Upper Tribunal (Immigration and asylum chamber), 2019-03-27, HU/05545/2018 & Ors

JurisdictionUK Non-devolved
Date27 March 2019
Published date10 May 2019
Hearing Date19 March 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberHU/05545/2018 & Ors

Appeal Numbers: HU/05545/2018

HU/11751/2018

HU/11752/2018



Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: HU/05545/2018

HU/11751/2018

HU/11752/2018



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 19 March 2019

On 27 March 2019




Before


UPPER TRIBUNAL JUDGE WARR



Between


THE Secretary of State FOR THE Home Department

Appellant

and


MR SKV

MRS RV

MR AV

(ANONYMITY DIRECTION MADE)

Respondents



Representation:

For the Appellant: Ms K Pal. Presenting Officer

For the Respondents: Mr S Bellara of Counsel instructed by Legend Solicitors



DECISION AND REASONS


1. This is the appeal of the Secretary of State but I will refer to the original appellants as the appellants herein. They are citizens of India and are husband and wife aged 36 and 33 respectively, and the third named appellant is their 4 year old child. Any reference to the appellant is a reference to the first named appellant. The appeals of the second and third named appellants depend on the outcome of the appeal in respect of the first appellant. There is no dispute that the appellant had been lawfully resident in the UK for over ten years, having arrived in 2007 and having leave to remain until December 2016. He was joined by his wife and child in 2013 and 2014 respectively. The Secretary of State refused the appellant’s application applying paragraph 322(5) of the Rules. The basis for the refusal is summarised by the First-tier Judge as follows:

10. The Respondent states that the First Appellant, when making an application in April 2010, claimed to have an income of £35,778 from both self-employment and PAYE employment. In May 2017, he was asked by the Respondent to complete a tax questionnaire and to provide evidence of his earnings for his years of self-employment. In response to the questionnaire he confirmed that he had needed to correct a tax return in the past and provided details of those corrections [122]. He had, in fact, only declared £20,460 in earnings to HMRC in the year 2010/11. If his true earnings had been declared to them, the Respondent stated, he would not have been granted leave.

11. The First Appellant denied that he had intentionally made false representations to either the Respondent or HMRC. That was his first year of trading and he knew little of the tax system and therefore, having passed over the relevant paperwork to his accountant, he relied on them to file his return accurately – he had not checked it himself. The matters only came to his attention in December 2015, when he and his father were considering buying some land in India and he was required to provide tax details of his earnings in UK. He said that he and his father were buying this land from savings and that no mortgage loan was required. He was challenged therefore as to why any prospective purchaser would need to know his tax affairs, when all he and his father had to do was show evidence of those savings. He was not really able to explain, simply stating that information was required. He contacted his accountant, who rectified the error without delay and he repaid the tax due, of £8912 and was given a penalty of about £400. The Accountant, Right Solutions Ltd, provided a letter, dated 2 October 2018 stated that they had acted in error at the time. He was also challenged as to why it took until August 2016 for the payment to be made and he said that that was how long HMRC took to process the matter. HMRC had not accused him of dishonesty.

12. He was asked as to whether he had made a complaint to the Accountant’s professional body, particularly concerning the risk the negligence had posed to his immigration status and said he had not, as the Accountant had apologised and agreed to discount future bills, also taking account of the penalty he’d had to pay”.

The judge considered the submissions made on behalf of the Secretary of State. Reliance was placed on the refusal decision. The fact that the tax arrears had been paid did not mean that the appellant had behaved honestly.


2. The appellant’s Counsel referred to the case of Shaik v Secretary of State [2017] UKUT JR/8324 which indicated that:

A single mistake (albeit a significant one) in the first tax return he was required to file might be viewed in a different light to a series of mistakes that are corrected at a later date ... the fact that there was evidence to indicate that the returns filed after 2010/11 were not amended (as is the case in this appeal) was a relevant consideration”.

It was pointed out that this was the appellant’s first tax year and reference was made to Samant v Secretary of State [2017] UKUT JR/6546/2016 which indicated that if it were accepted by an accountant that the error was theirs “this would be an exceedingly powerful point in his favour”. The First-tier Judge made the following findings:

15. I do not consider that the Respondent is able to rely on paragraph 322(5), in respect of the tax liability. The Respondent’s own guidance (January 2018) indicates that ‘the main type 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 ... this may include cases where a migrant has entered or facilitated a sham marriage’. There is no criminal act here; the First Appellant declared the ‘error’ and has voluntarily repaid the money. The burden is on the Respondent to show dishonesty on the Appellant’s part and I don’t consider that the Respondent has discharged that burden, for the following reasons:

(i) the Appellant has provided an alternative explanation for the under-declaration, namely his Accountant’s error, backed up by correspondence from that Accountant (Samant). I have no reason to doubt that evidence. I don’t consider any failure to complain about the Accountant to be significant, when the error has been rectified and the Appellant is content that he will not be out of pocket.

(ii) The Appellant has stated that he trusted his Accountant, it was his first year of trading and he had no knowledge of such matters.

(iii) His tax affairs have been in order for the subsequent five years (Shaikh).

(iv) While his explanation as to how he discovered the error was unclear, it’s not entirely implausible that an Indian property vendor may require the documentation he has referred to”.

3. In dealing with the human rights appeal the judge took into account the fact that the appellant on his findings met the relevant requirements of the Rules and weighed up the public interest considerations, noting that on his findings the appellant had not breached the Rules. The appellant met the financial requirements and all the appellants spoke English. While the appellant’s status had been precarious it was not appropriate to attach “no weight” to it. It was not a period of time that should be entirely discounted in all the circumstances. Reference was made to Treebhawon [2017] UKUT 13 (IAC). The judge accordingly found that removal from the UK would be a disproportionate interference with the family’s right to respect for private life. He allowed the appeal under Article 8. In applying for permission to appeal the Secretary of State argued that the judge had erred in paragraph 15 of his determination in considering that cases that fell for consideration under paragraph 322(5) were criminal cases. 322(5) called into question a person’s character or conduct to the extent that it was undesirable to allow them to remain in the UK and this approach was a much lower standard than that used by the Tribunal. The judge had applied an artificially high standard and his findings were unsafe. If the Tribunal had applied “this wider standard” it may well have reached a different set of findings. In the second ground it was argued that the Tribunal had erred in having regard to the appellant reimbursing payment of tax arrears. It was submitted that this was irrelevant given that it did not go to the motives of the appellant at the time that the financial discrepancy occurred. In granting permission to appeal the First-tier Tribunal Judge noted that it was hard to see why the judge had erred in referring to criminal cases since all the judge had done was to quote from the Secretary of State’s own guidance. However, the judge had gone on to find that the burden was on the respondent to show dishonesty on the appellant’s part which was not arguably not the case under paragraph 322(5).


4. At the hearing Ms Pal referred to the guidance under paragraph 322(5). This reads:

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.

A person does not need to have been convicted of a criminal offence for this provision to apply. When deciding whether to refuse under this category, the key thing to consider is if there is reliable evidence to support a decision that the person’s behaviour calls into question their character and/or conduct and/or their associations to the extent that it is undesirable to allow them to enter or remain in the UK. This may include cases where a migrant has entered, attempted to enter or facilitated a sham...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT