ILR Application Dilemma - PEO or Post ?

[AML2015]

Hi All

My ILR has been refused today at Solihull PEO (Wife included as well as dependent). Reason for refusal is Deception as per clause 322(2) and 322(5). The reason for rejection is that I filed (not amendments) my self-assessment returns 'retrospectively' (Jan 2016) for the years 2010/2011/2012/2013.

Please view my previous post regarding my self assessment returns discussion with HMRC.

http://www.immigrationboards.com/indefi ... 01405.html

Current leave for T1 expires on 04 March 2016. They have given my option to file for admin review within 14 days. They have retrieved my original documents and only returned our passports and BRP's since we still have valid leave to remain for the next 20 days.

I did submit my 4 years of SA302's (2012/2013/2014/2015) from HMRC, along with a letter from HMRC for my 2010/2011 returns stating that they will not be processing it since its outside the 4 year window and additionally they did not ask the returns to be filed previously in the respective tax year. This due to the income being below the threshold. (Dividends being below £31,865). Also I submitted an accountant letter with my earnings since 2010 and with a statement that there was no tax due for 2010/2011/2012/2013 along with a prinout for all years (2010-2015) from my online SA account from the HMRC website stating a figure of £0.00 as tax liability for all years.

In essence, they rejected my application on the basis that I did not file my SA returns for the respective years in the period when they had to filed as per HMRC time-frames and I filed them retrospectively in Jan 2016. But the returns for 2010-2013 were filed in Jan 2016 which had no tax liability as confirmed by HMRC. 2014 and 2015 were filed on time.

Also, the CW stated that when she checked on her online system (unsure which website/web application HO use) they did find any SA history for me. I was like how about the documents I have submitted with my application which are from HMRC and she went quite. I did ask her which online system or software they use to check an applicant's history with HMRC, but she said she was not allowed to disclose it.

Anyways, seems like they are rejecting applications for self employed people even if they file their SA returns outside the submission window but prior to their ILR application. Its a shame.

Seniors and members, any thoughts on my case ? What should be my next step ?

1. Apply for admin review and send additional docs (since I read I can send additional docs if I have been refused for deception. Is that true ? Who should I send them to ? Any address or then upload them on their link?)
2. Hire a solicitor prior to the admin review ? Or it is not needed since HO will review my application based on the same docs I submitted today? Any thoughts ?
3. What are my options if I fail the admin review. My visa expires on 04 March 2016 and the admin review decision will come in after the expiry date. How long can I stay in the country after I receive the admin review rejection letter.
4. Can I file for JR after the admin review decision ? What is the process?
5. Any recommended solicitors who have dealt with such cases previously ?

Its a pity to be in a situation where you have been a loyal tax payer all these years and then being penalized for not filing an SA for the years where I owed £0 to HMRC. All my SA's were filed and completed in Jan 2016 prior to the application date with all tax paid. The figures declared to HO and HMRC match as per the original submissions and no amendments were required. They still refused it since I did not file them when I had to as per the HMRC guidelines.

I owed NO tax to HMRC for the SA's which were not filed on time for 2010/2011/2012/2013.

Your thoughts and advice is much appreciated.

Thanks

[AML2015]

Additionally, I called up HMRC Self Assessment helpline after I got home today from the PEO and got a very helpful lady who dealt with my query. She did not know the system HO use to check the applicants record with the HMRC database, but she could clearly see my SA history for the years 2010-2015.

She asked me if I wanted her to send a letter to the PEO addressed to the CW along with my application reference number along with my full SA details and history and the no tax liability clause, and I agreed. She would also send me a copy of the same letter in post.

Would this help my case for the admin review ?

Or would the HO still stick to their decision of refusing my application based on 'You did not submit your SA after the end of the respective tax years, and have filed them retrospectively prior to the ILR application date'.

Any thoughts ?

[AML2015]

Guys

My ILR has been refused.

Please see my new post as per the link below,

http://www.immigrationboards.com/indefi ... 03107.html

[noajthan]

Thanks for sharing a detailed and insightful review of your case which should prove helpful & informative to many members on a similar journey.

[AML2015]

Just to correct previous statement, when the CW checked my records on her online system, she did NOT find anything for the last 6 years regarding my SA history. Which is appalling since I had submitted 4 years worth of SA302s which apparently didnt show up on her system. What a blatant lie,where it shows on the HMRC system and also on my HMRC profile but not on the HO system.Is this even possible?

[martinstroke]

Hello AML2015,

So sorry to hear about your refusal, Hope things work well for you and I will be very grateful if you can please help with this question. From your previous very first post, you said you were refused for filing retrospectively, and in your last post before my question as a correction to your earlier statement, you said that the CW refused you because she could find no traces of your SA for the last 6 years.

Please can you very which of the above is correct or is it a case of both.

Thanks

[HarryJones]

This is an unfortunate situation. I pray that the AR /JR will favour you.
Briefly, could you try to clarify the following:

You said your income was below threshold
You also said that no tax due for all years....
You also said somewhere that you paid all tax.

Please try and explain the following.

[wasi36]

This refusal is different from those who underpay tax, or amend afterwards. All tax returns were filed in Jan 2016 and if these tax returns were filed on time even no tax was paid and then amended in 2016 result was gonna be different.
Correct me if i am wrong?

[HarryJones]

@wasi36
You cannot be too sure of your statement.
It is all left for the discretion /Judgement of the CWs.

[PSCILR]

@AML2015

Didn't HMRC send you any calculations for 2011?

Did you filled any form earnings related when you went on PEO?

How did CW know that you filed the SA in Jan 2016? Did you tell him.


Regards

[noajthan]

Kindly note this is not a tax forum & there are no tax consultants here.
For tax advice suggest find a tax forum.

Members are also reminded of Board T&Cs

If this topic strays from the path of immigration-related matters it will be closed down.

[shaba ranks]

With Respect Guys, I've seen similar Comments saying, "This is not a Tax Forum" which I understand it isn't. But why then all these things are happening from the UKVI relating to TAX. My understanding is -- if all these Tax related with Immigration Matters go on to a Court of Appeal --- would it be going to a court related to TAX matter or would it go to a the AIT (Asylum & Immigration Tribunal)? If it goes before a Judge at the AIT then in my opinion these sort of Discussion could very much possible on this forum-- this is entirely my personal opinion.
Understandably, if the discussion was to go in to details of TAX calculations & similar things then I would also suggest to discuss them on a TAX related forum but when it's simple matter related to TAX paid or not, or the IMMIGRATION matter related purely on TAX then I don't see any reason as to why members won't be able share their experiences & discuss it here for other members "BENEFIT"- if that's the whole purpose of the Forum. Please accept my apology if I broke any sort of rules of the forum and thus offended anybody's feeling either--- I just wanted to express my honest opinion after reading all those posts related which I guess we all should express freely since we don't live in STALIN's Russia!!! Once again, sorry about that guys.....

[jimtoole]

I totally Agree. After reading http://www.immigrationboards.com/indefi ... 03158.html Tomtoms post I wanna say that HO is already splitting families, Sending people whr they dont belong to anymore, we shall have some compassion. Do not discuss how much tax u should pay etc but atleast let people discuss their immigration issues related to tax. I request moderators to have compassion, I have been here 10 years and many like me that have been denied residence coz of some tax issues we are ready to resolve. I personally would not only let Tomtoms discuss here but help him financially as no one deserves to go back to where they dont belong any more.

With Respect Guys, I've seen similar Comments saying, "This is not a Tax Forum" which I understand it isn't. But why then all these things are happening from the UKVI relating to TAX. My understanding is -- if all these Tax related with Immigration Matters go on to a Court of Appeal --- would it be going to a court related to TAX matter or would it go to a the AIT (Asylum & Immigration Tribunal)? If it goes before a Judge at the AIT then in my opinion these sort of Discussion could very much possible on this forum-- this is entirely my personal opinion.
Understandably, if the discussion was to go in to details of TAX calculations & similar things then I would also suggest to discuss them on a TAX related forum but when it's simple matter related to TAX paid or not, or the IMMIGRATION matter related purely on TAX then I don't see any reason as to why members won't be able share their experiences & discuss it here for other members "BENEFIT"- if that's the whole purpose of the Forum. Please accept my apology if I broke any sort of rules of the forum and thus offended anybody's feeling either--- I just wanted to express my honest opinion after reading all those posts related which I guess we all should express freely since we don't live in STALIN's Russia!!! Once again, sorry about that guys.....

[noajthan]

With Respect Guys, I've seen similar Comments saying, "This is not a Tax Forum" which I understand it isn't. But why then all these things are happening from the UKVI relating to TAX. My understanding is -- if all these Tax related with Immigration Matters go on to a Court of Appeal --- would it be going to a court related to TAX matter or would it go to a the AIT (Asylum & Immigration Tribunal)? If it goes before a Judge at the AIT then in my opinion these sort of Discussion could very much possible on this forum-- this is entirely my personal opinion.
Understandably, if the discussion was to go in to details of TAX calculations & similar things then I would also suggest to discuss them on a TAX related forum but when it's simple matter related to TAX paid or not, or the IMMIGRATION matter related purely on TAX then I don't see any reason as to why members won't be able share their experiences & discuss it here for other members "BENEFIT"- if that's the whole purpose of the Forum. Please accept my apology if I broke any sort of rules of the forum and thus offended anybody's feeling either--- I just wanted to express my honest opinion after reading all those posts related which I guess we all should express freely since we don't live in STALIN's Russia!!! Once again, sorry about that guys.....

You are ofcourse quite welcome to express such an opinion, whether or not I (or anyone else) agrees with it.
And immigration matters may ofcourse be discussed.

However, it's still very simple: this is not a tax forum.
And the Board T&Cs are very clear.

Despite this threads can & do stray into inappropriate areas. It happens frequently and repeatedly.
When they do, this Board does not exist to help dig people out of the holes they have dug themselves into.

As to why the UKVI is cracking down more heavily on tax issues (or Tier 1 visa holders or ILR applicants) is not for me to comment. I do not know.
I doubt many here are privy to the inner workings of Home Office and other government departments.
However the prevailing political (& geopolitical) climate around immigration & migrants is plain for all to see.

The fact that there may be initiatives underway, (that are now catching increasing numbers of Tier 1 & ILR applicants unawares & unprepared), does not mean the board has to entertain what is, in many cases, their self-inflicted plight.

Discussion of immigration &/or travel &/or naturalisation-related issues is fine.

However, members soliciting advice or swapping experiences that may lead to breaches of immigration law &/or tax law due to deception, 'creative accounting' (or by any other means) can not & will not be tolerated.

Too many members appear to have come unstuck recently due (by their own admission) to their indulgence in dodgy (if not criminal) tax & other business practices.

Too many members have (by their own admission) displayed poor judgement in their choice of (what are usually described as) "incompetent" tax/financial/legal advisors &/or accountants.

These members (&, unfortunately, their families) then suffer the consequences of their own actions for which they are ultimately (& legally) responsible.

Regarding tax, members are urged to "Render unto Caesar the things that are Caesar's".

As to immigration matters, the Gov UK website is quite comprehensive & rule changes are (usually) brought in along with transitional measures.

The secret is to keep abreast of prevailing rules and regulations and to undertake regular audit checks of one's compliance with the requirements necessary to reach the next rung (or two) of the migration ladder.
This is what the Board is for & helps with day in, day out, 24*7.

[shaba ranks]

Agreed on everything you said Sir. I just wish the Government (UKVI & HMRC who're also a part of) would have taken the same/similar approaches towards GOOGLE, FACEBOOK, STARBUCKS, AMAZON & so on & on & on and thus justice would been served to these poor people suffering now by their mistakes or practical circumstances. As it stands, we should all be 'LAW ABIDING CITIZEN/RESIDENCE" anyway. So, once again I couldn't agree more on what you mentioned...

[AML2015]

Apologies for the late replies guys, been busy on the phone with a few solicitors. Please see my answers below,

@martinstroke - The refusal is on the basis that I filed my returns for 2010/11/12/13 retrospectively. Even though I do not have any tax liability for those years/returns (my HMRC online account shows £0.00 for all these years), they said that you did not file them in the respective tax year, and have filed them now just before you applied for a visa. The CW verbally told me that she cannot find any income details for me in her system. She did not disclose the software or system details she was referring to, but she had no respect for the SA302's, Employment history letter (2010-2015) and NI record letters from HMRC.

It was like I was talking to someone who was 'STONED' and she ws jsut replying in monosyllables.

Even after filing in Jan 2016, HMRC processed the 2012/13 returns and sent me SA302's (along with 2014/2015 for which the returns were submitted on time since in July 2013 my dividend income went above £31865 which is the dividend tax credit limit and HMRC sent me a letter to start filing SA). HMRC also sent me a letter to say that they have received my 2010/2011 returns and wont be processing them since they did not ask me to submit the returns in the first place in the respective tax year. HMRC have also stated a clause of 'SECTION 8/8A TMA 1970' which is a 'WITHDRAWING A NOTICE TO FILE AN SA' which clearly states that HMRC have withdrawn the requirement to file an SA for 2010/2011 for myself. I submitted the letter as well, but looks like the CW had no clue what the letter meant.

I did explain to the CW that as per my accountants advise they were not to be filed since there was no tax liability, but in Jan 2016 (30 days prior to my PEO application date) and asked them to file them anyways just to ensure that I have done what I was needed to do even though HMRC didnt request it in the first place.

But looks like my 'HONESTY' was not appreciated by the HO and have been charged with deception. How I wish that the staff they employ at HO are competent enough to judge applications on their merit rather than follow a tick box exercise and reject applications if they dont understand what the actual contextual scenario of the applicant.

[AML2015]

@HarryJones

You said your income was below threshold - Yes for 2010/2011/2012/2013 - Tax to pay was £0.00. Hence accountant advised that there is no need for SA. In July 2013 my income went above the threshold (dividend limit is £31865) so got a letter from HMRC to file an SA. So SA for 2014 and 2015 was filed on time. Then in December last year I was reading through the forum and read about the rejections based on SA. So asked my accountant to file for 2010/11/12/13 in Jan 2016. Which were filed and processed by HMRC and also sent me SA302 for 12/13 and for 10/11 sent me letter saying they wont be processing it since its outside the 4 year window and additionally they never asked me to file in the first place in the respective tax year (10/11). But luckily they have updated my online account on the HMRC website for 10/11/12/13/14/15 which has £0.00 in the 'tax due' columns which I printed and submitted, but still got refused.

You also said that no tax due for all years.... - Yes correct. No tax due for 2010/11/12/13/15. For 2014 I had tax to pay since I took extra dividends and had paid them as soon as my SA was done in Jan 2015.

You also said somewhere that you paid all tax. - I have £0.00 tax liability for SA,Corporation Tax, PAYE and VAT. All tax has been paid on time when it was due.

They refused my application saying that you have filed your 2010/11/12/13 returns outside the submission window and this means that you did not declare the income to HMRC in 2011 (T1 initial) and 2013 (T1 extension) when you had to do so, and declared it just before the ILR application (30 days before) and this could be that you had intentions to reduce the tax liability at the time and now might be correcting it.

I had a big open mouth when she said all this to me, and she had no answers to any of my questions.

I also asked her if I could speak to the senior CW and she said that its not possible. She was clueless about tax laws and how HMRC works.

[f317633]

@HarryJones

You said your income was below threshold - Yes for 2010/2011/2012/2013 - Tax to pay was £0.00. Hence accountant advised that there is no need for SA. In July 2013 my income went above the threshold (dividend limit is £31865) so got a letter from HMRC to file an SA. So SA for 2014 and 2015 was filed on time. Then in December last year I was reading through the forum and read about the rejections based on SA. So asked my accountant to file for 2010/11/12/13 in Jan 2016. Which were filed and processed by HMRC and also sent me SA302 for 12/13 and for 10/11 sent me letter saying they wont be processing it since its outside the 4 year window and additionally they never asked me to file in the first place in the respective tax year (10/11). But luckily they have updated my online account on the HMRC website for 10/11/12/13/14/15 which has £0.00 in the 'tax due' columns which I printed and submitted, but still got refused.

You also said that no tax due for all years.... - Yes correct. No tax due for 2010/11/12/13/15. For 2014 I had tax to pay since I took extra dividends and had paid them as soon as my SA was done in Jan 2015.

You also said somewhere that you paid all tax. - I have £0.00 tax liability for SA,Corporation Tax, PAYE and VAT. All tax has been paid on time when it was due.

They refused my application saying that you have filed your 2010/11/12/13 returns outside the submission window and this means that you did not declare the income to HMRC in 2011 (T1 initial) and 2013 (T1 extension) when you had to do so, and declared it just before the ILR application (30 days before) and this could be that you had intentions to reduce the tax liability at the time and now might be correcting it.

I had a big open mouth when she said all this to me, and she had no answers to any of my questions.

I also asked her if I could speak to the senior CW and she said that its not possible. She was clueless about tax laws and how HMRC works.

It's so unfortunate to be denied the ILR. I pray that you succeed in getting your ILR and what you to fight till the end. I am always sceptical about trying to be too honest with HO as it might sometime backfire and HO cw who are just at a clerical level will ever understand this. I had spoken to several advisors and they clearly advised that if there is any red flag I will not highlight it unless it is 100% required and will add weight to the application.

What is your next course of action? Are you going for AR or applying fresh?

[noajthan]

...

I am always sceptical about trying to be too honest with HO as it might sometime backfire and HO cw who are just at a clerical level will ever understand this. I had spoken to several advisors and they clearly advised that if there is any red flag I will not highlight it unless it is 100% required and will add weight to the application.

Extract from latest SET(O) form, applicant's Declaration:

I am aware that it is an offence under the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002, to make to a person acting in execution of any of those Acts a statement or representation which I know to be false or do not believe to be true, or to obtain or to seek to obtain leave to remain in the United Kingdom by means which include deception

& from representative's section, representative's Declaration:

I confirm that the applicant has completed and verified the application and the application is, to the best of my knowledge and belief, true and correct.

I am aware that it is an offence under the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002, to do an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union, knowing or having reasonable cause to believe that the act has this effect

[AML2015]

@wasi36

The figures declared on my tax returns for 2011 and 2013 are the same as declared to HO for intial T1 (2011) and extension (2013). Even if I have filed them in the respective tax years the tax liability would still be £0.

There has been no loss of revenue to HMRC for late filing of 2011 and 2013 SA returns. They did not even charge me a penalty for the late filings in the letter they sent to me.

The reason for rejection is that I filed them late (and they have been processed before my PEO appointment) and I bought this time to deceive the HO and hence the late filing.

[AML2015]

@PSCILR

Didn't HMRC send you any calculations for 2011? - HMRC didnt process my returns for 2010 and 2011 since they were outside the 4 year submission window. They however said in their letter that they will not process them since they did not ask me to file them in the first place. In light of this statement it means that they did not ask me to submit SA in 2010 and 2011 since my income was below the threshold. In 2014 they sent me a letter to start filing SA since my dividend income went above the threshold (£31865). Hence the subsequent years the SA were filed in time.

Did you filled any form earnings related when you went on PEO? - They gave me a Self-Assessment form to fill in prior to the submission of the documents, where I clearly explained my case.

How did CW know that you filed the SA in Jan 2016? Did you tell him. - Yes it was mentioned in my covering letter. The reason I did this was because I didnt submit my SA302 for 2011 because I didnt have it. To make sure they dont refuse for deception I included a covering letter to explain my situation and £0 tax liability for all 6 years. But unfortunately it didnt work in my favour.

[Casa]

Without entering into a discussion about tax discrepancies, members should be aware that only applications which are 100% straightforward should be submitted in person at a PSC. The PSC Case Workers are of a junior level and simply don't have the authority (or the knowledge) to process any application with requires further verification. The application will either be rejected on the day, or if fortunate it will be passed to senior level Case Workers for further checks and will join the postal queue at the premium fee.

[AML2015]

@F317633 - I will be applying for an admin review. Then if needed go for a pre-action protocol and then finally a JR. Wont let them go so easily.

@Casa - The lady who handed me in the decision said she discussed my case with the senior CW and then they concluded the rejection. So I am really not sure if even the senior CW's have the knowledge of things work with HMRC.

They blatantly refused to believe the HMRC returns and letters which I submitted with my application, and she was adamant on relying on her system (not sure what they use whether its a web application/ bespoke HO-HMRC windows based application) and said she did not find any employment history for me for the last 6 years. I then asked her how about the HMRC documents I had submitted with my application, and she said that they are secondary and they rely on their system. Who in their right state of mind would believe that ? Would you Casa ?

Anyways, the CW's at all PEO's need some serious immigration and tax related training and consequently have a HOTLINE DIRECT TO HMRC where they can speak to a person and confirm an applicants tax details, rather than rely on a piece of software/application which works crap.

Apologies for the outburst, but this response from the CW is unacceptable. Why do they ask us to submit papers/documents from other government organisations when they consider them as 'SECONDARY' and want to just rely on a system/software which doesnt seem to work or give them the right data.

I called up HMRC as soon as I got home, and they could see all my details along with the income figures and tax payments for all 6 years. So how about HO going for a revised IT consultant who could actually fix their system.

Sorry moderators, but I have been disgusted with the refusal after being an honest tax payer since I started working and then I was knighted by the HO as a being 'DECEITFUL'. Apologies once again.

[f317633]

@F317633 - I will be applying for an admin review. Then if needed go for a pre-action protocol and then finally a JR. Wont let them go so easily.

@Casa - The lady who handed me in the decision said she discussed my case with the senior CW and then they concluded the rejection. So I am really not sure if even the senior CW's have the knowledge of things work with HMRC.

They blatantly refused to believe the HMRC returns and letters which I submitted with my application, and she was adamant on relying on her system (not sure what they use whether its a web application/ bespoke HO-HMRC windows based application) and said she did not find any employment history for me for the last 6 years. I then asked her how about the HMRC documents I had submitted with my application, and she said that they are secondary and they rely on their system. Who in their right state of mind would believe that ? Would you Casa ?

Anyways, the CW's at all PEO's need some serious immigration and tax related training and consequently have a HOTLINE DIRECT TO HMRC where they can speak to a person and confirm an applicants tax details, rather than rely on a piece of software/application which works crap.

Apologies for the outburst, but this response from the CW is unacceptable. Why do they ask us to submit papers/documents from other government organisations when they consider them as 'SECONDARY' and want to just rely on a system/software which doesnt seem to work or give them the right data.

I called up HMRC as soon as I got home, and they could see all my details along with the income figures and tax payments for all 6 years. So how about HO going for a revised IT consultant who could actually fix their system.

Sorry moderators, but I have been disgusted with the refusal after being an honest tax payer since I started working and then I was knighted by the HO as a being 'DECEITFUL'. Apologies once again.

I wish you succeed in getting your ILR. Which solicitor u r engaging with just now. Can u pm me the details?

[wasi36]

If case worker can't fond record of NI. That means you filed SAs but problem hmrc is that they have two different department and i think you need to contact hmrc on 03002003500 to pay NI contribution which is £32.50 per quarter. From 2016 they have included this amount to your final returns but before that it was separate. You have to pay ni contribution even if you hqve no tax due