The Home Office has been “too ready to find dishonesty” in the applications of skilled migrants seeking leave to remain in the UK, the court of appeal has ruled.
In a damning verdict evoking the Windrush scandal, the court said that the department’s “general approach” towards allowing people leave to remain in the UK has been “legally flawed” and must change.
At least 300 highly skilled migrants have put under pressure from the Home Office to leave the UK using a terrorism-focused part of immigration law to reject applications on the basis of “discrepancies” in tax returns.
The ‘illegal’ misuse of the policy has seen 87 highly skilled migrants stripped of their British citizenship stripped and hundreds more affected – despite posing no risk to national security.
Families Told They No Longer Belong
The verdict comes after apologies were made for the ‘Windrush Scandal’. Credit: Flickr/Steve Eason
Those affected were mainly families for whom Britain is home, but they were given 14 days to leave and no longer entitled to a visa. Those who appeal are often denied a driving licence, access to free healthcare and face severe limits on their right to work – making it an impossible process for some.
large number[s] of migrants have claimed that in their cases errors which were the result only of carelessness or ignorance have wrongly been treated as dishonest
Lord Justice Underhill
Of the four of these cases were examined by the court, one has been quashed and the remaining three will be put to an immigration tribunal, with the court finding that in one there was “a distinct unlawfulness” in how Secretary of State Sajid Javid handled the case.
The appellants said the errors in their tax records were “innocent” and that the Home Office’s rejection of this “was unlawful”. Javid was told by the court that applicants were not given “opportunity to proffer an innocent explanation” for the discrepancies.
Lord Justice Underhill said that a “large number of migrants have claimed that in their cases errors which were the result only of carelessness or ignorance have wrongly been treated as dishonest,” bringing evocations of the Windrush scandal.
The verdict is the latest in the government’s ‘hostile environment’ policy, with Prime Minister Theresa May and Home Secretary Amber Rudd forced to apologise over deportation threats made by the government to the Windrush generation of legal immigrants.
The Windrush scandal struck a chord with many as it concerned families who had lived in the UK for decades. Today’s ruling also affects those who have lived in the UK for years, some of whom have British-born children.
Parminder Saini, representing Amin Albert – one of the four cases heard by the court – said the verdict will go some way to bringing peace of mind to the victims of the ‘hostile environment’ approach.
“This is a not insignificant defeat on a controversial, much-publicised issue at the heart of the hostile environment,” he said.
“The judgment, in short, confirms that the government’s allegations against migrants in relation to their tax returns amounts to an allegation of deliberate misrepresentation to either the Home Office or HMRC.”
The lack of opportunity given to applicants seeking an appeal was also criticised as unlawful, with the court adding that the verdict will resolve many of the 70 appeals or lodged applications for permission to appeal that are currently on file.
In the future, migrants threatened by the terrorism clause will now have an added safety net where the Secretary of State must justify its use under Article 8 of the European Human Rights Convention where it leads to notices of liability to removal.
The court ordered: “Before making such a decision the Home Office must notify applicants of its concern and give them a fair opportunity to offer an explanation.”
Scottish National party MP Alison Thewliss told the Guardian that the decision goes to show that the British government’s implementation of immigration rules for highly skilled migrants “is not fit for purpose”.
She said: “It’s been clear for some time now that the Home Office made a calculated decision, without forethought for the impact on applicants, to pursue people via this immoral and disreputable application of immigration rules … The Home Office should do the respectable thing and withdraw its objections immediately”.
A Home Office spokesperson said it would “consider the judgment and [its] response carefully.”
He added: “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.”