ILR Refused / AR Refused

[Victor77]

Hello Gurus, Please advise

i have applied for my ILR via tier 1 general migrant in Croydon recently and got refused based on 322A (Deception/dishonest).

Reason for refusal:
my name is not on HMRC spreadsheet however the application is reviewed based on 5 years SA302s that i have submitted. they quoted that 3 years before when i applied for my tier 1 extension i have showed an income of 32k (part emp+part self emp) but the tax returns that were filed for the amount that was claimed for the extension was different, stated that i claimed higher earnings and declared less net profit at the time of filing the tax returns.

AR(Administrate Review) appeal:
stated that at the time of application the earnings were genuine but incurred unexpected expenditure 3 months after which reduced the net profit (also has proofs). Allowed within the accountancy and legislation.

AR reason for refusal:
Although the expenses are accepted within the accountancy and legislation however you have not met the criteria as you have inflated the earnings at the time of extension but reduced net profit at the time of filing the tax returns (which doesn't make sense at all as the expenses didn't incur at the time of extension or accounts)

Question for the GURUS:
as the expenses were genuine which can be proved, is it advisable to make a fresh application with additional supporting documentation or to apply for a JR ?

thank you ever so much in advance

regards
Victor

[Abc499]

AR reason for refusal:
Although the expenses are accepted within the accountancy and legislation however you have not met the criteria as you have inflated the earnings at the time of extension but reduced net profit at the time of filing the tax returns (which doesn't make sense at all as the expenses didn't incur at the time of extension or accounts)

Seniors and GURUS will hopefully give there views on your issue, I am looking for that too.

I am just giving my views reading last one month here (I have also little tax issues like you and do not know what will happen for me).

your expenses are genuine and accepted within the accountancy and legislation BUT if we accept this then I think very less chance to fight with this. Because if after the expense NET profit comes below the UKVI claiming threshold (for the claiming period) then I myself confirming that I am not someone meeting the threshold, because the threshold is after everything what I have earned. So If I accept I am below this then I was not on the position to get the points. I do agree expense are genuine and perfectly fine with accountancy but saying this will be UKVI view which may be we can not do anything to change. If after the expense still I am reaching the claiming threshold then Probably HO can not say anything.

Hope you will find a way with Experts advise.

[Wanderer]

I think people are ignoring the accounting concept of accruals.

Whilst there could possibly be some unexpected after year end expenses, these should be minimal and immaterial since the vast majority will have been accrued for and incorporated into the accounts in the correct year.

[noajthan]

I think people are ignoring the accounting concept of accruals.

Whilst there could possibly be some unexpected after year end expenses, these should be minimal and immaterial since the vast majority will have been accrued for and incorporated into the accounts in the correct year.

Good point.

So the fundamental dichotomy between:
HMRC wants and needs;
and
UKVI wants and needs;
- may be resolved.

It seems the differing sets of requirements and standards (HMRC v UKVI) need not be the source and root cause of misfiling of ILR (based on self-employment/T1E ahem 'errors') after all.

The answer appears to be hire a competent and experienced and accredited accountant well-versed in accounting practice and provide appropriate governance and oversight.

Shouldn't be a big ask, after all the Medicis came up with double-entry bookkeeping around 500 years ago.

[fat1983]

Since the refusals are getting bigger & bigger, there is certainly a Caselaw to come in no time & I assume all these people who's applications were refused because of even late amendments (not filing the return or amending after getting refusal may not stand chances) but before claiming ILR would get a better chance but in the meantime, there's no other-way but to leave yourselves at the mercy of those GCSE/GAP YEAR student caseworkers.
You guys possibly know the intensions of the UKVI & approach towards the migration policy of the Non-EU's where they first closed almost all the appeal rights by saying they would better dealt with AR which is a lie (proved in the Chief Inspector's Report Recently) & then refuse all the applications in Draconian manner & because local British People wouldn't know anything about it so they will get away with this where the Govt. won't be able to get away with a PARKING TICKET NOTICE without an appeal right to that because that involves Local People.
And the Shambolic behaviour on the UKVI are no better than the SHAM MARRIAGE scandals or the TOEIC Scandal since it's also been revealed...
Anyway guys, hope for the best & it may a better idea if you guys who've been victims could get together where you think you done things under law & nothing illegal & launch a legal challenge & you would get a better remedy & those idiots at the UKVI would be forced to make the fair decisions...

[Victor77]

Hello Gurus, Please advise

i have applied for my ILR via tier 1 general migrant in Croydon recently and got refused based on 322A (Deception/dishonest).

Reason for refusal:
my name is not on HMRC spreadsheet however the application is reviewed based on 5 years SA302s that i have submitted. they quoted that 3 years before when i applied for my tier 1 extension i have showed an income of 32k (part emp+part self emp) but the tax returns that were filed for the amount that was claimed for the extension was different, stated that i claimed higher earnings and declared less net profit at the time of filing the tax returns.

AR(Administrate Review) appeal:
stated that at the time of application the earnings were genuine but incurred unexpected expenditure 3 months after which reduced the net profit (also has proofs). Allowed within the accountancy and legislation.

AR reason for refusal:
Although the expenses are accepted within the accountancy and legislation however you have not met the criteria as you have inflated the earnings at the time of extension but reduced net profit at the time of filing the tax returns (which doesn't make sense at all as the expenses didn't incur at the time of extension or accounts)

Question for the GURUS:
as the expenses were genuine which can be proved, is it advisable to make a fresh application with additional supporting documentation or to apply for a JR ?

thank you ever so much in advance

regards
Victor

thank you very much for your prompt replies and i really appreciate and value your opinions, but the fact remains whether it is advisable to make re-application or to go for JR as my Tier 1 G expires in 2018 and there is risk of time delays in JR and it is unlikely that i would get another chance to make a re-application after JR bit confused please can anyone shred light on this

[Ajay009]

Hello Gurus, Please advise

i have applied for my ILR via tier 1 general migrant in Croydon recently and got refused based on 322A (Deception/dishonest).

Reason for refusal:
my name is not on HMRC spreadsheet however the application is reviewed based on 5 years SA302s that i have submitted. they quoted that 3 years before when i applied for my tier 1 extension i have showed an income of 32k (part emp+part self emp) but the tax returns that were filed for the amount that was claimed for the extension was different, stated that i claimed higher earnings and declared less net profit at the time of filing the tax returns.

I'm in same boat, Just yesterday I got similar response with 322(5). But I didn't apply for AR yet, planning to apply, shall I apply AR or not ? Or do I have to amend those expenses claimed back and re-apply again ? Can anyone advice asap please.

[shanuk]

Hi,

For your case, I have a simple and straight understanding that we are not on salaries where income remains 100% the same.

Business is business, have ups and downs. If they wanted us to pay the exact tax according to the income we declare with HO then HO would have actually mentioned it on the policy. And would have made it a mandatory requirement that we need to have our company financial year endings according to the period we have used for our previous earnings claims with HO.

They are simply generalizing and pushing their assumption that everybody had inflated their earnings and everybody who are doing business/self employment are the same.
Why didn't they had implemented any controls before hand and provided the conditions in the policy.

In my opinion for your specific case, if you had expenses then you had expenses and that's it.

Ask your accountant to write a letter that your income for the period was as you declared and outside that period your business incurred expenses which reduced profit for your business financial year (Business financial year and period given for earnings are 2 different cycles overlapping in some areas but not all).

Definitely the expenses cannot be too much that they wipe out all the profits.

I would go for JR.

[Ajay009]

Hi,

For your case, I have a simple and straight understanding that we are not on salaries where income remains 100% the same.

Business is business, have ups and downs. If they wanted us to pay the exact tax according to the income we declare with HO then HO would have actually mentioned it on the policy. And would have made it a mandatory requirement that we need to have our company financial year endings according to the period we have used for our previous earnings claims with HO.

They are simply generalizing and pushing their assumption that everybody had inflated their earnings and everybody who are doing business/self employment are the same.
Why didn't they had implemented any controls before hand and provided the conditions in the policy.

In my opinion for your specific case, if you had expenses then you had expenses and that's it.

Ask your accountant to write a letter that your income for the period was as you declared and outside that period your business incurred expenses which reduced profit for your business financial year (Business financial year and period given for earnings are 2 different cycles overlapping in some areas but not all).

Definitely the expenses cannot be too much that they wipe out all the profits.

I would go for JR.

Thanks for your input......anymore suggestions will be welcome

[iworker]

this is not case specific, but standing outside and being neutral and honest to myself, people need to appreciate where ukvi is coming from.
Tier 1 gen was a point based visa.. you get certain points (say) for showing earnings between 35-40k. People produced projected accounts for this amount and then later submitted taxes for less than 10k. And then they come and mourn on this forum that they have been put on deception cos they tried to amend accounts after 4 years and just before applying ilr. There is a lot of things wrong with ukvi, but this aint one of them.

[Wanderer]

Ask your accountant to write a letter that your income for the period was as you declared and outside that period your business incurred expenses which reduced profit for your business financial year (Business financial year and period given for earnings are 2 different cycles overlapping in some areas but not all).

How would this explain why these 'expenses' were never accrued for?

[Plzilr]

this is not case specific, but standing outside and being neutral and honest to myself, people need to appreciate where ukvi is coming from.
Tier 1 gen was a point based visa.. you get certain points (say) for showing earnings between 35-40k. People produced projected accounts for this amount and then later submitted taxes for less than 10k. And then they come and mourn on this forum that they have been put on deception cos they tried to amend accounts after 4 years and just before applying ilr. There is a lot of things wrong with ukvi, but this aint one of them.

so instead of soliciting ukvi, if you really want to be a nuetral and honest by yourself so think in this way rather then advising people to appreciate them, ukvi work was to conduct the thorough checking before giving visa but they didnt, applicant provided them everything at the time of application to proof that what they have claimed is claimed from right soucrce and genuinely now its ukvi who is mourning and relying 2 years old data base and deciding applicants future and also toring them apart not only finanicaly and family wise but also mentally torturing them by snatching appeal rights from them.

[RRSB2012]

Abc499 had nailed it in the head and Wanderer have a very valid point ......

You may say that you haven't received invoices at the time ..... but then still you must have received good or services and you would have known the approximate price? ..... or was that not the case

[shanuk]

this is not case specific, but standing outside and being neutral and honest to myself, people need to appreciate where ukvi is coming from.
Tier 1 gen was a point based visa.. you get certain points (say) for showing earnings between 35-40k. People produced projected accounts for this amount and then later submitted taxes for less than 10k. And then they come and mourn on this forum that they have been put on deception cos they tried to amend accounts after 4 years and just before applying ilr. There is a lot of things wrong with ukvi, but this aint one of them.

so instead of soliciting ukvi, if you really want to be a nuetral and honest by yourself so think in this way rather then advising people to appreciate them, ukvi work was to conduct the thorough checking before giving visa but they didnt, applicant provided them everything at the time of application to proof that what they have claimed is claimed from right soucrce and genuinely now its ukvi who is mourning and relying 2 years old data base and deciding applicants future and also toring them apart not only finanicaly and family wise but also mentally torturing them by snatching appeal rights from them.

Totally agreed. Also please note that they are GENERALIZING, GENERALIZING and blaming everyone the same. Business is Business and not employment. In business and then in accounting loads of concepts are there which are also at discretion. You do not not necessarily have to adapt the accounting concept of accrual on everything and all the time same way.

If HMRC also deals same way the way HO is dealing then at least half of the UK businesses will be considered as dishonest and deceptive. They should have HMRC staff next to them and his/her comments should be mandatory before refusal.

I agree not everybody the same and many times HO is correct but not all the times. My point is only that they should not be refusing by simply generalizing everyone and they should have further guidance from HMRC before refusing and giving stress to the individual, his/her family and leaving the burden to proof applicants innocence on their shoulders. And if by any chance applicant is actually innocent but not been able to communicate his innocence properly then he/she will be held guilty.

[noajthan]

Totally agreed. Also please note that they are GENERALIZING, GENERALIZING and blaming everyone the same. Business is Business and not employment. In business and then in accounting loads of concepts are there which are also at discretion. You do not not necessarily have to adapt the accounting concept of accrual on everything and all the time same way.

If HMRC also deals same way the way HO is dealing then at least half of the UK businesses will be considered as dishonest and deceptive. They should have HMRC staff next to them and his/her comments should be mandatory before refusal.

I agree not everybody the same and many times HO is correct but not all the times. My point is only that they should not be refusing by simply generalizing everyone and they should have further guidance from HMRC before refusing and giving stress to the individual, his/her family and leaving the burden to proof applicants innocence on their shoulders. And if by any chance applicant is actually innocent but not been able to communicate his innocence properly then he/she will be held guilty.

UKVI is not HMRC, they serve different roles and functions.
Half the businesses in the country and their practices (good or bad) are not relevant if not involved in visa/migration-related applications.

In a visa application the burden of proof is on the applicant to meet requirements and to submit adequate documentary supporting evidence (etc etc).

And it is clear many cases should be processed by post and not via PEO.
The PEO service is clearly not configured to handle complex cases. It is a high-risk strategy to attempt to use PEO in such cases.

I do not know on what evidence it is possible to say UKVI generalises.
Depending on the area of rules, cases are weighed and assessed on the balance of probabilities.

Each case is assessed on merit based on published guidance and regulations (& legislation).
This is widely available and prudent applicants can avail themselves of it ahead of time.
After all, forewarned is forearmed.

Applicants would certainly do themselves favours if they hired accountants familiar with fundamental concepts such as accruals.
Figures for UKVI and for HMRC purposes would then be more likely to be aligned;
the subsequent need for amendments (3 or 4 or 5 years later) could/should/would be minimised.

[shanuk]

Totally agreed. Also please note that they are GENERALIZING, GENERALIZING and blaming everyone the same. Business is Business and not employment. In business and then in accounting loads of concepts are there which are also at discretion. You do not not necessarily have to adapt the accounting concept of accrual on everything and all the time same way.

If HMRC also deals same way the way HO is dealing then at least half of the UK businesses will be considered as dishonest and deceptive. They should have HMRC staff next to them and his/her comments should be mandatory before refusal.

I agree not everybody the same and many times HO is correct but not all the times. My point is only that they should not be refusing by simply generalizing everyone and they should have further guidance from HMRC before refusing and giving stress to the individual, his/her family and leaving the burden to proof applicants innocence on their shoulders. And if by any chance applicant is actually innocent but not been able to communicate his innocence properly then he/she will be held guilty.

UKVI is not HMRC, they serve different roles and functions.
Half the businesses in the country and their practices (good or bad) are not relevant if not involved in visa/migration-related applications.

In a visa application the burden of proof is on the applicant to meet requirements and to submit adequate documentary supporting evidence (etc etc).

And it is clear many cases should be processed by post and not via PEO.
The PEO service is clearly not configured to handle complex cases. It is a high-risk strategy to attempt to use PEO in such cases.

I do not know on what evidence it is possible to say UKVI generalises.
Depending on the area of rules, cases are weighed and assessed on the balance of probabilities.

Each case is assessed on merit based on published guidance and regulations (& legislation).
This is widely available and prudent applicants can avail themselves of it ahead of time.
After all, forewarned is forearmed.

Applicants would certainly do themselves favours if they hired accountants familiar with fundamental concepts such as accruals.
Figures for UKVI and for HMRC purposes would then be more likely to be aligned;
the subsequent need for amendments (3 or 4 or 5 years later) could/should/would be minimised.

I am talking about this particular case. We need to see this case on its on merits. Applicant confirms that expenses are at later stages and he can prove it. So why we are generalizing and mentioning all the situations which are not related to this case.

And about your point that HO is HO and not HMRC, that is the only reason that they should have HMRC staff comments before refusing.

All other factors you have mentioned I agree in principal.

[iworker]

so without generalizing, on this case, where the OP got the visa because he had an income (possibly additional income) to meet a certain bracket of earning and hence points awarded, and later inuring the expenses, it is wrong for ukvi to reject the ilr as they think the op was not in the same bracket anymore. In hindsight, does this mean ukvi should have curtailed the visas of people who incurred unexpected expenses that took them below the earning brackets? At least in that way, all the mental torture that u have just described would have been avoided.
the fact remains that this visa was excessively abused and was closed for even genuine people.

[Wanderer]

The accruals concept is fundamental, not optional.

When one signs off ones accounts after the accountant (or proprietor) has prepared them, he is legally confirming that they truly reflect the company's financial position at the time.

Suddenly finding £6k of 'expenses' after the event goes against the accountant's natural sense of prudency and makes a mockery of his obligation for his work to represent the true financial position.

For the record I've no issue with folks making errors and rectifying them in a true and honest way, that's life, stuff happens, but for those that have deliberately manipulated their accounts to reach the earnings level then clawed it back as 'unexpected expenses' are dishonest. As for the punishment fitting the crime, that's a tricky one but it's either let them off or let them get away with it.

[shanuk]

so without generalizing, on this case, where the OP got the visa because he had an income (possibly additional income) to meet a certain bracket of earning and hence points awarded, and later inuring the expenses, it is wrong for ukvi to reject the ilr as they think the op was not in the same bracket anymore. In hindsight, does this mean ukvi should have curtailed the visas of people who incurred unexpected expenses that took them below the earning brackets? At least in that way, all the mental torture that u have just described would have been avoided.
the fact remains that this visa was excessively abused and was closed for even genuine people.

For this case, it is all depending on how many expenses? How much profit wiped out? if significant amount then yes it is and will be a problem.

[Abc499]

I wish the applicant get decision on his end in JR. But unfortunately from my little knowledge I think it will not be good way to try to prove that the expense was genuine. because the more I try to prove that the expense is genuine (if after expense income goes below threshold) the more I am proving that my earnings below. On this scenario HO will have a good ground that this route is deigned for those who meeting the threshold. In the first place HO could ignore this or consider this, but once they mention this (after expense its below threshold) they also will not get any ground to reconsider this. I think there could be way out only by somehow something proving over threshold income but less chance by claiming/accepting below threshold. Because if HO accept below threshold by any means then they need to overturn hundreds of application.

[Immigrantshimmigrant]

@Abc499

I think you will have a strong case given the fact that the terms and conditions stated for tier 1 general visa required people to have earned at least the relevant threshold amounts in the 12 months preceding the application and not in the tax year. So if you earned let's say 35k in the period Jan to Dec of a year but had little or no business in the following 4 months of Jan to April then obviously your total earning in the tax year will be different to your total earning in the previous 12 months.

I think the point of consecutive 12 months over which you earn money is key?

[Victor77]

The accruals concept is fundamental, not optional.

When one signs off ones accounts after the accountant (or proprietor) has prepared them, he is legally confirming that they truly reflect the company's financial position at the time.

Suddenly finding £6k of 'expenses' after the event goes against the accountant's natural sense of prudency and makes a mockery of his obligation for his work to represent the true financial position.

For the record I've no issue with folks making errors and rectifying them in a true and honest way, that's life, stuff happens, but for those that have deliberately manipulated their accounts to reach the earnings level then clawed it back as 'unexpected expenses' are dishonest. As for the punishment fitting the crime, that's a tricky one but it's either let them off or let them get away with it.

I completely agree with you Wanderer, but having said that, in recent times HO is refusing almost every single case in the view of section 322 for applicants who have either made amendments or rectified even before making an application to the HO. so in hindsight they are refusing even without asking for an explanation which i think is a bit harsh. Also they quoted in recent refusals that inflating the income in order to meet the threshold. well...there is no guidelines as such that under Tier 1, in order to qualify you have to be maintaining your income throughout the visa period in which case self employment can never be eligible as the income fluctuates. Every knows there are glitches but cannot assume every case is the same and in my case this happened only once within my 14 years history in the UK, that means im being dishonest... Why cant the HO review the case holistically before stamping some one being deceptive and stomp someone's life

[Abc499]

I think the main issue is, HO change they way to look. before one also year they were not that much strict like now, even though the rules remain same but they change the way of looking.

two genuine case same income same period (figures changed to explain the issue)
earnings aug 12- July 13 for extension
claimed threshold: 40k
employment: £12 (continuous employment till now 1000/month)
self-emp: £28k (20K was tax year 13, 8K tax year 14)

case: A
HMRC submission was
year 2013: emp- 12k, Self-20k; total 32k
Year 2014: emp-12k, Self- 8k; total 20K
Result: ILR approved.

Findings: On no tax year 40K income was on HMRC but visa approved, so which means they are only looking for the self-employment amount which you claim on application is on HMRC or not. They combine both year as its split in two years.

case: B
HMRC submission was
year 2013: emp- 12k, Self-28k; total 40k
Year 2014: emp-12k, Self- 0; total 12K
Result: ILR Refused.
AR pending.


Findings: Applicant genuinely made mistake on submission though income was split in two tax year but by mistake he submit all together on 2013. Even though his tax year 2013 on HMRC showing 40K but still they refuse and mention to him, earlier your self-income claim was from tax year 2014 too but HMRC record zero.

Both applicant paid tax for same amount (B paid wrongly) even B HMRC 2013 showing income 40K but still refused. So what I understand that they do not want to see anything they want to see the figures which claimed are on HMRC. Yes an applicant claiming 12 month is the main thing and by tax year end the amount can change it is very much possible but still it seems to me anyhow they want to get this amount on HMRC may for self-employment amount they are considering (case A both year together is just same as UKVI claim and even he did not paid an additional pound extra on top of UKVI claim).

And for the amendment somehow few lucky applicant getting ILR, its probably complete luck and depend on the case worker mood. Nothing predictable now and computer want to see claiming fugues or above on HMRC (they do not want to see that goes down by loss or expense by any means).