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Comment: migrants need the right to work while fighting immigration cases
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Comment: migrants need the right to work while fighting immigration cases

I am quoted in a recent Guardian story about the notorious, if niche, paragraph 322(5) of the Immigration Rules. This is the rule being used to refuse leave to remain to migrants because of alleged discrepancies between their tax returns to HMRC and the income declared to the Home Office for visa purposes. Nath has done a detailed explainer. As she points out, these differences can have an innocent explanation.

Paragraph 322(5) itself reads:

It is undesirable to let an applicant stay because of their character, behaviour or associations (including convictions which do not fall within paragraph 322(1C)), or because they are a threat to national security.

And Home Office guidance explicitly says:

The main types of cases you need to consider for refusal under paragraph 322(5) or referral to other teams are those that involve criminality, a threat to national security, war crimes or travel bans.

An initial Home Office probe into its paragraph 322(5) refusals showed that in most cases, the difference in earnings reported to the Home Office vs HMRC was over £10,000. Essentially, the Home Office says that some migrants were:

  1. Falsely claiming inflated earnings in order to qualify for a visa, or
  2. Falsely claiming low earnings in order to minimise tax liability.

This may prove to be more akin to the ETS testing issue than the Windrush scandal, in that there is a legitimate issue over inflated earnings in at least some cases. The question is whether this is the right — or indeed lawful — way for the Home Office to go about tackling it.

That question has given rise to a flurry of litigation. Paul Turner, who has been involved with some of it, says that tribunal judges are crying out for guidance on how to handle appeals in such cases and has managed to get it from the Upper Tribunal in one decision, although once again the committee that decides such things seems to holding out against reporting it for whatever reason. The matter will, I understand, come to a head in January in several Court of Appeal test cases.

In meantime, though, those challenging refusals risk breaking the law if they carry on working while their case is in progress. That is because of the gutting of formal appeal rights by the noxious Immigration Act 2014, which left judicial review as the only means of challenge in many paragraph 322(5) cases.

Which brings us back to the Guardian’s story, which is about an interim relief decision in the Court of Appeal on 21 August. Lord Justices Irwin and Holroyde have decided that a seriously ill Nigerian woman affected by paragraph 322(5) can return to work and access the NHS while she challenges the refusal. This is a very important and significant ruling which opens the door to other economic migrants suffering serious health issues to seek the right to work while fighting immigration cases.

The precedent may well prove to be wider.

The frankly cruel idea that migrants challenging a government decision should have to do so from a position of illegality and impoverishment is comparatively recent. Successive governments had recognised the need to protect the position of migrants in such circumstances.

The sensible tradition goes back to 1976. In Suthendran v Immigration Appeal Tribunal [1976] UKHL 8, a majority of the House of Lords unhelpfully decided that if an application to vary leave was refused after the leave had expired, the applicant would have no right of appeal at all. You had to have time left on your existing visa in order to challenge the refusal of an extension, in other words. In response, the government introduced the Immigration (Variation of Leave) Order 1976, or VOLO, which extended current leave until 28 days after the decision on a variation application. Under the Blair government, VOLO was replaced by the insertion of section 3C into the Immigration Act 1971, the effect of which is substantially the same: migrants retained their lawful status in the UK while challenging an immigration decision, including the right to work and access essential services.

This protection has worn thin since the 2014 Act, however. It removed formal appeal rights for thousands of mainly economic migrants, leaving judicial review as the only means of challenge. And since Section 3C only applies to appeals, not judicial reviews, that leaves many of those trying to challenge a refusal without the right to work and exposed to the rest of the hostile environment. It is all but impossible to bring a case in such circumstances.

Yesterday’s interim decision offers a glimmer of hope to people with serious health problems as a result of this appalling situation. But in an era where 50% of immigration appeals succeed, it is imperative that these protections be restored across the board so that valid challenges to immigration decisions can be brought.

 

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