Today, the Court of Appeal has allowed the appeals against Home Office’s refusal of leave to remain in the cases of earning discrepancies between earnings declared in applications and those declared in HMRC tax returns. In all the cases, the Home Office refused the applications on paragraph 322(5) of the Immigration Rules.
Paragraph 322(5) states as follows:
(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security
The reasoning can be summarised as follows:
- The approach taken by the Secretary of State in deciding to refuse the applications for leave to remain on paragraph 322(5) grounds was “legally flawed” as he proceeded to refusing the application from finding that the discrepancies amounted to dishonesty and rendered the presence of the applicant in the UK undesirable without giving the applicants an opportunity to offer an innocent explanation.
- The defects need not lead to a paragraph 322(5) refusal being quashed if the result would have been the same even if the applicants had been given an opportunity to explain the discrepancies. The Court of Appeal have remitted three of the cases to the Upper Tribunal to deal with the issue of the test of immateriality.
Please click on the following link to read the full judgment of Balajigari & Others v SSHD  EWCA Civ 673:
If you have been affected by this issue or any other problem as a result of your immigration status in the UK please feel free to contact us on 020 8503 7228 to book a consultation.