Balajigari - what next? Minded to Refuse letters - a sting in the tail?

As a direct access immigration barrister, I have been doing a lot of paragraph 322(5) cases, ie cases where there has been a tax discrepancy and where it has been necessary to go to Court to challenge the decisions, previously there were cases in both the Upper Tribunal (Judicial Reviews) and the First Tier Tribunal where individuals had rights of appeal. I have mentioned that those where the individual has / had a right of appeal have a greater chance of succeeding.

As readers of my blogs and viewers of my Youtube channel "theimmigrationbarrister" will be aware in April 2019 the Court of Appeal handed down the decision in R on the application of Balajigari[2019] EWCA Civ 673 in which the Court of Appeal found that the HO process was flawed as individuals were not given any chance to comment on the Secretary of State's concerns.

Balajigari has often been misquoted or misunderstood. It was a resounding win in respect of the failure by the Home Office on the basis of procedural unfairness and recognised that such applications engaged or could well involve an interference with the Applicant and their family's private and family life in breach of Article 8 of the ECHR. The Court also held at [74 - 76] that while there was no Tameside duty to mirror or have regard to any HMRC enquiry (often HMRC did not impose a penalty and considered the individual to be careless as opposed to dishonest) that if the person had evidence of not been penalised then this could be relied upon.

The case also noted that bare assertions made by accountants in one line letters accepting responsibility were probably not enough to demonstrate that an Applicant had not bee dishonest, I have discussed this previously and stated that if evidence is to be produced and it is a third party who is at fault then the letter needs to be long and detailed. Also that if there were other reasons for individuals taking their eye of the ball then they needed to provide good evidence to this effect, such as a family member being unwell,

One positive factor is that Balajigari provided a way forward and guidance for the many hundreds if not thousand of people affected whereas before there was little in the way of UT guidance on this point, though at around the same time the case of Khan was reported - but in reality Balajigari went further.

Of note is that in conclusion in respect of whether a decision was unlawful the Home Office had been found wanting.

At first the Home Office appealed to the Supreme Court but withdrew the appeal.

Then started a long process of negotiating what was to happen next - ie how should the UT and CoA dispose of all the cases backed up behind Balajigari should be disposed of. I was involved in two of the four cases. After some discussion the HO determined that the HO would agree to withdraw the decision and if they had concerns they were to issue a minded to refuse letter "MtR" giving individuals some 14 days to respond and that the HO would pay costs.

In respect of the Court of Appeal cases, the picture was slightly different as people had invoked Balajigari in cases which did not strictly fall under the Balajigari cohort, the HO responded with a position statement thought to exclude those who had statutory appeals, those who had Cart JRs and other cases which were not square on challenges to SET O refusals essentially. This has been disputed in a number of cases on the basis that the HO's categorisation is perhaps a little harsh.

In respect of the UT cases, consent orders have been received though these have tended on occasion to try to avoid paying all costs, ie arguing costs only since Balajigari or since amended grounds, which is not what the position statement says, and I have challenged these consent orders re costs in a number of cases, happily getting all costs back.

A lot of people have thought that as soon as people received the Consent Order all they need do is wait for the ILR grant - however I am not alone in thinking that this is premature. In reality, I thought, and it has proven true in a fair few cases, that the HO are sending MtR letters.

Where the sting in the tail is that the letters are not, in the cases, I have been told the same as the old generic questionnaire but are far more detailed, indeed asking questions relating to individuals times as PSW or IGS migrants - (International Graduate Students for those who are relatively new to this field - I say this as this shows how far back the HO are going). I have heard that they are questioning individual transactions.

What is even more disturbing is that I have heard that this MtR letters are following the sealed Consent Orders fairly rapidly, while this is a good thing given that people have been complaining about the delay, it is not such a good thing where a) Christmas is coming and a lot of firms will be shut and b) there are only 14 days to respond. This opens the possibility of letters not being passed onto clients or clients have very little time to respond. While it is possible to ask for an extension of time, or so the HO said, it remains to be seen whether these will be granted and on what basis. 

My advice would be that if you have a sealed consent order see your lawyer as soon as possible to discuss whether you wish to vary, raise human rights and get whatever evidence you have to show lack of dishonesty or take such steps as to demonstrating this now, in fact I would say anyone who has any type of consent order, sealed or otherwise should be talking to their lawyer about the ways forward.

It goes without saying that if you have received MtR letter please contact your lawyer as soon as possible to work out the best way forward for you and your family.

As usual, I will be working over the Christmas break and will be able to deal with any urgent work, cases, responses that need to be filed, if necessary I can fit around schedules if work finishes late or can work by phone / email - indeed I have a fair number of people who instruct me from abroad and I enjoy a good success rate for these clients.

As part of my ongoing work in this area I have had the pleasure and privilege of working with the Highly Skilled UK ground - the Tier 1 intervenors in the Balajigari case and yesterday was able to carry out a short Q and A session with Salman from this group who has done a great deal of work to not only publicise this area of law but also who has helped countless people succeed in the ambition of settling in the UK.

You can find the video at the link set out below, if you are interested in seeing more of my regular videos on topical immigration maters please check my Youtube channel "theimmigrationbarrister"

The link to our chat is to be found here

https://youtu.be/ZrMuPnylW4g

You can also follow my comments and pick up the videos on twitter @paulturnerlaw

I will continue to post more and to produce further videos on this and other topics over the next few weeks.

If you have an immigration problem relating to Tier 1 / paragraph 322(5) or any other matter or if a family member has a problem please do not hesitate to contact me either through this site, or my clerks on 020 7 242 3488 or [email protected]

Paul Turner is a highly regarded direct access immigration barrister who is the founder and head of Imperium Chambers based at 2 Selkirk Road London SW17 0ES and also can be seen at 5 Chancery Road by appointment.