The Court of Appeal in a judgement has severely criticised Home Office’s use of a terrorism related immigration law as “legally flawed”, asking for the ruling to be changed.
Asian Voice wrote a number of campaigning articles, interviewed victims and repeatedly highlighted the Home Office’s misuse of paragraph 322(5), refusing applications of hundreds of people – in many cases because they amended their tax records, tagging them as ‘terrorists’.
The department has reportedly tried to refuse at least 300 highly-skilled migrants, mostly Indians and Pakistanis, with a further 87 leaving the country. Around 400 people have been potentially affected between January 2015-May 2018. Many have termed this as the ‘Asian Windrush scandal’.
The Court of Appeal judgement on Tuesday (16 April 2019) has examined four applicants, three of whom are Indian and one Pakistani, who had been refused their Indefinite Leave to Remain (ILR) in the UK under the highly-skilled category.
Their cases were clubbed together for the hearing at the Royal Courts of Justice in London, which ruled against UK Home Secretary Sajid Javid and found his approach as “legally flawed”.
That led to a scathing 60-page judgment criticising the Home Office. One of these cases have been reportedly 'quashed' while the other three will be allowed to appeal, including one in which the court said there was “at least arguably, a distinct unlawfulness, in that the secretary of state failed to make an explicit finding of dishonesty.”
The judgment handed down by Lord Justice Underhill, Lord Justice Hickinbottom and Lord Justice Singh concluded, "The formal result is that each of these four appeals will be allowed...
"The approach taken by the Secretary of State in deciding to refuse the applications for leave to remain in each of these cases on paragraph 322(5) grounds which we take to have been his general approach in all earnings discrepancy cases was legally flawed.”
The judges concluded that the Home Office proceeded directly from finding discrepancies in filed taxes by applicants that were already resolved by the HMRC saying that the applicants were dishonest, without giving them an opportunity to "proffer an innocent explanation". They also lay out a number of procedural directions, which are likely to affect future similar cases.
Ashis Balajigari from Hyderabad said, "It is a big relief but it has been a very long and difficult journey.” His application for ILR must now be reassessed after the court found that he had not been given "an opportunity to make representations" in response to an allegation that he had "acted dishonestly" over what he had submitted was a rectified error.
Somnath Majumder, was also found to have been "plainly flawed" and a "clear breach of the duty of procedural fairness by the Secretary of the State.” Majumder, who is believed to have since returned to India, has had the refusal of his settlement right in the UK quashed.
Indian-origin Avais Kawos, his wife and children are also be among those whose case must be reconsidered, alongside the case of Pakistani national Amor Albert.
A Home Office spokesperson said that the department would consider the judgment and its response to it carefully, "The Court agreed that the use of paragraph 322(5) is appropriate in these types of cases and that we are right to expect a full and convincing explanation from people when there are discrepancies in their tax records and immigration applications.”
There are more than 70 other 322(5) appeals or applications for permission to appeal pending before the court and an unknown number of challenges pending in the first-tier tribunal or upper tribunal.
Many of these affected people have lived here for more than a decade and have UK born children. Some were given only 14 days to leave, without any permission to apply for any other category visa. Those who stayed on and appealed, face severe restrictions on their right to work, have a bank account, driving licence or access NHS treatment that is free.
