By Lauren Codling
MORE than 1,000 highly skilled migrants in the UK, including professionals from India and Pakistan, are at risk of deportation, it has emerged.
Teachers, lawyers, doctors and engineers seeking indefinite leave to remain (ILR) in Britain are facing being sent back to the country of their origin under a section of the immigration act 322(5) designed to tackle terrorism.
Last Wednesday (2), the professionals, brought together under the banner of the Highly Skilled Migrants group, held a demonstration opposite Parliament Square in London to protest against “unjustified” refusals by the Home Office of their applications for ILR in Britain.
Businessman Saleem Dadabhoy is facing deportation to Pakistan under the act. He is the director of Connexion Electrical Ltd, an electrical supplies company which is worth £1.5 million and is thought to employ 20 British citizens.
The company’s founder Andrew Leigh told The Guardian last weekend that Dadabhoy is so vital to the company’s operations that it would have to close if he was forced to leave the company.
According to lawyers, the Home Office has made two basic accounting errors, leading them to use the discrepancy as evidence that Dadabhoy submitted inaccurate figures.
The businessman was served with a deportation order last November and has spent £15,000 on legal fees alone. So far, three different appeal courts have found no evidence of any irregularities in his bank accounts, and a judge ruled that he is a credible and trustworthy figure in society.
Dadabhoy, whose family is the 30th richest in his native Pakistan, told the paper he is concerned the act will link him to terrorism which could potentially restrict him from travelling and working in a different country in the future.
“[It] would be especially damaging to me, belonging as I do to a business family which has property interests around the globe,” he said. “Even if I returned to Pakistan tomorrow, this paragraph 322(5) would make it virtually impossible for me to get a business visa, which would be a great hindrance to my family’s business, my career and personal life.”
Since their previous protest in February, many of the affected professionals refused ILR have appealed against the Home Office decision in the First Tier Tribunal and Upper Tribunal – the courts which hear immigration appeals.
“Given the Windrush scandal involving innocent migrants being denied their citizenship rights and the new home secretary (Sajid Javid) assuring the public that the Home Office will be fair in its immigration decisions, these cases take on an added significance,” said
Aditi Bhardwaj, one of the convenors of the group.
“The way some of these skilled professionals have been treated is worse than criminals. We have evidence to show that the entire approach of the Home Office is unfair because it is based on how to find a way to deny someone’s legitimate application to live and work in the country,” she added.
Immigration minister Caroline Nokes was unavailable for interview when approached by Eastern Eye.
Labour MP and shadow minister for immigration Afzal Khan said the Home Office was “driven by a misguided net migration target”.
“Going after NHS doctors, lawyers, teachers and engineers on the basis of tax errors is another example of the misguided injustice of the Home Office,” Khan said.
SNP politician Alison Thewliss urged the Home Office to “get their house in order” before any further lives were affected.
“The litany of callous incompetence by the Home Office has been laid bare in the past few weeks, first with the Windrush scandal and now with the revelations regarding removal targets,” Thewliss said.
“The way that the 322(5) rules are being applied is similarly malevolent,” she said.
In another case, Nisha Mohite, from Mumbai, India, came to the UK in 2008 but is now facing deportation after she was served section 322(5) for undesirable conduct by the ministerial department.
Mohite, who completed a masters in pharmaceutical analysis and has since set up her own pharmaceutical consultancy in the UK, was handed the section after she applied for an ILR, The Guardian said on Tuesday (8).
The paper noted her accountant had failed to declare her pre-declared employment income
and over £15,000 income for self-employment of 2010 to 2011 on her self-assessment tax returns. Mohite was then told she had been served the act for ‘undesirable misconduct’.
Unable to secure work since 2016, she said she is running out of options after using her savings to fight the case.
“I’m exhausted. Sometimes I’m suicidal,” she was quoted as saying. “I can’t go home with a 322(5) on my passport… I’ve got no choice but to fight. But I don’t know how long I can fight for, or what I will do if I lose that fight – or what I will do when I run out of money because I have so little left.”
Professional migrant workers from non-European Union countries such as India, Pakistan, Bangladesh and Nigeria, were in the UK on a Tier 1 (General) visa.
They were entitled to apply for ILR or permanent residency status after a minimum of five years lawful stay in the UK. While the visa category was discontinued in 2010, former applicants were eligible to apply for ILR until April this year if they met the necessary requirements.
However legal experts have noted a pattern of many applications being turned down on the basis of Rule 322(5), a discretionary rule linked to an applicant’s “good character”.
The reason for refusal under this rule is often a discrepancy in the earnings declared to the Home Office and that to HMRC. While in some cases there may be a legal case of downplaying income for tax reasons or overstating for immigration purposes, experts believe the rule has been used unfairly as a blanket reason for turning down most applications under the Tier 1 (General) route.
Bhardwaj claimed 10 members of the union have previously taken the Home Office to the first-tier tribunal over their use of 322(5) in a period of six months. She stated nine of those individuals had won their cases, with the appeal judge ruling the government’s use of section 322(5) was incorrect.
“At best, this suggests the Home Office is recklessly incompetent in its use of 322(5),” she said. “At worst, however, the section is being applied so often and being overturned so frequently when challenged at the highest level, that I question whether there is a blanket policy which the Home Office is using internally, which no one is aware about.”
“In previous years, this refusal reason seems to have become near-automatic. The Home Office should not be treating legitimate businesspeople as dishonest where there may be an innocent explanation,” said Mark Symes, a senior immigration barrister, who added
he was aware of several such cases where the Home Office seems to have displayed a “shoot first mentality”.
“The main potential for injustice is the seemingly automatic refusal of applications even when there are good explanations provided, for example where an accountant has admitted their own error in writing.”
A 31-year-old Indian professional, who had a similar experience due to a minor correction in his tax return, is now fighting his case in the UK Court of Appeal. The former Heathrow Airport worker’s case has the potential of becoming a test case for hundreds of others
who have been denied their ILR on similar grounds.
“The judge has indicated that the grounds of appeal have a good prospect of success,” said the professional on condition of anonymity. “My entire life has been on hold for two years, during which I have been unable to work or focus on anything else. The Home Office is just interested in its immigration targets and finding any means to deny what is our right as skilled professionals who have been working hard and paying our taxes in this country.”
His case comes up for its next hearing in June and could pave the way for a wider class action legal challenge. “It is possible that a class action would be a good way for getting the law and the legal requirement for fairness to be clarified,” said Symes.
The latest scandal comes in the wake of Windrush, in which the generation who were brought to the UK from West Indies between 1948 and the early 1970s to help rebuild Britain after the Second World War were repeatedly threatened with deportation.
Home secretary Amber Rudd resigned following revelations she had misled parliament. Sajid Javid has since took up the post. Last Wednesday (2), prime minister Theresa May announced an internal review of the Home Office’s management of the wrongdoing.
A Home office spokesperson told Eastern Eye: “It is vital the correct decisions are made, particularly with complex Tier 1 applications that require detailed consideration and verification of evidence with HMRC. These robust checks are essential to avoid the potential abuse of our immigration or tax system.
“Where we identify discrepancies between the income declared to the Home Office and to HMRC, we give applicants an opportunity to explain them before making a decision. Where abuse is identified, we will act accordingly.”
