Tier 1 (General) Migrants came to the UK, relying on points under the ‘points-based system’. On extension of leave within the UK, it was common for applicants to rely on a combination of employment and self-employment earnings. Unfortunately, there were instances of misreporting to HMRC or misreporting to the Home Office. Often, it’s apparent that these errors are genuine errors by person’s unfamiliar with HMRC reporting requirements, but equally, some applicants were genuinely involved in an effort to defraud the system. The Home Office allegation would usually be that the Applicant has lied either to the Home Office or to HMRC.
The Home Office began to habitually check records HMRC records for all applicants for indefinite leave to remain against their Home Office records; there were considerable discrepancies for many applicants. Unfortunately, many of these errors were errors in HMRC records or errors that had been corrected by Applicant’s, or accountants of applicants who had made errors.
Notably, in one case, an Applicant was refused on two separate occasions due to problems with HMRC when it became apparent that he had been defrauded by his accountant and the correct tax was not paid to HMRC, despite the Applicant showing that he had made to his accountant.
Refusals on suspicion
The Home Office has continued to refuse cases on ‘character, conduct and associations’ under 322(5) Immigration Rules. A recent challenge in the case of Balajigari  EWCA Civ 673 found that decision-makers at the Home Office were behaving improperly by failing to give Applicant’s the ability to explain themselves and give reasons why there may be discrepancies in figures. The judges held that if the Home Office suspects dishonesty or other poor conduct on the part of the Applicant, then there must be procedural fairness. The Home Office must make clear that there is a suspicion on the part of the Home Office and that the Applicant is given a chance to respond.
Subsequently, cases that have the same issues, i.e. cases were refused because of discrepancies, are being reviewed by the Home Office. Unfortunately, these cases are only being reviewed, they are not granting leave, but taking into account explanations which might be proffered by the Applicant. If you are in this situation, you should take advice on your situation without delay. If you are representing an applicant whose case is in the Balajigari cohort of cases, then you will need full records from HMRC and from the Home Office records. You will then need to take a full statement from the Applicant and to present the evidence to the Home Office. These are cases where a discrepancy has already been identified between the two sets of figures, but the explanation needs presenting to the Home Office. In some cases, it is worth instructing an independent accountant to review the paperwork with a view to working out what has occurred.
Contacting an accountant
Unfortunately, as an OISC caseworker, or immigration practitioner, you do not have experience of being a forensic accountant, even if it feels like it is necessary to become one at times! What is important is that an evidence table is made noting all the contradictory evidence. If the Applicant had an accountant at the time of the submission, they would often be able to provide details of correspondence detailing errors that may have occurred. If errors have occurred on the accountant side, rather than the applicant side, then it may be possible to obtain a confirmation from the accountant that the Applicant was not at fault.
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