Section 322(5) of the Immigration Rules

Paragraph 322(5) of the Immigration Rules is one of the “general grounds for refusal”. It states that applications for leave to remain should normally be refused where it would be undesirable for a person to remain in the UK in light of their conduct, character or associations.

UK Visas and Immigration (UKVI)’s use of paragraph 322(5) to refuse immigration applications has been criticised over the past few months. There have been many reports of applications falling for refusal because of discrepancies between the income declared to UKVI and information provided to HMRC. In some cases, this appears to be due to applicants (or their representatives) having committed minor errors on their tax returns, which were subsequently corrected without incurring any penalty from HMRC. Other examples have included cases when there have been logical explanations for the differences, such as the incomes relating to different earning periods. The probem appears to be particularly affecting people who entered the UK under the Tier 1 (General) visa category (which catered for “highly skilled” migrants).

The Government has said that it is not policy to refuse applications solely due to minor tax errors, and that applicants are given an opportunity to explain any discrepancies. It has confirmed that applications have been refused where there are “substantial differences” between the earnings claimed in support of an immigration application and in the applicant’s HMRC records.

Further to recent media and Parliamentary scrutiny, the Minister for Immigration has been reviewing the use of paragraph 322(5) to refuse Tier 1(General) applications on tax discrepancy grounds. The review was due to be completed by the end of May and the Home Affairs Committee is due to receive an update further to that. Consideration of all related applications has been put on hold pending the outcome of the review.