In a new report, the Migrant Rights Network UK has accused the British Home Office of criminalizing at least 65 highly skilled migrants and leaving them in legal limbo, threatening them with removal and having a "devastating impact" on their lives.
Omar* is a highly skilled migrant (HSM). The UK has been his and his family’s home for "nearly 15 years." Omar says that he and his wife are "proud members of the NHS (National Health Service) volunteer responder team and have been continuously volunteering for the NHS and care sector during the COVID-19 pandemic."
Yet, Omar says that despite having spent some of his education in the UK, built up professional qualifications in the country, and made friends and created a family, his application for indefinite leave to remain (ILR) has been refused.
Omar is just one of a group of about 65 Highly Skilled Migrants (HSMs) who are being refused indefinite leave to remain by the Home Office. His testimony features in a report by the Migrant Rights Network (MRN) published on January 27, 2021.
Because of that, says Omar, "we have been forced to sell what little valuables we have left. Each day piles further misery on us. We are falling into a cycle of debt and have only managed to stay afloat due to the generosity of friends and local food banks."
The UK's new immigration system says it places an emphasis on attracting skilled migrants. However, for a small group of HSMs, this doesn't seem to be the case.
The Home Office’s decisions "have had a devastating impact" say MRN on this group of HSMs who, without ILR are essentially in a sort of legal limbo, despite having come to the UK on work visas and been welcomed when they arrived between 10 and 17 years ago.
In the intervening years, MRN say these people have had children in the UK, and some others are living with disabilities, all factors which should influence the Home Office's process for granting ILR. HSMs, say MRN comprise "health workers with the NHS [National Health Service], biomedical scientists, accountants, IT consultants, factory production managers and many others."
Over 90% of them studied in the UK and hold a post-graduate degree, including MBAs. The HSMs without leave to remain originate from "six South Asian and African countries," including India, Pakistan and Nigeria. All come from Commonwealth countries, says MRN.
However, this group of people were, according to MRN, targeted after April 2015 when the Home Office decided to merge its migration databases with HMRC (tax collection) records. That was when highly skilled migrants "were made easily-traceable, low hanging fruit to target."
According to MRN, 87% of this group enlisted help from an accountant with their tax returns and for 83% of them this was their "first ever tax return in the UK."
What happened in essence was that after April 2015, the Home Office began to apply the decision of "bad character" or "dishonesty" in relation to "historic self-employment tax discrepancies; some over 10 years ago. So that anyone who had applied for a visa but had previously committed some kind of tax discrepancy could be refused the visa or ILR because of it," explains MRN in their report.
"The denial of ILR leaves them in legal limbo, and in a hostile environment, with no ability to work, rent, drive, receive NHS healthcare, open bank accounts or receive access to public funding," points out the MRN executive report.
Usually, the immigration act is only allowed to remove people from the UK who have committed serious criminal offenses, like terrorism, rape, murder or are deemed a threat to national security. MRN argues that it is not fair to put people who may have committed an error on their tax return once in the same category as dangerous criminals.
In fact, a court case brought in April 2019 about one of these cases, ruled that the Home Office’s 2015 decision-making process was "unlawful," and made sure that "up to 80% of HSMs were granted ILR."
'Fallen through the cracks'
However, MRN points out that about 65 cases remain which have "fallen through the cracks for reasons including the timing of their applications and having been given no opportunity to answer questions or 'tell their story' as to why the discrepancies occurred."
According to MRN, 80% of these 65 remaining HSMs have not been sent a 'Minded to Refuse' (MTR) letter from the Home Office which essentially asks the applicant to provide evidence as to why any discrepancy occurred and also to explain why they have a human right to stay in the UK.
The evidence provided in response to an MTR, according to blogs on this subject need to be detailed. Paul Turner, a barrister in the UK writing under the moniker "The Immigration Barrister", has prepared a video and a blog on the subject.
22% of the HSMs have also been given "no chance to explain the dicrepancies through a right of appeal," according to MRN. In many of the cases, found MRN, the Home Office didn’t really seem to accept or provide any clear evidence that the burden of proof of any wrongdoing was essentially on the Home Office to "evidence dishonesty."
MRN also says that in many cases it doesn’t seem like the Home Office took the time to find out all the relevant factors related to the application for leave to remain, like for instance "substantial positive contribution to the UK."
Destitute and homeless
MRN says that "being asked to leave the UK is clearly contrary to [the HSM’s] best interest." Those who have been refused leave to remain means that they are often, like Omar, surviving on no work, no healthcare and a loss of other rights too.
In fact, say MRN "45% are homeless, destitute or unable to pay rent." COVID-19 has only exacerbated this situation. Sometimes a combination of these factors has made it financially impossible for the HSMs to continue to fight their cases.
This situation of insecurity is in direct violation of the HSMs right to liberty and security of person as defined in article 9 of the International Convention on Civil and Political Rights, and article 5 of the European Convention on Human Rights, say MRN.
Even for the HSMs who have limited leave to remain, periods of 30 months or ten years, MRN says it is "uncertain" what effect these historic tax returns might have on their future applications. MRN thinks that it could make them "undesirable," in the eyes of the Home Office and might tarnish the assessment of their "good character" once they are able to apply for ILR or naturalization.
MRN is now calling on the Home Office to "end the use of section 322(5)" which they say is "criminalizing HSMs and other migrants who do not fall under the named refusal reasons in 322(5) – namely convicted criminal, national security threat, on travel ban lists."
They also ask that while a decision on their case is still pending, all HSMs should be allowed to continue to "work, rent, drive and have access to public funding support." During the COVID-19 pandemic, that means that these migrants should also be given emergency support.
MRN is also asking for all cases to be reconsidered where it "cannot be shown that the Home Office consistently and sufficiently applied a balancing exercise that took into account "all other relevant [and positive] factors,' established 'dishonesty' under its own legal burden of proof, carried out an 'exercise of discretion' which placed the burden on applicants to prove that an 'innocent mistake' was not made."
Another member of the group, Ahmed Tilal Pasha who is 38 and from Pakistan, told the British newspaper The Guardian, that after having his application for leave to remain refused, he is feeling "mentally exhausted."
According to the Guardian, Pasha first got into trouble in 2015 "when hostile environment rules relating to a discrepancy in his tax return prevented him from being granted ILR." Pasha told the Guardian his tax return was "filed by his accountant and that he was innocent of any deliberate error."
The Guardian said he is living with his wife, "who has a life-threatening heart condition, and their five-year-old daughter and three-year-old son in one room." Pasha says he is not allowed to work and he has "sold everything we have." He said he has lost his job and with it "his dignity."
A minister for future borders and immigration at the Home Office, Kevin Foster, however told the Guardian that he believes the 2019 court ruling said the Home Office's "use of these immigration rules was appropriate" and that they were "justified to expect a full and convincing explanation about glaring discrepancies between their visa applications and their tax records."
Foster told the Guardian that their own review had found that "88% of those refused under 322(5) claimed in their visa applications their earnings were more than 10,000 pounds a year higher than was shown by their tax records." Foster said that "these are not small mistakes in tax records."
Foster assured the Guardian that the Home Office was "working to resolve these outstanding cases fairly and as quickly as possible." He denied the MRN charge that some of those awaiting the outcome of their application were destitute and said that the HSMs had been "granted permission to study or work while their cases are reconsidered."
*Not his real name