Review of Tier 1 (General) refusals under paragraph 322(5)

The government published the review of applications by Tier 1 (General) Migrants refused under paragraph 322(5) of the Immigration Rules on 22 November 2018.

Background

Tier 1 (General) replaced the Highly Skilled Migrant Programme in 2008 and was intended to allow people to work without requiring sponsorship.  The government closed the Tier 1 (General) route in 2011 as a result of concern about abuse of the system. The route closed completely in April 2018 for ILR applications.   A large number of these applications have been refused on character and conduct grounds, the Home Office citing paragraph 322(5) of the Immigration Rules.

Paragraph 322(5) of the Immigration Rules reads:

“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”.

This is a discretionary ground of refusal and therefore there is no duty to refuse on this basis.

Many groups comprising of individuals affected by such refusals have been tirelessly campaigning and the issue came to the attention of the press.  Many have families, many are facing significant delay and many are left without a right to work while they try to resolve their position.

Many cases have been refused where incomes differ to that which was declared to HMRC and/or where the individual has later amended information in a self assessment tax return.  Many individuals, including professionals, remain understandably concerned that refusal on this basis means their reputation is tarnished forever.

Many individuals contacted their MPs and this led to the matter being debated in Parliament.  The debate then led to a review, which was confirmed by the Secretary of State, Sajid Javid in a letter dated 25 May 2018.

Scope and General Observations

“Whether there were systemic issues leading to settlement applications by Tier 1 (General) migrants being refused incorrectly” sets out the scope of the review.  The review does not not mean reassessment in every case.

The review was led by Senior Operational Managers who had no prior involvement in this work and applications.

The review considered the differences in declarations, the basis on which the income was declared and the reasons given for a discrepancy… READ MORE