In a judgment that will impact many Bangladeshi professionals based in the UK, the UK Court of Appeal ruled against the British government on Tuesday to find that the use of a controversial national security clause was "legally flawed".
The test case involving South Asian professionals who had been refused their Indefinite Leave to Remain (ILR) in the UK under a skilled visa category over perceived dishonesty in reporting their earnings to the UK’s tax department is expected to form the basis of many other such applications. The Royal Courts of Justice in London ruled against UK Home Secretary Sajid Javid and found his approach to apply Paragraph 322(5) of the immigration rules related to conduct and character in such cases needed to be reassessed.
“The formal result is that each of these four appeals will be allowed,” concludes the judgment handed down by Lord Justice Underhill, Lord Justice Hickinbottom and Lord Justice Singh.
“The approach taken by the Secretary of State [Javid] in deciding to refuse the applications for leave to remain in each of these cases on paragraph 322(5) grounds – which we take to have been his general approach in all earnings discrepancy cases – was legally flawed,” the judgment notes.
The judges conclude that the Home Office proceeded directly from finding discrepancies in reported earnings by the applicants to a decision that they were the result of dishonesty, without giving the applicants an opportunity to “proffer an innocent explanation”. They lay out a number of procedural directions, which are likely to impact other similar cases in future.
While the Court of Appeal test case involved mainly Indian nationals, similar cases of Bangladeshi professionals, including Muhammad and Sadeque, have also been raised over the past year during representations in the UK Parliament.
The judgement this week follows months of legal wrangles faced by such professionals, largely from South Asia, who were entitled to apply for Indefinite Leave to Remain (ILR) after a minimum of five years’ lawful residency in the UK. Legal experts noted a pattern of many such applications being turned down by Home Office caseworkers citing clause 322(5) of the UK Immigration Act, a discretionary rule aimed at denying convicted criminals and terrorists the right to live in the UK. 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 in order to make up the required income-related points on their settlement application.
A Home Office spokesperson said that the department would consider the judgment and its response to it “carefully”.
“The Court agreed that the use of paragraph 322(5) is appropriate in these types of cases and that we are right to expect a full and convincing explanation from people when there are discrepancies in their tax records and immigration applications,” the spokesperson said.