UK defends refusal of rights for Indian professionals

The UK government has defended its controversial decision to deny residency rights to hundreds of highly skilled professionals, including Indians, who made legally acceptable amendments to their tax records, claiming the applicants caught up in the visa row are guilty of misconduct.

Following a long-drawn campaign by the Highly Skilled Migrants Group, the UK Home Office had opened a review into Tier 1 (General) visa cases involving teachers, doctors, lawyers and engineers from countries like India, Pakistan and Bangladesh being refused indefinite leave to remain (ILR) under a national security clause.

At the conclusion of the first phase of the review, UK minister for immigration Caroline Nokes reported in a letter to the House of Commons' influential Home Affairs Select Committee (HASC) that her department's decision to refuse applications under Paragraph 322(5) of the UK's immigration rules due to a discrepancy in reported earnings had been "correct".

The letter, however, also acknowledged that the review had thrown up 38 cases of Home Office refusals being overturned and allowed on appeal.

"Although the earnings issues were considered on appeal, the majority were overturned solely on human rights grounds rather than because of decision-making errors relating to earnings," Nokes said.

The Highly Skilled Migrants Group expressed shock at the minister's attempt to downplay this figure, where applicants won their appeals in at least 38 instances – a figure expected to go up once the review into the remaining 1,671 cases is completed in the next few weeks.

"It just proves our point about Paragraph 322(5) being used disproportionately," said Aditi Bhardwaj, coordinator of the group, which has been lobbying ministers through major protests outside the UK Parliament since early this year.

"The very fact that these appeals are being allowed on human rights grounds should hopefully prevent the future disproportionate use of this clause and prevent applicants having to challenge Home Office decisions in court," Bhardwaj said.

"It does show they (Home Office) were making mistakes. This should tell them that at the very least not to refuse people where there are serious human rights grounds, such as family ties in the UK and young children involved," Bhardwaj said.

Nokes confirms in her letter to HASC that the outstanding Tier 1 (General) visa decisions remain on hold pending the outcome of the review, holding out hope for the protesters that Paragraph 322(5) may be used in a "fairer" manner in future Home Office decisions for these applicants.

The UK Home Office said it had so far reviewed 281 of these visa applications made by post and concluded that in 249 cases applicants had amended their tax record by more than 10,000 pounds and in many of the remaining cases, the differences were "substantial".

"Applications were not refused on the grounds that the applicants made errors in their tax returns. They were refused on the grounds that applicants had, most likely, exaggerated their earnings to the Home Office to claim enough points to obtain indefinite leave to remain in the UK or, alternatively, substantially under-reported their earnings to HMRC (Her Majesty's Revenue and Customs) to evade tax," Nokes said.

"In either scenario, their character and conduct is such that their applications should not be granted," she said in her June 21 letter addressed to HASC chair Yvette Cooper.

Nokes said she was confident that the "overall handling of these cases, including the application of Paragraph 322(5), has been correct".

British MPs, peers and legal experts have waded into the ongoing row over the past few months, warning that the discretionary 322(5) clause intended to expel terrorists from the UK was being "abused" to deny residency rights to professionals on a Tier 1 (General) visa over legally acceptable amendments to their tax records.

The row involves migrants from outside the European Union (EU) who were entitled to apply for ILR, or permanent residency status, after a minimum of five years' lawful residency in the UK.

While the Tier 1 (General) visa they used was discontinued in 2011, former applicants were eligible to apply for ILR until April this year if they made up the required number of points on their application.

However, legal experts noted a pattern of many such applications being turned down by Home Office caseworkers citing Paragraph 322(5) of the UK Immigration Act, a discretionary rule aimed at denying convicted criminals and terrorists the right to live in the UK.

While the Home Office questioned the "good character" of these professionals over apparent differences in their declared earnings to the UK tax department and the Home Office, protesters have argued that in many cases innocent errors have resulted in them being refused their residency rights under the same clause intended for convicted criminals.