ILR LR refused - Paragraph 322.5 - Appealed - What options

[ttw]

Background

• She arrived in the U.K. on 02/2006 – Student Visa
• She was on a Student Visa from 2006 to 2009
• She was on PSW Visa for 2 years from 2009 to 2011
• She was on Tier 1 General Migrant initial application from 04/2011 to 04/2013
• She was on Tier 1 General Migrant Extension Application from 04/2013 to 04/2016
• She completed 5 years legally in the U.K. on 04/2016 and was eligible to apply for indefinite leave to remain on the Tier 1 General Migrant Route
• But before that She completed 10 years legally in the U.K. on 02/2016 and was eligible to apply for indefinite leave to remain on the Long residency Route so she did that

The Long Residency Visa was refused

“276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the secretary of state is not satisfied that each of the requirement of paragraph is met.”

“276B. The requirement to be met by an applicant for indefinite leave to remain on the grounds of long residence in the United Kingdom are that:

(iii) The applicant does not fall for refusal under the general grounds for refusal.
Paragraph 322 (5) of the of immigration Rules under General Grounds State:

“(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall with in paragraph 322 (1C) , character or association or the fact that he represents a threat to national security;

In view of the above, the secretary of state is satisfied that your presence in the UK is not conductive to the public good because your conduct makes it undesirable to allow you to remain in the UK. As such you do not satisfy the requirement of the immigration rules for this category and it has been decided to refuse your application for indefinite leave to remain under paragraph of 276D with reference to 278 B (iii) of the immigration rules.

It is acknowledged that paragraph 322 (5) of the immigration rules is not a mandatory refusal , however the evidence submitted does not satisfactory demonstrate that the failure to declare to HMRC at the time any of the self – employed earnings declared on your previous application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant was a genuine error.
Appeal was granted therefore appealed the decision and the appeal hearing is on May 2017

Reason for the HMRC Tax Returns and UKBA Earnings declared did not match

• When she went to her OISC agent to submit the initial application for tier 1 general migrant in 2011. She already had an accountant, but the agent check the accountant and said that he is not a certified charted qualified accountant and therefore she cannot use that accountant to submit financial statements to the UKBA. Therefore she had to find a charted certified accountant to submit her financial statements. So she found a new accountant and gave him her invoices, bank statements and all relevant documents to draw up the financial statements

• Therefore In the tier 1 general migrant initial visa in 2011 she used the new accountant to draw up the financial statements to submit to UKBA as he was charted certified accountant and the old accountant submitted the tax returns to the HMRC.

• She submitted the application in 2011 and her tier 1 general migrant was granted and as informed by her old accountant she paid the tax that was due.

• In the tier 1 general migrant extension visa in 2013 she used the same new accountant to draw up the financial statements to submit to UKBA as he was charted certified accountant and the old accountant submitted the tax returns to the HMRC.

• She submitted the application in 2013 and her tier 1 general migrant extension was granted and as informed by her old accountant she paid the tax that was due.

• In both 2011 and 2013 the financial statements prepared by the new accountant was given to the old accountant along with the bank statements and invoices

• However in 2016 when she submitted the long residency application the application was refused as stated above.

• Then she realised the amount submitted to UKBA and the amount submitted to the HMRC was incorrect.

Actions Taken

• I advised her to get a new accountant and re-submit the tax returns for 2011 and 2013. She did that.

• The new accountant gave her amended tax returns, letters to support her changes submitted to the HMRC.

• In April 2016 she became eligible to apply for indefinite leave to remain through Tier 1 (General) Migrant route.

• Along with the accountants documents she posted the application to UKBA in April 2016 but did not withdraw the pending appeal she submitted before.

• In June 2016 HMRC confirmed her tax returns were all amended

• In November 2016 her application was returned with a refund cheque confirming they cannot process the application as there is an appeal pending.

• She didn’t with draw the appeal because on Tier 1 general route there is no appeal rights and she didn’t want to risk not having an appeal

Options Available

1) Her spouse is a Permanent Resident in U.K. they married on August 2014 and she can apply as his dependent but in this case she has to wait for another 5 year to get permanent residency right?

2) Because she has option one she wanted to withdraw the appeal and re-submit her Set (O) for indefinite leave to remain in Tier 1 General Migrant Visa

a. but can she submit her income from Feb 2015 to Jan 2016

b. because she was eligible to apply for indefinite leave to remain in this route as at April 2016 and has completed 5 year from April 2011 to April 2016

c. or does the income or earning submitted in this route should be for the current period from the date of the application?

3) Go to the Appeal in May 2017 based on her Long Residency application (which is a human rights application) and wait for the judge’s decision

a. She is not keen for this option as she doesn’t know how the judge will rule.. it is still a trying ground… some gets approved some gets rejected

Her main aim is to clear the deception allegations on her. Then obtain Permanent Residency

PLEASE ADVICE WHAT YOU WOULD DO IF YOU WERE IN HER POSITION.. SHE IS A REALLY NICE PERSON AND SHE HAS NEVER BREACHED EVEN A SIMPLE LAW IN THIS COUNTRY.. I CANT IMAGINE SHE WOULD HAVE DELIBERATLEY DONE THIS AS SHE IS NOT THAT KIND OF A PERSON.. SO I TOLD HER I WILL WRITE TO YOU GUYS TO SEE AS I CAN SEE YOU ARE VERY HELPFUL HERE.

PLEASE HELP