment” which Mr Javid criticises.

This concerns paragraph 322(5) of the immigration rules, which says that Home Office decision-makers should not grant further immigration leave to remain to migrants where there are deemed to be issues about:

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct … character or associations or the fact that he represents a threat to national security”

It is the “conduct” “character” and “associations” part of the rule that has most come to the fore, and particularly in connection with the HMRC and tax. A lot of migrants under the now-defunct Tier 1 General visa route have applied for settlement - ie the right to live in the UK without time limit - but been refused, on the basis of their previous tax history.

Under the Tier 1 General scheme applicants had to show a certain level of earnings, either in employment or self-employment. Self-employment earnings are evidenced by the annual tax return that the applicant submits to the HMRC: ie the applicant declares their earnings to the HMRC and the HMRC does the calculation and then informs the applicant how much tax is payable.

In a lot of cases the Home Office have alleged that the information previously submitted to them about self-employed earnings was dishonest. In some cases it is alleged that applicants have submitted inflated figures in previous applications in order to score enough points under the Tier 1 General points-scoring system. In some cases the Home Office has said that the earnings declared to them in previous applications were different to the earnings declared to the HMRC. And in some cases - and here the waters may become very muddied - applicants have submitted a tax return and then subsequently amended it with the HMRC. This is something that is quite legal and for which there may be good reasons - for example to correct a mistake - but the Home Office have on occasion identified a dishonest motive.

A Home Office spokesperson said it refuses applications “in these circumstances only where the evidence shows applicants have deliberately provided false information to the government” (our emphasis added).

But Aditi Bhardwaj of “Highly Skilled Migrants” (a support group that has been set up to help those who have fallen foul of this rule) says “Tax error rectification is not illegal or unlawful anywhere in the world, and not even in the UK Financial Act 2007”.

And migrants whose settlement applications are refused under this rule find themselves in a difficult position. If they cannot get the finding of deception overturned in the tribunals/courts it remains on their record and, at least equally seriously, they may have to leave the UK.

Such a finding of deception by the Home Office is a very different thing from a criminal prosecution for, for example, false accounting. A criminal prosecution has the built-in safeguards of the principle of only finding guilt “beyond reasonable doubt”. But a finding of deception on the basis of what the evidence “shows” by a Home Office caseworker has no such features and is a good deal more arbitrary.

The Home Office have now announced that they are going to be reviewing this subject, and it will be interesting to see what the new Home Secretary has to say about it.

And if you are affected by issues of this kind it is a good idea to consult a competent lawyer.


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