Tax Amendment and Paragraph322 And 322.5

[akinsman]

It is unfortunate that many are falling victims of the paragraph 322 and 322.5 which is due to carelessness on their part. I have read on this forum as well as a few people I have spoken to about their efforts to amend their tax in other to argue a case against the HO. From the research effort undertaken on my own, this effort may not convince the Immigration Tribunal in the event of a hearing.
From some of the cases (case law) reviewed, not even one succeeded in arguing a case against HO. Common to all these cases is the fact that HO succeeded to establish that indeed a case of deceit did take place, and the judges were not swayed by the claim provided by the applicants that they did not know they were supposed to pay tax, or that the accountant who was supposed to pay the tax on their behalf did not do so. Also, there was a claim that since they have now amended the tax HO needed to consider their applications and grant it.
One of such case is IA/04731/2014. The case was published on government dedicated website,Tribunalsdecisions.Service.Gov.Uk/Utiac/Ia-04731-2014. The argument provided by the Respondent in this case was similar to some of the ones I have read on this forum and from those I spoke with. However, the argument was not sufficient enough to determine the outcome of the hearing in his favour.
What this means is that HO has a sweeping powers to reject application for ILR where tax on earnings declared to her did not correspond with the self-assessment filed with HMRC even if this happened few years ago. However, for purpose of argument and from my own findings, it is not actually hopeless depending on the weight of the argument presented by the victims.
It is important to note that, HMRC is the only statutory body that deals with tax matters and not HO. The argument goes further that HMRC has a policy that enables tax not paid or declared four years back can still be filed and no penalty or fine can be imposed. For more information on this please read ''If You Haven't Told HMRC About Income'' (https://www.gov.uk/undeclared-income).
Again take this argument further, your case may be that of negligence and not deliberate attempt to evade tax and once you realised that, you made effort to correct the mistake and file self- assessment return. Please read (Income Tax: Fraud Vs. Negligence. Find law online publication http://tax.findlaw.com/tax-problems-aud ... gence.html).
With this scenario, a ground of procedural impropriety can actually be argued and it is left to the Judge to consider the weight of your argument. Somebody may want to ask, why procedural impropriety against HO? Procedure leading to the rejection may be flawed in some points. First, you were not invited to any interview to explain why the tax was not paid even though you may have valid reason for not doing so at the time. This is a breach of HO policy of Evidential Flexibility. Second, there has not been any conviction of crime that portrays you as a threat to the society (paragrapgh 322.5).
If the HMRC policy says you can still file undeclared income four years earlier and does not mean commission of crime, therefore HO cannot consider you a threat to society or use paragraph322 to refuse your application for what is not crime at the time of taking her decision as this will amount to retrospective justice. There are over 5 points (grounds) to argue this case. However, success will depend on robust argument and research you or your solicitors are able to come up with.
Also, if a victim has a family in the UK with at least a child born in the country, this is a straight fight to win. Of over 10 cases reviewed where ECHR8 was argued by applicants at the hearing, not even one lost his or her case. If you are interested read (Nigeria v Secretary of State for Home Department. Nigeria [2014] UKUT 00517 (IAC) THE IMMIGRATION). This case provides a major achievement for right to family life to be successfully argued.
I will copy paragraph one of the judge decision . ‘’THE DUTY IMPOSED BY SECTION 55 OF THE BORDERS CITIZENSHIP AND IMMIGRATION ACT 2009 REQUIRES THE DECISION-MAKER TO BE PROPERLY INFORMED OF THE POSITION OF A CHILD AFFECTED BY THE DISCHARGE OF AN IMMIGRATION ETC FUNCTION. THUS EQUIPPED, THE DECISION MAKER MUST CONDUCT A CAREFUL EXAMINATION OF ALL RELEVANT INFORMATION AND FACTORS.
In taking this decision the judge was informed by section 55 of immigration Act 2009. Also, HO advices her caseworkers to always consider section 55 where children are involved and this can be found under the topic General Ground for Refusal. However, the use of Section 8 of ECHR is now being threatened with the coming referendum as it will no longer be valid to hide under it anymore if the LEAVE camp wins.
So you may want to consider that instead of the more complex argument presented above. There are many academic materials, case laws and online publications you can refer to. They are online and not the work of a snake oil salesman or strategy of somebody who has been accused of using the board for either marketing strategy or to defraud unsuspecting members. So start reading.

[jarraj1102]

Hi akinsman,

Many thanks for a well researched post and taking your time to write the present scenario for applicants with tax issues. I have some question regarding the current refusals due to tax amendment. Can you kindly answer them

1. What would be the case if the amendments are done before the submission of ILR application?
2. Does the HO's argument of deception still hold good if the amendments are accepted by HMRC before submission?
3. From the people you have spoken to and from your research. If Tax paid on required threshold before the amendment and since then back taxes paid to match figures with HO and HMRC , would this too come under deception.Can this be argued successfully.

Regards

Raj

[wahabishtiaq]

I believe there a case to answer ....

[akinsman]

Hello jarraji 102
Thanks for the questions you asked. I will try to present two arguments here both for HO and for the applicant. In the Guidance Note for extension of leave to remain (2015) the requirement for evidence of tax payment was required to be fulfilled by applicant. Below is Paragraph 113 page 24 of the Guidance Note.
Appendix A Paragraph 19( F) (III) ‘’a document produced by a person, business, or company as an official return to a tax authority, SHOWING DETAILS OF EARNINGS ON WHICH TAX HAS BEEN PAID OR WILL BE PAID IN A TAX YEAR. The document must have been approved, registered, or stamped by the tax authority.’’ This was not available to the Claimant for his self- employment tax 2014-2015 at the time of submission of his application. (Emphasis mine)
You will see that the above words in capital letters says that you were expected to have paid the tax or you were going to pay the tax for the income you have declared in a tax year . However, you did not pay the tax after the end of tax year and neither did you submit tax assessment to HMRC for the same income you have declared to HO. This is a deceit as far as HO is concerned. Take it further, there is a variation in the income you have declared to HO and what you declared to HMRC. This is a further deceit and on all counts you are guilty by HO standard. Therefore amending the tax now few years after the earnings were declared does not amount to satisfying the requirement above. In my country, we call it medicine after death. Below is the instruction contained in the HO guidance for case workers on General Ground for Refusal.

‘’When an applicant has used deception either in their current or previous application, for
example, made a false representation, submitted false documents or information or NOT
DISCLOSED MATERIAL FACTS, you:
. must refuse their application under paragraph 322(1A), when deception has been used
in a current application
. should refuse their application under paragraph 322(2),when deception was used in a
previous application
. should refuse their application under paragraph 322(2A), when deception was used in
a current or previous application to get a document from the Secretary of State that
shows the applicant has a right to reside in the UK
You should refuse leave to remain for these reasons, where there is satisfactory evidence to
show that the applicant or their appointed representative has deliberately provided
representations or documents which they know to be false. You should also refuse leave to
remain if a previous use of deception was unsuccessful. The successful and unsuccessful
use of deception are equally serious in the Immigration Rules.
Before you refuse leave to remain under paragraph 322(1A), 322(2) or 322(2A), you must
first refer your decision to your senior caseworker.

Standard of evidence
To refuse under paragraph 322(1A), 322(2) or 322(2A), you must have positive evidence to prove that the applicant has lied or submitted a false document. The burden of proof is balance of probabilities’, which means it is more likely than not that the applicant has made false representations or given forged documents to get leave’’. (Emphasis mine)
This is the ‘’death penalty’’ for which many who did not disclose the material fact mentioned above (income to HMRC) have now been sentenced. So amending your tax now will mean you are guilty of deception under paragraph 322(2) mentioned above. ‘’SHOULD REFUSE THEIR APPLICATION UNDER PARAGRAPH 322(2), WHEN DECEPTION WAS USED IN A PREVIOUS APPLICATION ‘’ This is uncontentious.
So, referring to the first question, lets us say you are the immigration judge in a case of paragraph 322.2 and I am the HO representative and I have argued my case above. Would you believe that indeed HO has proved her case that deceit did take place or not? If your answer is NO then please prove me wrong.
Going to question 2, we are now going to reverse the situation above and so I am arguing for the applicant and this is my position. Government agencies are set up by statute that defines the responsibility and functions they are to carry out. Accordingly ‘’It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication.
For decision makers this means that a public body must make a decision that lies within the requirements of its governing legislation. Equally, if they have a duty to perform in determining some question or other, they must not shirk their duty. Doing otherwise would be to render their decision ultra vires and so void’’. (Please read more at: http://www.fieldfisher.com/publications ... nsultation. Online publication)
This effectively provides justification to challenge HO. In the previous post, I mentioned that it is only HMRC that is the statutory body established to oversee tax matters in the UK and not HO. So this statutory body says it has a policy whereby undeclared income four years back can still be filed and the appropriate amount of tax paid. (See the first post’’ If You Haven't Told HMRC About Income'' (https://www.gov.uk/undeclared-income) Therefore, any decision taken by a different government body that negates this position of HMRC is ultra vires and invalid.
The argument begins thus, for some certain reasons, an applicant did not inform HMRC of his income (see the first post Income Tax: Fraud Vs. Negligence. Findlaw online publication http://tax.findlaw.com/tax-problems-aud ... gence.html) and after discussing with HMRC, he was told to file self-assessment for the income not declared which he did and it was accepted by the statutory body established to oversee tax matters. The tax is now going to be paid or even been paid and proof of payment available for verification. If HMRC is not prosecuting the applicant for tax fraud or evasion neither deceit, why should another government body base her own decision on issues that have been sorted with the only organisation established for that purpose?
Therefore the ‘’The balance of probabilities’’ (this is HO policy regarding steps to be taken before application is refused. See the last paragraph from the quote on Ground for Refusal under the heading ‘Standard of Evidence’’) dictates that it is more likely than not that the applicant has made false representations or given forged documents to get leave’.
Whether this argument will be won or lost will depend on ‘’Burden of Probabilities’’ which means you must be able to come up with convincing reasons to show that it was not a deliberate effort not to disclose the income to HMRC. Again, there may be a variation in the amount of income shown to HO and what you actually declared to HMRC and may not actually mean deceit, it is very possible. From accountant and tax advisors spoken to, it is a reality.
But for purpose of argument, if HO discovers this ‘’discrepancies’’, were you given the opportunity to clarify the missing information regarding why the income shown to HO was different from the final income declared to HMRC? If the answer is no, it is a breach of ‘’Evidential Flexibility’’ which states that
‘’While we are confident [that the Points Based System] is accessible and understandable, we also recognise that there will always be potential for human error. UK Border Agency Case Workers employ a measure of flexibility when considering PBS applications. For example, case workers operate a system which allows them to contact applicants to request further documentation or clarification where appropriate. In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection.” (UKBA Policy letter of 19 May)
In Secretary of State for the Home Department v Rodriguez [2014] Justice McCloskey responded to a similar situation and concluded at paragraph 11(iv)that ‘’ A simple letter of enquiry/request from the Respondent to the Appellant would have elicited the further information required to demonstrate the Appellant’s ability to score full points . (Rodrigues v Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2)
More information on this is possible but cannot be discussed on public forum for fear of jeopardising the chances of Applicants but the argument is worth considering. Once again, you are the judge now. What will be your decision? If your answer is negative, then convince me
The third question does not need any elaboration. Deceit discovered in any stage of your application ultimately makes the application invalid and therefore, it is not whether tax has been paid on the threshold or not. By the way, how do you convince the judge that you have paid tax on the threshold and what about the amount that was left? Are you saying you just added that to the threshold to fool HO? THAT IS DECEIT.

[monty87]

@ akinsman

Thanks for the above in depth explanation. - it is very useful. In view of IA/04731/2014 case hearing, I think it was deliberate attempt as he has not declared his self-employment income at all which does ring bells. It is very unlikely your accountant will forget to include one source of earnings unless you tell them not to!

Also, at the hearing he has not satisfied the judge if appellant has done anything satisfactory to discharge dishonesty charges by Home Office apart from accountant letter. Appellant has maintained that 'he was not in any way responsible for incorrect tax return' which contradicts with Home Office guideline on self-employment Appendix A Paragraph 19( F) (III) ‘’a document produced by a person, business, or company as an official return to a tax authority, SHOWING DETAILS OF EARNINGS ON WHICH TAX HAS BEEN PAID OR WILL BE PAID IN A TAX YEAR. The document must have been approved, registered, or stamped by the tax authority. Home Office expects YOU to take care of your tax matters beforehand.

[masterpeas]

Thank you ever so much for sharing such good insights into this challenging issue faced by many applicants like myself.

I am very pleased to read a slight hope from you quotation of section 55 as I am now expecting a baby in 2 months and my application from T1G to ILR has been held after peo at Solihull a week ago. Very stressful time for me & family before baby on board soon!

My question is if I should send recently filed tax return and submission confirmation to the CW with a personal cover letter covering a few grounds including successful case law & section 55 to convince them before they reach a decision with 322???

Appreciate your thoughts! When would I need a solicitor to represent me in my case please? After AR?

Bless you! Best regards

It is unfortunate that many are falling victims of the paragraph 322 and 322.5 which is due to carelessness on their part. I have read on this forum as well as a few people I have spoken to about their efforts to amend their tax in other to argue a case against the HO. From the research effort undertaken on my own, this effort may not convince the Immigration Tribunal in the event of a hearing.
From some of the cases (case law) reviewed, not even one succeeded in arguing a case against HO. Common to all these cases is the fact that HO succeeded to establish that indeed a case of deceit did take place, and the judges were not swayed by the claim provided by the applicants that they did not know they were supposed to pay tax, or that the accountant who was supposed to pay the tax on their behalf did not do so. Also, there was a claim that since they have now amended the tax HO needed to consider their applications and grant it.
One of such case is IA/04731/2014. The case was published on government dedicated website,Tribunalsdecisions.Service.Gov.Uk/Utiac/Ia-04731-2014. The argument provided by the Respondent in this case was similar to some of the ones I have read on this forum and from those I spoke with. However, the argument was not sufficient enough to determine the outcome of the hearing in his favour.
What this means is that HO has a sweeping powers to reject application for ILR where tax on earnings declared to her did not correspond with the self-assessment filed with HMRC even if this happened few years ago. However, for purpose of argument and from my own findings, it is not actually hopeless depending on the weight of the argument presented by the victims.
It is important to note that, HMRC is the only statutory body that deals with tax matters and not HO. The argument goes further that HMRC has a policy that enables tax not paid or declared four years back can still be filed and no penalty or fine can be imposed. For more information on this please read ''If You Haven't Told HMRC About Income'' (https://www.gov.uk/undeclared-income).
Again take this argument further, your case may be that of negligence and not deliberate attempt to evade tax and once you realised that, you made effort to correct the mistake and file self- assessment return. Please read (Income Tax: Fraud Vs. Negligence. Find law online publication http://tax.findlaw.com/tax-problems-aud ... gence.html).
With this scenario, a ground of procedural impropriety can actually be argued and it is left to the Judge to consider the weight of your argument. Somebody may want to ask, why procedural impropriety against HO? Procedure leading to the rejection may be flawed in some points. First, you were not invited to any interview to explain why the tax was not paid even though you may have valid reason for not doing so at the time. This is a breach of HO policy of Evidential Flexibility. Second, there has not been any conviction of crime that portrays you as a threat to the society (paragrapgh 322.5).
If the HMRC policy says you can still file undeclared income four years earlier and does not mean commission of crime, therefore HO cannot consider you a threat to society or use paragraph322 to refuse your application for what is not crime at the time of taking her decision as this will amount to retrospective justice. There are over 5 points (grounds) to argue this case. However, success will depend on robust argument and research you or your solicitors are able to come up with.
Also, if a victim has a family in the UK with at least a child born in the country, this is a straight fight to win. Of over 10 cases reviewed where ECHR8 was argued by applicants at the hearing, not even one lost his or her case. If you are interested read (Nigeria v Secretary of State for Home Department. Nigeria [2014] UKUT 00517 (IAC) THE IMMIGRATION). This case provides a major achievement for right to family life to be successfully argued.
I will copy paragraph one of the judge decision . ‘’THE DUTY IMPOSED BY SECTION 55 OF THE BORDERS CITIZENSHIP AND IMMIGRATION ACT 2009 REQUIRES THE DECISION-MAKER TO BE PROPERLY INFORMED OF THE POSITION OF A CHILD AFFECTED BY THE DISCHARGE OF AN IMMIGRATION ETC FUNCTION. THUS EQUIPPED, THE DECISION MAKER MUST CONDUCT A CAREFUL EXAMINATION OF ALL RELEVANT INFORMATION AND FACTORS.
In taking this decision the judge was informed by section 55 of immigration Act 2009. Also, HO advices her caseworkers to always consider section 55 where children are involved and this can be found under the topic General Ground for Refusal. However, the use of Section 8 of ECHR is now being threatened with the coming referendum as it will no longer be valid to hide under it anymore if the LEAVE camp wins.
So you may want to consider that instead of the more complex argument presented above. There are many academic materials, case laws and online publications you can refer to. They are online and not the work of a snake oil salesman or strategy of somebody who has been accused of using the board for either marketing strategy or to defraud unsuspecting members. So start reading.

[noajthan]

@masterpeas, kindly continue in your own topic where you are receiving responses:
http://www.immigrationboards.com/indefi ... 24069.html

You can ask your question about such points in your topic (crossreference this topic if it helps).

[tiku1]

Hi Akinsman,

I have a similar tax issue. I have received tax questionnaire from Home office. I am amending my taxes now. what explanation should I give to HO

[CR001]

Hi Akinsman,

I have a similar tax issue. I have received tax questionnaire from Home office. I am amending my taxes now. what explanation should I give to HO

Suggest instead of posting one line questions in every single topic you find, start your own topic detailing your circumstances. Also please stop digging up old topics. Take the time to read the forum T&Cs as well.