Appeal Refusing ILR under Paragraph 322(5)

Jay Gajjar, instructed by Muhammad of Zahab Jamali of S. A. J Legal Solicitors, successfully sought permission to appeal to the Court of Appeal against the decision of the Upper Tribunal to dismiss the Appellant’s claim for judicial review under paragraph 332(5) for tax discrepancies.

Background

The Secretary of State initially refused the Appellant’s ILR application owing to discrepancies between income declared to UKVI in comparison to what the Appellant told HMRC and the conclusion that he was not genuinely engaged in self-employed work.

Paragraph 322(5) applies where it is “undesirable” to permit an Applicant to remain in the UK ‘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 case is of considerable importance for the following reasons:

1. It will consider the content of minded to refuse letters and their compliance with procedural fairness following Balajigari [2019] EWCA Civ 673.

2. It will consider the extent to which it can be said that the applicant “should have anticipated” what was coming.

3. The Court of Appeal will consider whether it is lawful to only grant limited leave (as opposed to ILR) for those who have practised deception but who, for reasons such as family connections, cannot be removed.

Jay Gajjar, representing the Appellant, argued the Upper Tribunal wrongly concluded that there was no procedural unfairness and the Secretary of State’s conduct fell short of enabling the Appellant from having sufficient notice and a fair opportunity to respond to issues raised in the refusal letter.

Jay also invited the court to find the Upper Tribunal irrationally concluded that the Respondent had lawfully exercised her discretionary powers under paragraph 322(5) in circumstances where it was plain from the reasons for refusal letter that this was not the case.

Additionally, despite paragraph 322(5) being a discretionary ground for refusal, the Immigration Rules do not distinguish between “leave to remain” and “indefinite leave to remain” when discussing character and conduct, either under paragraph 322(5) or 276B(ii).

Decision

The High Court considered that the Secretary of State should have specified her continuing concerns and given the Appellant an opportunity to deal with them before making her decision and that further clarification and guidance were needed from the Court of Appeal to address the above issues.

Jay Gajjar and Protap Nath previously appeared in the Upper Tribunal for the substantive hearing and were instructed by Muhammad of Zahab Jamali of S. A. J Legal Solicitors.