Immigration Rules: Paragraph 322(5)

– in Westminster Hall at 4:30 pm on 13th June 2018.

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Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden 4:30 pm, 13th June 2018

Before I call Alison Thewliss, let me say that I think it has become obvious to everybody that there might be quite a strict time limit on speeches.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

I beg to move,

That this House
has considered paragraph 322(5) of the Immigration Rules.

To assist those who wish to intervene or speak later, I will speak about the background to this issue and about recent case studies from my constituency, and then I have some questions for the Minister. That may help them tailor their remarks.

I pay tribute to the members of the Highly Skilled Migrants campaign group, who have now held four large demonstrations outside this Parliament and have been extremely active on social media. They have self-organised and worked hard to give this issue the attention it deserves. I also want to thank Amelia Hill at The Guardian and Kirsteen Paterson at The National, who have given this issue first-rate coverage.

For more than a year at least, the Home Office has been issuing highly skilled migrants, many of whom entered the UK via the tier 1 general route, with notices detailing that their leave to remain application has been refused. It seems that many of those decisions have been predicated purely on the applicants’ alleged poor character in the wake of amendments to their tax returns and income statements. In making those decisions, the Home Office has deemed highly skilled migrants a threat to national security under paragraph 322(5) of the immigration rules, which refers to

“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”.

That is highly inappropriate.

It is important to note that paragraph 322(5) is discretionary: it should be for the Home Office to determine whether to use it, based on the merits of each individual application. It also places the burden of proof on applicants, rather than on the Home Office. From my constituency casework, and from listening to highly skilled migrants who have contacted me, I have seen that that is regimented, calculated decision making. Individuals’ applications are refused whenever they supply details of different incomes, or seek to amend information in a tax return, often on the instruction of an accountant.

None of the migrants to whom I have spoken has any issues that should cause them to be considered a threat to national security, but the very invoking and recording of this paragraph could compromise their future work and travel. After all, what country would wish to accept somebody who had been refused by the UK on such grounds?

When an application is refused, it is incumbent on the applicant to challenge the decision through the courts. In many cases, the judge has overruled the Home Office’s decision, finding it entirely disproportionate. A number of refusals appear to have been predicated on nothing more than the individual making an honest mistake. As far as Her Majesty’s Revenue and Customs is concerned, when the correction is made, the case is closed. Some of the sums involved in those corrections are only a few pounds—sums of £1.20 and £1.60 have been reported—and many were from many years ago. For one of my constituents, it was from 2010. Many people have asked me, “If there was a problem back then, why didn’t it affect my status at that point?”

I raised this matter with the Financial Secretary to the Treasury at Treasury questions in May, and he confirmed that

“people should clearly continue to make appropriate changes to their tax returns. I reassure her and the House that Treasury Ministers and HMRC officials are working closely across Government—particularly with the Home Office—on the issues that she raised in order to ensure that we get these matters right.”—[Official Report, 22 May 2018;
Vol. 641, c. 710.]

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I congratulate the hon. Lady on bringing this matter to Westminster Hall for consideration. Does she agree that some of those affected are doctors—highly skilled, highly valued members of our medical society—in the Ulster Hospital in Northern Ireland and in hospitals throughout the United Kingdom of Great Britain and Northern Ireland? We must ensure that those who are living, working and making a difference in our communities, and are pouring into them, are able to continue to do that without the undue stress of overly onerous immigration procedures, caused by simple non-criminal mistakes on tax returns. Perhaps some in this House have made such mistakes themselves.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

The hon. Gentleman is absolutely correct. Many of the people I have spoken to are in shortage occupations and are much valued. They are the very people we wish to attract to this country to work.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

Several highly skilled migrants in my constituency of Slough have had their Home Office applications refused due to the heavy-handed application of paragraph 322(5). Many who contacted me have lived in the UK for more than a decade and have British-born children, and are now in a state of despair. One told me:

“I have given my best years, and contributed to the growth of Britain. My private, family and professional life are established here. I am a law-abiding citizen and have never faced criminal charges of any kind.”

Does the hon. Lady agree that it is very difficult to respond to somebody in such circumstances, and that the Tory Government’s hostile environment must end?

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

I agree. That chimes with many of the stories I have heard. We must think particularly about the impact on children, who do not know why their parents are not allowed to work all of a sudden. Some people have not been able to access medical care for their children, which is deeply worrying.

Photo of Paul Masterton Paul Masterton Conservative, East Renfrewshire

The hon. Lady is aware of my constituent, to whom this rule was applied. In many ways, the biggest impact was on his wife, because NHS Scotland removed her access to medical services, even though she was eight months pregnant. Although NHS Scotland and Home Office staff have very difficult jobs in highly stressful situations, mistakes can have serious consequences that are hard to unpick.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

I thank the hon. Gentleman for that intervention. I had cause to meet his constituent, and I was so concerned about his situation that I wrote to the Cabinet Secretary for Health and Sport in Scotland to ensure that all GP practices in Scotland understand that they cannot just take people off their lists in such circumstances. Certainly, women who are eight months pregnant need medical care and should not lose it due to Home Office errors.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

If the right hon. Gentleman lets me make a wee bit of progress, I will appreciate it.

It seems extremely odd to me that HMRC could be satisfied, but that the Home Office should treat the same behaviour as akin to deception at best and terrorism at worst. If I, the Minister or anybody in the Chamber made a legitimate, in-time correction to our tax return our lives would not be turned upside down—as Jim Shannon said—and we would not have the threat of removal hanging over our heads. It is said that half a million British citizens amend their tax records every year within the one-year grace period that HMRC allows. Others, of course, do it outside that period. None of those people is treated as a criminal under paragraph 322(5). The only reason highly skilled migrants are treated in that way is their nationality. As far as I am concerned, that is discrimination under article 8.

In one case that was reported to the press, an individual who had come to the UK via the tier 1 route went through this process. He presented a letter from his accountant detailing that the error was the accountant’s fault, and a letter from HMRC explaining that it was satisfied that the individual was not acting dishonestly, but the Home Office refused to exercise any discretion or change its original decision. In another case, after an individual’s tax information was scrutinised by three different appeal courts, no evidence of irregularities was found. The individual’s lawyer noted that the Home Office had made a basic accounting error by confusing his gross income with his net income.

Photo of Edward Davey Edward Davey Liberal Democrat Spokesperson (Home Affairs)

The hon. Lady is making an excellent speech. That is one of the key points: Home Office officials do not know anything about tax, and they are making decisions about people’s lives based on their tax information. This responsibility has to be taken away from them today.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

I absolutely agree. Paul Garlick QC, who specialises in extradition and human rights law, said:

“The system is crippled by not having enough people to do the work while those who are there don’t understand the basics”, as the right hon. Gentleman says. Paul Garlick continued:

“They genuinely have no idea of the difference between tax years and accounting years, or what is a legitimately deductible expense. My feeling is that since Theresa May’s announcement of a ‘hostile environment’ for immigrants, caseworkers have been told to look for discrepancies that could form the basis of an accusation that the applicant is lying, because that’s the quickest way to dispose of an application”.

Photo of Teresa Pearce Teresa Pearce Labour, Erith and Thamesmead

The hon. Lady is making an excellent case. HMRC has wide-ranging powers and can prosecute when there is any whiff of criminality, but it has not done that in any of these cases because these are mistakes or small errors of the kind that many of us have made.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

The hon. Lady is absolutely right. If there were a case to answer, HMRC would have something to say about it.

This issues affects not just those individuals. Last week, I spoke to Saleem Dadabhoy, who employs 20 people in his business. If his situation is not resolved, all those people will be made unemployed and a British company worth £1.5 million will be wound up. That is economic madness, and the Home Office should carefully consider the impact of its target-driven culture on the economy, especially in these uncertain times.

I have spoken to many highly skilled migrants, all of whom have been distressed about the way they have been treated, having given the best years of their lives to the UK and made their home here. We should thank that group, not put them out.

My constituent, Omer Khitab, travelled to the UK on a study visa in 2006 and completed a master’s course in international marketing at the University of the West of Scotland in 2009. He then worked in journalism and marketing before starting his own business. His accountants completed his tax return on his behalf, and the errors they made inadvertently were rectified by my constituent a few months later. Omer has written documents from his accountants to prove that, and accepting full responsibility for the errors.

Omer also suffers from depression and anxiety, a factor that his GP and his psychiatrist have acknowledged would, without doubt, contribute to his inability to spot an administrative error in his tax return. His stress is only worsened by the ongoing nature of his case. He said:

“I feel this is my home, I thought my children will grow up here, I will get married and die here. That letter saying I don’t belong to this place, I am a threat to national security, it’s very hard to swallow”.

It is hard for all of us to swallow.

Photo of Rupa Huq Rupa Huq Labour, Ealing Central and Acton

Does the hon. Lady agree that, given the association of that rule with terrorism provisions, the implications are wide ranging and can leave a black mark on people’s lives forever? It is difficult for them ever to get a visa or to work anywhere worldwide after all that.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

Absolutely. That is why there needs to be a proper and thorough inquiry into the use of the provision. If Home Office staff are being advised to use it as a means of refusing people, they are clearly not looking at the full implications or the possible long-term impact.

My constituent Omer was refused leave to remain on the basis that he had deceived the Department, which goes entirely against all the evidence that he provided. Furthermore, HMRC has written to Omer to say that its staff are satisfied that he has acted honestly and not tried to deceive anyone.

Mustafa Ali Baig also travelled to the UK to study in 2006. He obtained master’s degree in international marketing from the University of the West of Scotland in 2009. Mustafa and Omer have a lovely picture of the two of them graduated—two young boys with all their lives ahead of them, and Omer certainly is almost unrecognisable from that picture, given the stress he has been under lately.

Before coming to the UK, Mustafa obtained a bachelor of law degree at the University of the Punjab, and he has master’s degree in political science. He has worked in business development, marketing and public relations, and has undertaken voluntary positions for civil rights and social action groups. He also volunteers to run a current affairs radio show. He is very much part of the Glasgow community, and he has gone above and beyond to advocate for his friends.

As far as I am aware, there is no question as to Mustafa’s integrity, but, due to that immigration rule, as Dr Huq has just pointed out, he has been told that he is a questionable character and a threat to national security—as a result of correcting a small error on his tax return in 2010. That is no basis on which to remove someone in such a way. His case goes to the immigration tribunal on 20 June—that proves that decisions on such cases are still being made, despite what the Home Secretary has said.

Mr Sanjeev Pande travelled to the UK in 2005 on a student visa and graduated from Glasgow University in 2008. He started his own IT business and was also employed as an IT consultant and project manager—a lucrative career. Most recently, he had been leading an IT project for a bank in Scotland, before his right to work was removed by the Home Office.

Mr Pande applied for ILR—indefinite leave to remain—under long-term residency rules in 2017. He had been in the UK for 12 years at that point. He hired an accountant, but his tax return submissions were subsequently questioned by the Home Office. As a result, Mr Pande made attempts to change his accountant and to rectify the errors, but the Home Office has continued to pursue him on the basis that officials believe him to be dishonest.

Most distressingly, Mr Pande was detained at Heathrow airport on his return from a family holiday in 2017. His passport and BRPbiometric residence permit—were confiscated by immigration officers, removing his right to work. That has a huge impact on the family finances, because he has a mortgage and other commitments. Judges found in his favour at both first-tier and upper tribunals. Indeed, paperwork from the first-tier tribunal states that in some detail—it is a long quote but it is worth putting it on the record—with the judge saying:

“The refusal letter is I think confusing in itself in relation to the Appellant’s income, but I have to say that I found both the Appellant and his wife to be credible witnesses. I do not think that they have acted dishonestly. The Appellant relied on the advice of an accountant. He was entitled to rely on that advice and whilst he is under a duty to check information, it is entirely unfair to expect him to have a level of accountancy and tax knowledge accorded to professionals in this field... He was clear that he sought clarification from the accountant but eventually, when he was unable to get satisfactory answers, he changed accountants… It also appears to me that the Appellant was unfairly treated by the Home Office. His passport was retained during the first appeal proceedings. As a result he was unable to find employment since employers refused to employ him without the benefits of his passport. He was, I think, therefore prejudiced and I consider that this matter should be taken into account in the question of proportionality.

Taking all of the above into account, therefore, I do not consider that the Appellant has acted dishonestly. He may have been misguided, but that is a different matter and I consider that it would be disproportionate in the circumstances to expect the Appellant and his wife to leave the UK, particularly as they own property in the UK, they pay tax in the UK and they have spent a considerable number of years here.”

The last case I want to highlight is that of a female constituent—I do not want to name her, because her children are at school in my constituency. She travelled to the UK from Nigeria and has been refused leave to remain in similar circumstances to the others, under paragraph 322(5) of the immigration rules. She legitimately made changes to her tax return, but the Home Office is again putting forward the argument that she has tried to deceive the Department and it has refused her an administrative review.

My constituent is a qualified accountant, and has been unable to continue seeking work in her field as a result of the status imposed on her by the Home Office. She has been made destitute as she has no recourse to public funds—many on tier 1 have no such recourse.

My constituents has been to my office to seek help in getting school uniforms for her children. Unable to work, she is struggling to keep her family afloat, and there is a real risk that she and her children will be made homeless as a result of the Home Office decision. Her landlord, the Wheatley Group, confirmed only yesterday that, due to the support of her church paying her rent, it was not to proceed with legal action to evict her at this point, but that option remains open. I am extremely grateful to the Wheatley Group for the discretion it has shown, but the situation is not sustainable—my constituent needs to get back to work.

The issue has been considered by the Select Committee on Home Affairs, and the Home Secretary corresponded with its Chair, committing to put all 322(5) applications on hold and to carry out a review by the end of May. As far as I can ascertain, that review has not yet been published and no further detail on it is available, although as I said in connection with my constituent Mustafa, 322(5) decisions are still being made.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I congratulate the hon. Lady on securing this debate, and I apologise for missing the first few minutes of it due to business in the main Chamber. She is absolutely right that the Home Affairs Committee, on which I sit, is still not clear where the Government are going on the matter. Does she agree that this scandal shows the wider systemic problem in the Department, as we have seen through Windrush, this immigration rule and a series of decisions being made wrongly when there is a hostile environment, a lack of discretion, cuts in staff and cuts in ability, as well as Ministers who, quite frankly, do not have a grip on what is going on in their Department? The net result is damage to individuals and their families.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

I absolutely agree. It is worrying that even the Home Affairs Committee cannot get answers on certain things. This rule is of huge concern, and decisions under it are clearly still being made, as I heard from people I spoke to at the Highly Skilled Migrants demo last week. They are clear upon that.

Photo of Anneliese Dodds Anneliese Dodds Shadow Minister (Treasury)

The hon. Lady is being generous in giving way, and she is making a very powerful speech. Does she not agree that the Home Office was made aware of such issues in letters from me and others present in this Chamber back in mid-March, but no action was taken? Having such a delay in action is simply not good enough when that is affecting people’s lives in such a terrible manner.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Cities), Shadow SNP Spokesperson (Treasury)

Yes, I absolutely agree with the hon. Lady. For some months, I have been trying to get answers for the constituents who have been to me. The woman I mentioned came to see me in January, and she still has no answers in her case. When constituents come to us, it is not always evident that they are affected under those particular rules, and we often have to see the refusal letter to understand exactly why the refusal has been made, but a growing number of people have been getting in touch with me about finding themselves in this circumstance. Those who are not my constituents I have encouraged to get in touch with their own MP, as I am sure they have done going by the number of people in the Chamber today.

To add insult to injury, The Times reported this morning that a new visa route for migrants who want to start businesses in the UK

“is to be expanded to include non-graduates under efforts to increase technological innovation.”

That is rank hypocrisy. How can the UK Government reasonably expect to attract new migrants to the country when they treat the highly skilled population who are already here, and have been for years, with such utter disrespect?

I have a number of questions, which I hope the Minister will assist with. When will the review that I mentioned be published? How many cases are in process, and how many are awaiting judicial review? I have asked the Home Office how many people have been refused under the provision, and I understand that Channel 4 News also put in a freedom of information request to the Department without getting an adequate response.

Was an instruction issued to start refusing cases under the rule? If so, by whom and when? On 2 May, The Daily Telegraph reported that Home Office caseworkers had discussed using previous amendments to tax returns to cast doubt on current tax returns. How widespread is that practice? Will the Minister allow people caught up in all this the right to work, the right to access NHS services and the right to rent during their appeals? They often lose those rights as soon as the administrative review is refused—that is the first line of appeal after the initial refusal—and, as was mentioned by Paul Masterton, that can have a serious impact, in particular on women who are pregnant.

Will the Minister tell me whether compensation is to be offered to those wrongly caught up in this mess, just like Windrush? People affected can be out tens of thousands of pounds, particularly if they cannot get legal aid for their cases, because they have not been able to work and have gone into debt and arrears.

Lastly, what does the Minister have to say about the impact of this policy on individuals? I have been told by many about the strain on their mental health; relationships with their family here and with relatives abroad, who they are not able to visit; the stress of having to report to the Home Office regularly, sometimes on a fortnightly basis; and the loss of employment. Does the policy have a wider economic impact?

The Home Office’s policy of deliberately targeting these highly-skilled migrants is yet another example of this cruel Tory Government’s hostile environment policy in action. The group being targeted here are highly skilled: they are doctors, accountants, IT professionals, teachers and academics, to name only a few. They have put down roots and contributed greatly to their communities.

The UK Government continue to talk about attracting talent, yet their behaviour towards this group shows that they clearly are not interested in retaining much of the highly skilled population who are already here—already well integrated and contributing hugely. I urge the Minister to take swift action now to support highly skilled migrants who have done us the honour of choosing to live here.

Several hon. Members:

rose—

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Order. As all hon. Members will be aware, this is a very popular debate—people have done very well in getting their MPs here. Eight people wish to speak in the 20 minutes remaining before I call the Front Bench spokespersons, so if we are to get everyone in, I am afraid Members must not speak for longer than two and a half minutes. I call Douglas Ross.

Photo of Douglas Ross Douglas Ross Conservative, Moray 4:51 pm, 13th June 2018

I will scrap most of my speech in front of me, but I thank you for calling me, Ms McDonagh; it is a pleasure to serve under your chairmanship. I genuinely congratulate Alison Thewliss on securing this debate. It is important that we discuss this subject. I am extremely grateful, as a member of the Home Affairs Committee, to have had the privilege of meeting campaigners and some of the affected people earlier today. That allowed the Committee members to hear some of the real hardships faced by a number of people because the immigration rules, which are there for a reason, are perhaps not being implemented in as useful and credible a way as possible.

We heard this morning that no fewer than 1,000 highly skilled immigrants face expulsion from this country under this paragraph. That is not right. The hon. Member for Glasgow Central mentioned the two individuals who owed HMRC £1.20 and £1.60; we heard that they were brothers and that that was their only offence against HMRC, yet the Home Office is using this rule potentially to remove them from this country. It seems that either a simple mistake or no mistake at all leads to law-abiding immigrants’ applications being refused out of hand. That means that no common sense is being used.

I was going to read from the letter to the Home Affairs Committee from the Home Secretary, but the hon. Lady did that. However, I urge the Minister to respond to this point: the Home Secretary said in the letter that he or the Immigration Minister would report back to the Home Affairs Committee by the end of May. Today is 13 June. I checked with the Clerk before this debate; despite chasing up the Home Office’s parliamentary officials this afternoon, we as a Committee still have no knowledge of the Home Secretary or the Immigration Minister’s response. We really need that as quickly as possible.

I asked our guests at the Committee this morning, because I did not want to put words into their mouths, whether it is the policy that is wrong or the implementation. I believe that they agreed that the policy is right—we are right to have these anti-terror policies—but the way it is implemented is wrong. I hope that the Immigration Minister will go from this debate and give case workers more clarification on how to use this policy the way it is intended, not to inflict suffering on people who should not be affected by it.

Photo of Lyn Brown Lyn Brown Shadow Minister (Treasury) 4:53 pm, 13th June 2018

I want to tell hon. Members about two constituents. Muhammad has lived in and contributed to the UK for 11 years. He has a master’s in architecture from Oxford Brookes. His wife is pregnant; he has a career, a home, a mortgage and a real life in the UK. The Home Office refused him indefinite leave on the basis of a minor tax error. The error was not his. Muhammad is dyslexic and does not do his own tax returns—they were submitted by a professional accountant, who made a mistake and issued an apology. Muhammad immediately paid every extra penny owed once the mistake was discovered.

Last year, Muhammad’s grandmother died. In April, his only brother died, too. He could not go to the funerals because he would not have been allowed back in the country afterwards. The baby is expected in September; he has been invoiced by the NHS for £9,000. If he does not pay that £9,000, his wife will come off the GP’s list. Muhammad’s case is not singular—far from it.

Sadeque is a senior lecturer at a university in the UK. Before that, he was at the University of Derby. He has lived and worked in the UK for seven years. Sadeque applied for indefinite leave in 2016, which was refused by the Home Office because in 2011 he made and accepted a minor error on his tax return. He repaid it in the same year. It is hardly a mark of bad character. He has been suspended from his job and soon will be forced to withdraw from his part-time master’s at Oxford University. He volunteers with Amnesty International, Save the Children and UNICEF and promotes IT skills in the Bangladeshi community. He was graduate of the year at the University of Bedfordshire in 2011. In 2012 and 2013, he was a finalist of the British Computer Society, of which he is now a fellow. In fact, he is also a fellow of the Royal Society of Arts.

Sadeque’s wife and daughter have already left the UK. His second daughter was born in Bangladesh but Sadeque has never met her. Why? Because he cannot go there; if he did, he would not be allowed to return. In Bangladesh, Sadeque was the dean of a university faculty. So why will he not just leave, when he is being so badly and disgustingly treated by our Government? That is basically what he plans to do. He has been worn down and is going, despite the pending judicial review.

It is hard to look at cases such as those of Muhammad, Sadeque and Windrush and not conclude that this Government are chasing an arbitrary immigration target, regardless of the needs of our economy—or, indeed, the NHS or any sense of decency we might still have left as a country. Frankly, the Government have to look at the reputational damage caused by this issue.

Photo of Jess Phillips Jess Phillips Labour, Birmingham, Yardley 4:56 pm, 13th June 2018

Like all hon. Members, I have constituency cases in this matter. My constituent Inam Raziq has been fighting his case and it seems to have taken many years off his life, but also £80,000 of his money. He is among the people who helped to organise the hundreds of case studies spoken about today at the Home Affairs Committee.

I sent 300 case studies to the Committee and to the Home Office in November last year. In the seven months since I did that, the Home Office has failed to do anything about the issue. Let us be honest: it is just another issue of low-hanging fruit. It is the Government saying, in a target-driven culture, “Who are the people we can get rid of quickest?” I wrote to Ministers about this issue in November, telling them of all the hundreds of case studies, including the specific case of my constituent Inam. Still, when questioned about it, the Home Office says, “Oh, we didn’t know about it.” I do not write the most amazing emails, but I told you—not you, Ms McDonagh; there is no doubt that you would have listened.

I wonder if the Minister will tell me whether she feels that these were good and honest mistakes. In here, we are allowed to make good and honest mistakes. The Health Secretary made a good and honest mistake when he forgot that he owned some luxury flats. I am sure that colleagues will agree that we can all forget the owning of luxury flats—I am sure I have forgotten many. He forgot to declare them to this place and to—I cannot remember where it was—[Interruption.] Companies House, that is right. That was considered an honest mistake. Inam Raziq is an honest man. I will leave the judgment of the Health Secretary for everyone else here.

Photo of Faisal Rashid Faisal Rashid Labour, Warrington South 4:59 pm, 13th June 2018

It is estimated that thousands of migrants who have been living and working in the UK for many years are wrongfully facing deportation because of minor tax discrepancies or rectifications. The immigration rules we are discussing today under paragraph 322(5) are extremely vague. Fortunately, the Home Office issued guidance on when to use that sub-paragraph to deny leave to remain. It states:

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

Let us be clear: we are all here because the people being denied leave to remain under that paragraph are none of the above. They are doctors, lawyers, engineers, IT technicians and other highly skilled migrants who make a valuable contribution to our country.

One of them is a constituent of mine who has lived in this country for almost 10 years. He works in the IT sector, he has one son, who was born in this country, and his wife is expecting their second child. He is being punished because he made a minor tax rectification, which HMRC accepted, prior to applying for indefinite leave to remain. He even notified UK Visas and Immigration of the change. Because of that minor change, his application has been on hold for more than two years. He is anxious and concerned that he, like many others, will be forced to leave the country that has been home for him and his young family for the past 10 years.

My constituent works hard, pays his taxes, provides for his family and contributes to his community. His future, and the future of hundreds of others in his position, should not be left in limbo because he did the right thing and corrected his tax returns. He and his family are living with stress, anxiety and uncertainty, which is not acceptable. It does not take a review to recognise that something is wrong here. Ordinary people who contribute to our economy are being denied leave to remain because of routine changes or simple mistakes. Are these wrongful deportations a result of pressure from the Government to meet deportation targets, or is the Government’s typical defence—that this is merely a result of their reckless incompetence—to be believed?

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society) 5:01 pm, 13th June 2018

I congratulate Alison Thewliss on securing this important debate.

I will focus on one constituent, because the individual cases really highlight the damage the Government are doing. I have a woman constituent—she prefers to remain anonymous—who came here from Zimbabwe in 2007 after winning a British Council scholarship to Birkbeck College in London. She has been a model citizen ever since. She works very hard—she has never had fewer than two jobs at a time—and she brings up her three children without any recourse to public funds. She has held management jobs, and she is the director of a company she set up in 2010. She has been a governor and a volunteer at a school in her community. She has run three marathons for charity, she volunteers at Crisis at Christmas and she helped to set up an arthritis charity.

In 2010, this woman suffered the horrific experience of being raped. Her attacker was eventually sentenced to 15 years in prison. In the aftermath of that trauma, she made a mistake on her tax return. She put that down to the many pressures on her life at that time. Considering that she was dealing with a serious sexual assault, holding down multiple jobs, volunteering and bringing up three children, she had an awful lot on her plate. She realised the mistake herself, reported it to HMRC, put her affairs in order and paid off the underpayment. HMRC accepted that it was a mistake and did not impose a fine. A few months later, she applied to the Home Office for indefinite leave to remain but, after a 19-month wait, she was rejected on the grounds of a tax discrepancy that had already been resolved to the satisfaction of HMRC.

This woman has now used up all her life savings on legal advice, has lost the right to work, can no longer afford to pay her mortgage or her bills, and is forced to live on handouts. She faces immediate deportation unless she can raise enough money to carry out further legal action. The Government have ruined this woman’s life.

Clearly, this woman and the thousands like her are assets to this country. They must not be used as pawns in the Government’s attempts to cover up the failures of their immigration policy by targeting people whose presence in this country is wholly legitimate and wholly beneficial. I hope the Minister agrees to suspend the use of paragraph 322(5) for purposes it was never intended for, sets up a hardship fund to help people this policy has damaged, and offers compensation to people who have lost their jobs, homes, savings and livelihoods because of it—and I hope she says sorry to the people she has damaged.

Photo of Stephen Timms Stephen Timms Labour, East Ham 5:04 pm, 13th June 2018

I, too, congratulate Alison Thewliss on all her work on this issue and on her speech.

A large group of my constituents are affected in exactly the same way as others, but let me first say this. I was a Minister with tax responsibilities on four separate occasions. It is an important principle of our tax system that, once a mistake has been identified and any additional tax due has been paid, the authorities do not come back with further recriminations unless new information subsequently comes to light. It has to be like that, otherwise there would not be an incentive for people to own up to mistakes and pay the additional tax due.

In the cases we are talking about, people have owned up to mistakes, tax has been paid and HMRC has been completely satisfied, but the Home Office has come back, sometimes years later, with recriminations—it has not just demanded more money but destroyed people’s livelihoods and, in a number of cases, broken up families—in a way that is wholly wrong and unfair. Like others, I have met many people in that situation.

My hon. Friend Jess Phillips referred to the Health Secretary, who failed to do what he should have done. As she said, he made what he described as an “honest administrative mistake” and received no sanction. I do not complain about the fact that there was no sanction, but we cannot have one rule for Cabinet Ministers and affluent people, and a completely different rule for our constituents. That is not the way things are done in Britain, and the Home Office cannot be allowed to behave in that way. People’s lives are literally being destroyed because they made honest administrative mistakes that have long since been rectified.

For far too many, the Home Office’s hostile environment has become an oppressive nightmare. This must end, and we need the Minister to take action today to start to put things right.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak 5:06 pm, 13th June 2018

I, too, congratulate Alison Thewliss.

I will concentrate on one case—that of my constituent, Mr Iftikhar Ahmad—although there are many others. He has run a business in this country that employs other people since 2011. He is also a victim of the Prime Minister’s hostile environment. I do not know what it says about the state of our country that we have ended up with a provision that was designed to protect us from terrorism being used to pick on people for minor tax difficulties, but it does not make it sound to me like the sort of place anyone would particularly want to live.

The Minister must know perfectly well that whenever MPs raise this issue, the replies they get are wholly inadequate. We get a cut-and-paste letter with a standard stamp on it that tells us that nobody bothered to read our letter and that there is absolutely no prospect of our being told when the matter might be dealt with. I do not blame the Minister for the hostile environment—the Prime Minister created that state of affairs when she was at the Home Office—and I know that since this issue got a bit of attention in the press, the Government have announced that it is no longer their policy. I was delighted to hear that.

Despite the limited time, I wonder whether the Minister will tell us honestly what happened. She is the Minister left holding the baby. What happened? How did we end up in this state of affairs? Will she give us a clue about what she thinks is the number of people affected? I certainly have reason to believe it is well over 1,000. The number of people affected by Windrush started small, but we suddenly discovered it was much bigger. How many lives like the ones we have heard about are being wrecked as a result of this situation, and what will she do for people such as Mr Ahmad, his wife and his three children? He cannot provide for them anymore. Just like everybody else who is affected, he has almost spent his life savings—savings he accumulated through his hard work in this country, while he was paying taxes and helping the rest of us. He is almost spent up. Will the Minister give him a chance to work while the review is concluded?

Photo of Ruth Cadbury Ruth Cadbury Labour, Brentford and Isleworth 5:09 pm, 13th June 2018

It is a pleasure to serve under your chairmanship, Ms McDonagh. I also thank Alison Thewliss for securing this excellent debate. I will try not to repeat the points that have been made by her and others. I declare an interest: I was chair of Barrow Cadbury Trust, which funded the Migrants’ Rights Network from its inception, and the MRN has been part of the group of organisations that has supported the work in Parliament today as well as at other times.

On Friday, I met a group of constituents in my surgery that included both individuals and couples who have been affected by the new operation of the immigration regulations. They are all from India and are highly qualified, well paid and well respected IT professionals. They came to answer this country’s skill shortage—a shortage that has not gone away. They work in our large and reputable companies such as Sky and Royal Mail, and one of the affected people they know even works for HMRC. Today, the Government launched a programme to attract tech entrepreneurs to the UK, yet the Home Office is effectively sending home high-skilled tech people who contribute so much to our economy. I must also say that they are, of course, net contributors to the Exchequer.

After the Windrush scandal, this is yet another example of the hostile environment operating at the Home Office. Many have been refused for spurious reasons. Those without the right of appeal cannot work, cannot take up the offer of promotion, cannot rent a flat and may lose their driving licence. Even those with pending appeals or judicial review applications who can work are losing jobs because nervous employers have asked them to resign. Many cannot travel to see family and cannot explain to their family why they cannot visit them. One person I met was told by the Home Office that he could get his travel documents to attend his brother’s funeral if he withdrew his application.

Given these people’s age profile, many have small children, or they want to start a family but cannot do so when they are in limbo. They told me, “We love this country and we don’t want to leave, yet we feel we’re just numbers. You”—not me but this Government and, they feel, this country—“want to attract talent from across the world, yet you don’t respect those of us who are here. This is affecting the reputation of the UK around the world.”

Some are refused not for tax problems but because, with their employer’s permission, they have extended their leave beyond 28 days to 45 days, or for maternity leave.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 5:12 pm, 13th June 2018

I thank my hon. Friend Alison Thewliss for securing the debate and pursuing this issue with her usual determination and eloquence, not just today but over several weeks. I thank all hon. Members for their contributions and, like Douglas Ross, thank the campaigners and witnesses who spoke to us this morning to give us an insight into what is going on.

I do not think there is a more effective way to highlight yet another rotten Home Office stink than by relaying the personal stories of the individuals affected, as hon. Members rightly have. I started jotting them down—Jim Shannon spoke about doctors who had made simple mistakes with their tax returns and Mr Dhesi spoke about law-abiding citizens with families who had been here for a decade—but I stopped when I got to the gobsmacking story relayed by Lyn Brown about the accountant who had owned up and yet found that that was not enough to satisfy the Home Office, and about all the consequences that followed.

This all reeks of another episode of the Home Office coming up with a new wheeze to increase the number of people they can remove, and implementing it with no concern for whether decisions stand up to scrutiny in terms of the law or, indeed, basic common decency. It is clear that the Home Office did not like tier 1 general visas as they were closed to new applicants in December 2010, and those still in that process face severe repercussions—low-hanging fruit indeed.

Will the Minister, in responding, tell us whether there has been any change to Home Office guidance? Have any new policies or instructions been issued that relate to tax discrepancies and the relevance of paragraph 322(5) to that issue? If not, what is her explanation for this sudden upsurge in the number of cases we have seen in the last 12 months? Members have pointed out, and were told this morning, that there are probably now more than 1,000 cases. Will she confirm the numbers her Department has? What do the data on appeals and judicial reviews tell us? What has happened to the review we were told was due to be completed by the end of May? Going further, why has the Department been so slow, given that those such as the hon. Members for Oxford East (Anneliese Dodds) and for Birmingham, Yardley (Jess Phillips) and my hon. Friend the Member for Glasgow Central have been raising this matter for months? Once again, it seems that there are systemic issues in the Home Office and those at the top do not appear to know what is going on.

When did the practice of comparing declared income on Home Office applications with tax returns commence, and what safeguards were put in place to ensure that caseworkers, who are not accountants or tax lawyers, did not put two and two together and come up with five? That is exactly what seems to be happening in too many cases. We have all read about cases where minor errors were corrected without demur from HMRC and where different sums were declared purely as a result of different accounting periods or rules applying. We heard again about cases where the difference was £1.20 or £1.60.

When was it decided that paragraph 322(5), which Home Office guidance states is usually to be focused on people involved in serious crime, threats to national security, war crimes and travel bans, was remotely appropriate for the sorts of circumstances we have heard about today? As my hon. Friend the Member for Glasgow Central and Dr Huq said, that could have serious implications for applications to travel to other countries.

No doubt the Minister will flag up, as she has before, examples of where apparently there has been genuine fraud. Obviously she cannot publish the details of those cases, and that is understood, but the problems with that being the total response from the Home Office are twofold. First, that is utterly contrary to the experience of everyone in the Chamber, as has been relayed, and it seems that yet again the Home Office is using the excuse of a few bad eggs to throw out more than 1,000 people. Secondly, it is a question of trust. I do not think that many members of the public or MPs here—especially after Windrush—will be happy with the Home Office saying, “Trust us. We’ll review things and sort it out.” If she wants us to have confidence in the process, there must be an independent review of what is going on. Will she set that up?

Finally—and most crucially of all—what steps can be taken to allow those individuals to live their lives here while they challenge what appear, in many cases, to be absolutely perverse decisions? Individuals and families are facing destitution and bankruptcy because of the outrageous changes to appeal rights made in 2014 and 2016. If the immigration system was just and respected the rule of law, they would all have an in-country right of appeal to a tribunal and their leave to remain would be automatically extended so that they could still work until the appeal process had been completed. What will the Minister do about that?

I finish by repeating what my hon. Friend said. So many of those involved are people we should be thanking, not threatening with removal. If there is one positive from today, it is that they know that MPs across the political divide are on their side and determined to put things right. I very much hope that the Minister is listening.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration) 5:16 pm, 13th June 2018

It is an honour to serve under you, Ms McDonagh. I thank Alison Thewliss for securing the debate and all Members for their contributions.

The Government’s treatment of highly skilled migrants has been shocking and unfair. Such migrants who have made legitimate and lawful changes to their tax returns are being put in the same category as serious criminals and terrorists. It is not just about the treatment of highly skilled migrants; it is about a hostile environment created by this Government, who treat all migrants like criminals and cannot distinguish between legal and illegal migrants. It is also about an ineffective Department that makes absurd mistakes, refuses appeals and cannot pick up on casework trends without media outrage.

First, I would like to discuss paragraph 322(5) and the way in which it is being used. According to Home Office policy guidance, it should be used for cases of criminality, threat to national security, war crimes or travel bans, yet a large number of refusals are on the basis of minor tax errors, many of which individuals picked up on and corrected themselves, as is their right. The Government’s overbearing hostile environment treats all migrants like criminals. Does the Minister recognise that many people are being penalised on the basis of 322(5) because of mistakes by the Home Office?

According to Home Office guidance, UK Visas and Immigration caseworkers are instructed to refer potential refusal decisions under paragraph 322(5) to a senior caseworker. Given the mistakes that I and other hon. Members have mentioned, does the Minister think that the system is working? How can such basic errors get past senior caseworkers and be allowed to play havoc with people’s lives?

Those are the actions of an overbearing Home Office driven by the Tory target of reducing net migration and failing to treat applicants in a fair and reasonable way. At least 1,000 highly skilled migrants seeking indefinite leave to remain are wrongly facing deportation owing to this paragraph. Our country desperately needs thousands of these people as NHS doctors, lawyers, teachers and engineers, and the effect of a refusal in such cases is devastating and lasting. People become ineligible for another visa and they are banned from returning to the UK for 10 years.

Often, people are either given only 14 days to leave the country or, if they stay, refused the right to work, to rent or to access NHS services. That is all without mentioning the mental and emotional effect of the process. During Home Office questions last week, I raised the issue of highly skilled migrants with the Minister, who said that,

“there have been several instances where those minor discrepancies have run into tens of thousands of pounds.”

She went on to say:

“We want to make sure that we collect the amount of tax that is owing.”—[Official Report, 4 June 2018;
Vol. 642, c. 7.]

Of course nobody here would disagree that we want to collect tax that is owed. However, it is in HMRC’s interests for people to correct their taxes, and HMRC is explicit that that is entirely permissible and encouraged, if done within the 12-month timeframe. Is the Minister comfortable with the role the Home Office is taking on, second-guessing HMRC decisions and reassessing cases that it has said are settled and will not be penalised?

In conclusion, many cases of highly skilled migrants are heartbreaking, not to mention nonsensical from the perspective of the UK’s interests. Our NHS is facing a staffing crisis, and our businesses need skills. Yet the Home Office is denying visas to NHS doctors, lawyers, teachers and engineers, condemning them to be labelled as terrorists, criminals and a threat to national security when they have committed only minor tax errors. Will the Minister commit to apply paragraph 322(5) properly—to target serious criminals, not bad accountants? Will she tell her officials not to automatically deny visas when they spot minor mistakes? Will she recognise that minor mistakes in tax returns are not evidence of fraud? This reckless and hostile environment is targeting the wrong people.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 5:21 pm, 13th June 2018

It is a pleasure, as always, to serve under your chairmanship, Mrs McDonagh. I congratulate Alison Thewliss on securing this exceptionally well-attended debate. There have been numerous contributions from hon. Members; I fear I will not have enough time to do them justice by referencing them individually, but I think it is important that we look closely at this whole matter. That is one reason why we have the review.

The hon. Lady and many hon. Members have raised individual cases, which are of course central to this debate, but we must also reflect on the policy as a whole, and many hon. Members have requested that I do so.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

When the Minister appeared before the Home Affairs Committee in May, she claimed she had not had the time to look at those cases because there had only been two working days since the issue had been flagged up. She was told in November last year by my hon. Friend Jess Phillips. My hon. Friend Matt Rodda wrote to her in February and we have heard that my hon. Friend Anneliese Dodds wrote to her in March. Can she clarify for the House, and for other members of the Committee, when she first knew about this issue?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

It is important that we reflect that I cannot comment on correspondence received by my predecessors back in November. What is important is that we are looking at the review now and at the individual cases, of which there are many. I will come to the specific points about numbers in due course.

As hon. Members will know, the Government are committed to building an immigration system that is fair to British citizens and legitimate migrants, while being tough on those who abuse the system or flout the law. We welcome those who wish to come here, stay here and take up highly skilled work, but people must play by the rules. Reports have suggested, and we have heard it repeated today, that the Home Office has been telling people who made a minor mistake on their tax records that we are deporting them because they are a threat to national security. I want to be very clear: that is not what is happening. We are not refusing people for making minor tax errors. We are certainly not saying they are terrorists.

The refusals we are discussing all relate to the tier 1 (general) route, which allowed individuals to come to the UK to look for work without needing a sponsoring employer. The hope was that they would make a significant economic contribution to the UK through taking up highly skilled jobs. The Government closed the route in 2011, as it had not worked as intended and, indeed, there were levels of abuse. Many applicants ended up in relatively low-paid work; an operational assessment of the route in 2010 found that 29% of tier 1 migrants were in low-skilled jobs and the employment of a further 46% was unclear. When they applied to extend their stay, many had PAYE earnings that were below what they needed to score enough points to remain in the route, but they also claimed for self-employed earnings. In some cases, the evidence showed that the claimed self-employment did not happen, and in other cases the evidence was less clear.

We were unable at the time to carry out the same level of checks with HMRC that we can today, and applicants in those cases where the evidence was not clear were given the benefit of the doubt. Now that those same individuals are applying for settlement, we are able to make more rigorous checks with HMRC on what applicants have told us in the past about their self-employment, and compare it with what they have told us for HMRC purposes.

Again, I want to be really clear: we do not have a policy of refusing people for making minor tax errors. We all know that many people have to make corrections to their tax records. However, there is a clear pattern that does not reflect that sort of minor correction. In many cases, more often than not, the self-employed earnings used to claim points in the tier 1 application have been £10,000 or more higher than the self-employed earnings reported to HMRC. That is not minor.

There are numerous examples where applicants have either not amended their tax records, or have amended them several years later, only shortly before applying for settlement, so that the records match. We have even seen cases where applicants have subsequently amended their tax records back down again after applying for settlement.

We give applicants the opportunity to explain, and we take their explanation and all available evidence into account. Any such cases must be signed off by a manager before they are refused. The review that I am carrying out is checking those safeguards to make sure that they have been followed correctly. We only refuse cases where applicants have been unable to provide a satisfactory explanation of what their self-employed activities are or why their earnings reported to the Home Office and to HMRC are so different. We will refuse cases where the evidence leads us to conclude that an applicant provided misleading information to one branch of Government or other.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am sorry; I only have a few minutes and I want to explain what paragraph 322(5) is for. It is for refusing applications where the evidence shows that an individual has not played by the rules. While there has been a focus on the minority of judgments that go against the Home Office, more often than not the courts have supported our refusal decisions.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am sorry; I simply do not have time. I have about three minutes left.

To pick an example, in May this year the upper tribunal agreed with us that an applicant’s explanation was simply “hopeless”, and noted the timing of the amendment in relation to the ILR application. Paragraph 322(5) is a long-standing provision within the immigration rules, dating back to 1994.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I have already told the hon. Lady that I will not. Paragraph 322(5) was not introduced to support compliant environment policies, as has been suggested, as it long pre-existed those policies. It does not mean that any particular individual represents a threat to national security, but for obvious reasons we do not seek to isolate national security refusals from others.

However, I also recognise that it is not enough simply to talk about circumstances that happen more often than not. Each case is individual and must be treated on its own merits, which is why we are using this review to make sure that no one who has made an innocent mistake has been caught up in tackling the wider abuse. That is why we have had this review, which is still ongoing. The first phase is complete, and I just wanted to indicate specific numbers. There were 281 in the first phase and 1,671 in the second. While I do not wish to prejudge the final conclusions, it has been very clear that they are broadly in line with what I have said this afternoon. I will report the conclusions of the review to Parliament once it is completed. [Hon. Members: “When?”] The first phase of the review, as I indicated, is already complete. As soon as the second phase, which is a significantly higher number, is done, we will report it to Parliament and to the Home Affairs Committee, as I said.

We are aware of 427 appeals and judicial reviews in progress. Many are still outstanding, but no applicants have been successful at judicial review, and only 38 appeals have been allowed, mostly on human rights grounds. All current cases are on hold, and while it is the case the applicants’ statuses are protected, it means that those who applied before their existing leave expired can continue to work, and their other rights, to rent and to NHS services, are also unaffected.

In 50 of the cases we have considered, there has been a discrepancy in excess of £10,000 between the income claimed to HMRC and the income claimed to UKVI, and 34 of the applicants only sought to amend their tax records within the 12 months preceding the submission of an application.

It is very important that we have a rigorous review that reports when the findings are clear. However, I would like to inform Members this afternoon that we have taken a very thorough approach with this, determined to find out whether there are any genuinely wrong refusals and to put them right.

Question put and agreed to.

Resolved,

That this House
has considered paragraph 322(5) of the Immigration Rules.

Sitting adjourned.