3. Mr H complains UKVI incorrectly refused his application for indefinite leave to remain in the UK, due to an error he made on a previous tax return.
4. Mr H told us this meant he was unlawfully denied the right to live and work in the UK, which meant he experienced financial losses and emotional distress.
5. Mr H wants compensation to cover his losses and for damages.
6. Mr H applied for Indefinite Leave to Remain (ILR) in the UK on 30 March 2016, based on five years residency. UKVI refused his application based on immigration rule 322(5). Mr H requested an administrative review of this decision (asking for UKVI for review its decision). The outcome on 29 April was to uphold the decision to refuse ILR. At this point Mr H lost his right to work in the UK, as his previous leave to remain expired on 27 April. Mr H applied for a judicial review (review by a judge) on 30 April.
7. Mr H applied again for ILR in May 2016. UKVI declined the application on the same grounds. Mr H submitted an administrative review of this decision. On 24 November UKVI upheld the decision to refuse ILR. Mr H also applied for a judicial review of this decision.
8. After a decision on a similar case in April 2019, Mr H lodged an appeal with the First Tier Tribunal, based on Article 8 of the Human Rights Act 1998. This was because of Mr H having ‘established a private and family life in the UK’. An immigration judge allowed the appeal on human rights grounds.
9. Mr H told his employer in March 2018 about his ILR being refused and his employment was terminated, as he no longer had a right to work in the UK. Mr H applied for other jobs while he was appealing the decision to the First Tier Tribunal. When the employers checked with UKVI, Mr H says they were told he did not have the right to work in the UK.
ILR application
12. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and, we have not seen any signs that something has gone wrong.
13. Mr H complains UKVI incorrectly rejected his application for ILR in the UK due to an error he made on his tax return. He says a judge later decided the error was not serious enough to mean his ILR should be rejected, and therefore UKVI’s decision was wrong.
14. Mr H’s ILR applications were refused on the basis of immigration rule 322(5) which states, ‘Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused where the undesirability of permitting the person concerned to remain in the United Kingdom in light of his conduct character or associations or the fact that he represents a threat to national security’.
15. The Home Office Guidance General grounds for refusal states:
‘A person does not need to have been convicted of a criminal offence for this provision to apply. When deciding whether to refuse under this category, the key thing to consider is if there is reliable evidence to support a decision that the person’s behaviour calls into question their character and/or conduct and/or their associations to the extent that it is undesirable to allow them to enter or remain in the UK.
You must:
Give specific reasons to refuse under this paragraph Not include vague generalisations about a person’s character, conduct or associations Only refer to the specific reason you are refusing the application’.
16. The reasons for refusal letter given to Mr H set out that he had either ‘misrepresented his earnings to HMRC in order to reduce his tax liability or provided false information about his earnings to UKVI to obtain leave to remain’.
17. The immigration judge in Mr H’s final appeal stated: ‘I reject the appellant’s explanation. I regard it as absurd. I am satisfied that he knowingly (and therefore dishonestly) filed an incorrect tax return. The issue then is, looking at that dishonesty in the wider context of the appellant’s behaviour, whether Paragraph 322(5) is met.’
18. The immigration judge also stated in their decision, ‘In those circumstances, failing to meet Paragraph 322(5) but meeting the Rule, must be determinative of this appeal for the purposes of Article 8’. The judge then allowed the appeal under Article 8, human rights grounds.
19. Mr H told us because the judge allowed his appeal, it is his view the original decision by UKVI to reject his application was incorrect.
20. The Parliamentary and Health Service Ombudsman’s Principles of Good Administration say an organisation should be:
• Acting in accordance with the law and with regard for the rights of those concerned • Acting in accordance with the public body’s policy and guidance (published or internal) • Taking proper account of established good practice • Taking reasonable decisions, based on all relevant considerations • Stating its criteria for decision making and giving reasons for decisions.
21. It is our view that UKVI followed our principles in its original decision to reject Mr H’s ILR application. This was based on its policies at the time. Its policy stated a person does not need to have been convicted of a criminal offence for Paragraph 322(5) to apply. We do not think UKVI was making a decision about whether Mr H’s actions in submitting an incorrect tax return were lawful. UKVI considered the evidence Mr H submitted in line with its policy regarding ILR applications as set out at above. UKVI also clearly explained the reasons for its decision to Mr H.
22. We recognise there was a change to UKVI’s policies after a decision was made on another case. This did not mean that UKVI’s decision at the time was incorrect or unlawful as Mr H states. We note that Mr H appealed UKVI’s decisions to the relevant tribunal and these were not found to be unlawful. In its final response UKVI explained to Mr H that: ‘If a reasonable decision is made on an application (given the case law and/or Home Office guidance at the time) which is subsequently held not to be sustainable, maladministration will not have been found. This is because the original decision is considered to have been made using due care, judgement and honesty’.
23. We acknowledge Mr H was granted an appeal based on human rights grounds, and we understand why this meant he felt the original decision to refuse his ILR was incorrect and unlawful. UKVI accepted this decision and allowed Mr H’s application to proceed. It is our view this action followed our principles of good administration and does not in itself mean that UKVI’s consideration of his applications in 2016 was wrong. For these reasons we will be taking no further action on this complaint.
1. We have carefully considered Mr H’s complaint about UK Visas and Immigration (UKVI). We have not seen any signs that anything went seriously wrong.
2. We recognise the difficulties Mr H faced when his application for indefinite leave to remain in the UK was refused. We realise this meant he was unable to work and as a result, he found it difficult to provide for his family.