Settlement Application: Innocent Mistakes and Paragraph 322(5)

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
5 June 2018

There are many reasons that an application for leave to remain in the UK may be refused under the Immigration Rules. Among these reasons include the general grounds for refusal, stipulations which affect individuals who are applying for leave under each and every category.

An error on your application form that is interpreted by officials as an attempt to mislead or deceive can be disastrous for your immigration status. Your application may be refused, or if you’re applying for entry clearance, you can be banned from re-entry into the UK for 10 years.

Under the general grounds for refusal, an innocent mistake can lead to such problems – including an error you may have made on your tax returns.

Paragraph 322(5) of the Immigration Rules outlines that it is “undesirable” to accept applicants into the UK who are of “bad character”, usually involving their past criminal conduct, or who may pose a threat to national security. However, recent reports have claimed that applications from highly skilled migrants are being refused under this section, based on revisions they have made to their tax returns.

Paragraph 6 of the Immigration Rules defines “deception” as “making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.” In other words, an applicant can be refused if it is discovered that they have lied or have omitted information from their application. The Court of Appeal in Adedoyin (Nigeria) v SSHD) [2010] made it clear that “false” means intentionally and “dishonestly” false, not an innocent mistake that may have been made. It is important to note that the case of Shen [2014] reminds us that it is the responsibility of the SSHD to prove allegations of falsehood if you can provide an innocent explanation for the mistake.

Furthermore, Article 8 of the European Convention on Human Rights makes it clear that everyone has the right to private and family life. It is essential that any interference with the right to private and family life is proportionate.