Upper Tribunal (Immigration and asylum chamber), 2018-01-10, JR/13807/2016
| Jurisdiction | UK Non-devolved |
| Date | 10 January 2018 |
| Published date | 24 April 2019 |
| Hearing Date | 20 November 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/13807/2016 |
Case Number: JR/13807/2016
IN THE UPPER TRIBUNAL
JR/13807/2016
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 20 November 2017
the queen (ON THE application OF)
MuHAMMAD shoban abbasi
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE RIMINGTON
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Mr P Haywood, Counsel instructed by Sky Solicitors appeared on behalf of the Applicant.
Mr Z Malik, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
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APPLICATION FOR PERMISSION
JUDGMENT
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
JUDGE RIMINGTON: The applicant challenges the Secretary of State’s decision of 18 August 2016 (the ‘Decision’) to refuse his application for indefinite leave to remain in the United Kingdom as a Tier 1 (General) Migrant. It is also a challenge to the Secretary of
State’s Administrative Review decision of 26 September 2016 (the ‘AR Decision’) to refuse the applicant’s subsequent application for administrative review.
The Factual Background
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The applicant is a citizen of Pakistan, born on 5 May 1975 and entered the United Kingdom on 23 September 2007 with entry clearance as a student valid from 10 September 2007. He made further applications for Leave to Remain under the Points Based System and his leave was extended as a Tier 1 (General) Migrant by various extensions to 20 August 2016.
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On 18 August 2016 he made an application for indefinite leave to remain as a Tier 1 (General) Migrant and that application was refused (the Decision) on the same day under paragraph 245CD(b) and (g) with reference to the requirements contained in Appendix A, paragraph 19(i)(i) and 322(5) of the Immigration Rules.
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The Decision recorded that when the applicant applied for leave to remain as a Tier 1 (General) Migrant on 23 December 2010 he stated that he earned £43,926 from self-employment in his business entitled “Abbasi Accountancy and Financial Services” between 1 November 2009 and 31 October 2010. In addition, when he applied for leave to remain on 24 July 2013, he stated that his income from Abbasi Accountancy and Financial Services Limited for the period between 1 July 2012 and 30 June 2013 had been £53,504.44
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HMRC records, however, and on which the respondent relied, dated 5 January 2015 indicated that the applicant had not paid tax as required on these earnings.
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The Secretary of State concluded that it was not desirable for the applicant to be granted indefinite leave to remain owing to his character and conduct under paragraph 322(5) of the Immigration Rules. Inter alia, the Secretary of State noted there was a discrepancy between the earnings that he claimed in his earlier applications for leave to remain as a Tier 1 (General) Migrant and the earnings that he had declared to HMRC. Hence the Secretary of State was not satisfied that his currently claimed earnings were genuine under paragraph 19(i) of Appendix A to the Immigration Rules.
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Simply put, the applicant’s case is that as soon as he discovered that his previous accountants had made a mistake about his tax liabilities for his self-employed income, he took steps to remedy the default and that he had explained this to the respondent when he applied for indefinite leave to remain.
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After issuing the Pre-Action Protocol letter to which the Secretary of State responded the applicant issued judicial review proceedings on 23 December 2016.
Grounds of Judicial Review
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The applicant in summary submitted that:
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the Secretary of State’s approach to paragraph 322(5) of the Immigration Rules and findings in relation to it were flawed and inconsistent with her published guidance; the level of offending behaviour that the respondent relied upon did not come under the scope of the provision; either HMRC was misled or UKVI was misled – the Secretary of State had not stated which: the respondent had failed to set out reasons under Paragraph 322(5) in line with her guidance: there was no evidence of HMRC taking action against the applicant: the subjective approach to fraud was required to be adopted by the respondent
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there was no evidence that a Senior Caseworker had considered the applicant’s matter in accordance with published policy;
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the Secretary of State acted unfairly in failing to invite the applicant to put forward reasons why his application should not be refused prior to his refusing his application, and
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the Secretary of State’s findings as to the applicant’s currently claimed earnings were flawed in relation to paragraph 245CD (g)
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Initially the application was refused on the papers but permission was granted by Upper Tribunal Judge Finch at a subsequent oral renewal hearing.
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In granting permission, on all grounds, Judge Finch stated that she found paragraph 322(5) of the Immigration Rules could apply in the circumstances, but that it was arguable that the respondent failed to find whether the basis of the alleged dishonesty was the failure to declare income to the HMRC or the inflation of his income for the purposes of the application of leave. It appeared that the respondent had accepted the evidence submitted in 2010 and 2013 in relation to his genuine self-employed earnings. She found that it was arguably insufficient for the respondent to merely rely on factor 19(j)(iv). This interpretation of the Rules was fortified by paragraph 84 of the Tier 1 of the points-based system – policy – which is entitled ‘genuine earning test’ which repeated the factors listed in paragraph 19(j) of Appendix A and prefaced with a statement to the effect that is: “When considering your earnings we will assess the following:’.
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Further it was arguable that a Senior Caseworker should have considered the application as per the Guidance:-
‘The respondent’s own guidance on General Grounds for Refusal Section 4 – version 26.0 to her case workers indicated that in cases where paragraph 322(5) may apply a caseworker must refer an application to a Senior Caseworker before refusing such an application. Counsel for the respondent submitted that the respondent was not obliged to follow the guidance in every case. However, a failure to follow published policy on the part of the respondent is an accepted and arguable error of law’.”
The Decision letter of 18th August 2016
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The decision letter of 18 August 2016 set out as follows:
“In your initial applications dated 23 December 2010 for leave to remain as a Tier 1 (General) Migrant you claimed a total income of £66,920.97 from salaried and self employed earnings. You claimed self employment net income of £43,926.0 from Abbasi Accountancy & Financial Services for the period of 01 November 2009 to 31 October 2010.
In your last application dated 24 July 2013 you claimed a total income of £73,754.90 from both salaried and self employed earnings. You claimed self employed net income of £53,504.44 from Abbasi Accountancy & Financial Services Ltd for the period of 01 July 2012 to 30 June 2013.
HMRC data dated 05 January 2015 confirms the following:
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Home Office claimed period
Net Profit amount declared to Home Office
HMRC Tax Year
Net Profit declared to HMRC
Discrepancies
1 November 2009 to 31 October 2010
£43,926.00
2009/2010
2010/2011
£0.00
£5,205
£38,721.00
01 July 2012 to 30 June 2013
£53,504.44
2012/2013
2013/2014
£0.00
£0.00
£53,504.44
The above records show that you have not earned the amount that you claimed in your applications for which you were awarded 40 points.
You have declared as part of your application that you have amended your tax returns in November 2015 for the tax period 2009/2010, 2011/12, 2013 and 2014. You have provided SA302 for the above tax period with a letter from HMRC dated 03 August 2016 which shows that you have contacted the HM Revenue and Customs on 2 August 2016 for SA302. These SA302 shows that you made the amendments in order to get indefinite leave to remain. The amounts that you claimed in your previous applications submitted on 23 December 2010 and 24 July 2013 were respectively not credible.
The Secretary of State is therefore satisfied that you have declared these earnings to HMRC retrospectively and did not declare the earnings as part of your tax return at the time for the appropriate tax period.
It is acknowledged that Paragraph 322(5) of the Immigration Rules is not a mandatory refusal, however the evidence submitted does not satisfactorily demonstrate that the failure to declare to HMRC at the time of the self-employed earnings declared on your previous application for leave to remain as a Tier 1 (General) Migrant was...
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