Scores of Indian doctors, teachers, entrepreneurs and other professionals are challenging the UK government in court over being denied the right to live and work in Britain.
The professionals, brought together under the banner of the Highly Skilled Migrants group, were back opposite Parliament Square in London today (2) to protest against “unjustified” refusals by the UK home office of their applications for indefinite leave to remain (ILR) in Britain.
Since their last protest in February, many of the professionals refused ILR have appealed against the home office decision in the First Tier Tribunal and Upper Tribunal, the courts which hear immigration appeals.
“Given the Windrush scandal involving innocent migrants being denied their citizenship rights and the new home secretary (Sajid Javid) assuring the public that the home office will be fair in its immigration decisions, these cases take on an added significance,” said Aditi Bhardwaj, one of the convenors of the group.
“The way some of these skilled professionals have been treated is worse than criminals. We have evidence to show that the entire approach of the home office is unfair because it is based on how to find a way to deny someones legitimate application to live and work in the country,” she said.
The common factor among all the professionals, from non-European Union countries like India, Pakistan, Bangladesh and Nigeria, is that they were in the UK on a Tier 1 (General) visa.
They were entitled to apply for ILR or permanent residency status after a minimum of five years lawful residency in the UK. While the visa category itself was discontinued in 2010, former applicants were eligible to apply for ILR until April this year if they met the necessary requirements.
But legal experts have noted a pattern of many such applications being turned down on the basis of Rule 322(5), a discretionary rule linked to an applicants “good character”.
The reason for refusal under this rule is most often a discrepancy in the earnings declared to the home office and that to the UK’s tax department. While in some cases there may be a legal case of downplaying income for tax reasons or overstating for immigration purposes, experts believe the rule has been used unfairly as a blanket reason for turning down most applications under the Tier 1 (General) route.
“In the last couple of years, this refusal reason seems to have become near-automatic. The home office should not be treating legitimate business people as dishonest where there may be an innocent explanation,” said Mark Symes, a senior immigration barrister aware of several such cases where the home office seems to have displayed a “shoot first mentality”.
“The main potential for injustice is the seemingly automatic refusal of applications even when there are good explanations provided, for example where an accountant has admitted their own error in writing,” he said.
A 31-year-old Indian professional, who underwent a similar situation due to a minor correction in his tax return, is now fighting his case in the UK’s Court of Appeal. The former Heathrow Airport workers case has the potential of becoming a test case for hundreds of others who have been denied their ILR on similar grounds.
“The judge has indicated that the grounds of appeal have a good prospect of success,” said the professional on condition of anonymity.
“My entire life has been on hold for two years, during which I have been unable to work or focus on anything else. The home office is just interested in its immigration targets and finding any means to deny what is our right as skilled professionals who have been working hard and paying our taxes in this country,” he said.
His case comes up for its next hearing in June and could pave the way for a wider class action legal challenge.
“It is possible that a class action would be a good way for getting the law and the legal requirement for fairness to be clarified,” said Symes.
The groups protest outside parliament comes just days after newly-appointed home secretary Sajid Javid took charge amid an ongoing immigration crisis dubbed the “Windrush scandal” involving hundreds of Caribbean immigrants to Britain, and vowed to “do right” by migrants who had a legitimate right to be in the country.
Javid replaced Amber Rudd who resigned after admitting that she had “inadvertently misled” parliament over the existence of deportation targets for illegal immigrants.
The home office claims that any refusals are a direct result of discrepancies in the tax data quoted by applicants.
“Where there has been clear evidence that these applicants have lied on their visa forms, the courts have upheld our refusal decisions in most cases when these decisions are challenged,” a home office statement said.