A widower who is the sole carer of his four-year-old son has been forbidden to work and ordered to leave the country – even though the Home Office’s own lawyers advised them to drop the case.
Andrew Farotade, who is from Nigeria, won a £1,500 scholarship in 2009 to study his second master’s degree in engineering at the Robert Gordon University in Aberdeen. He then worked for the Security Industry Authority in jobs in which he was responsible for the security of highly valuable, hi-tech equipment and intellectual assets worth millions of pounds.
Farotade married Precious, a lecturer with a doctorate degree in inorganic chemistry, in 2013. Their son, Victor, was born the following year. A few months later, Precious was diagnosed with terminal cancer.
“This was a very difficult time for us,” said Farotage. “I visited Precious every day before or after work at her specialist palliative care unit, taking Victor along. I had to be supportive every moment while coping with the pains of watching her health deteriorate,” he said. “Also I had to cope with childcare and the challenge of work: I couldn’t take any time off because I needed to meet the required earnings for my application for ILR [indefinite leave to remain].”
When their son was just over two years old, his mother died. “This still remains the saddest day of my life,” said Farotade. “But three days later, I received the news that my ILR had been refused – and refused under part of the immigration rules that categorises me alongside terrorists and threats to national security.”
The refusal was full of errors, said Farotade’s lawyer, Adam Reid. “We have been dealing with a lot of these types of cases,” he said. “The Home Office seem to regard any discrepancy with an individual’s tax records to be dishonest behaviour worthy of refusal under 322(5).”
Reid says the Home Office made errors by comparing part of Farotade’s gross earning to his net earnings, then accusing Farotade of deceit when the different periods resulted in different incomes.
The Home Office also said Farotade had been dishonest by amending his tax records when he discovered an error, despite his accountant writing to the Home Office to admit liability. The HMRC, in contrast, accepted Farotade’s amendment without censure, and an independent chartered accountant submitted expert evidence that it is not deceitful to amend tax returns.
Farotade’s case is important because it highlights what appears to be the disproportionate use of paragraph 322(5) and the tactical way the Home Office uses it to enforce removals, even against the advice of their own lawyers.
In the immigration rules, paragraph 322(5) is listed under “grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused”. The controversial paragraph says these grounds include “the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct … character or associations or the fact that he represents a threat to national security”.
Farotade requested his file from the Home Office. This showed that the government’s legal department had advised the secretary of state that it “felt the decision on deception would be difficult to maintain”. The lawyers advised the Home Office to “agree to settle judicial review with costs in favour of the petitioner”.
“This was blatantly ignored by the Home Office,” said Farotade.
After a legal struggle costing Farotade £2,800, the Home Office had to drop one of its core reasons for rejecting Farotade’s application – that he had been out of the country for too long during his application process.
“They simply ignored a lot of the information I gave them and no effort was made to request further information or clarification, or even invite me for interview,” he said. “It cost me almost all my savings to make them admit they’d made a basic mistake when adding up the number of days I had been out of the country in the relevant period.”
Shortly before his judicial hearing, the Home Office decided it couldn’t defend its accusations of deceit against Farotade. They agreed to pay his legal fees, which they have not yet done, and reconsider his case.
Three months later, however, they refused him again. This time, however, they said his “character and conduct” were so “undesirable” that he shouldn’t be allowed to stay in the UK.
“Details of this undesirable ‘character and conduct’ were not presented in any shape or form in their new rejection letter,” said Farotade. “Paragraph 322(5) means that if the Home Office choose to make a refusal based on ‘character and conduct’ under it, they don’t need to prove their accusation – and to counter their accusation, I don’t just need to prove my character and conduct are good: I also need to prove that their decision was perverse or irrational.”
The government had promised that all applications for Indefinite Leave to Remain (ILR) that could potentially be refused under an immigration rule primarily designed to tackle terrorism, had been put on hold pending a review after the Guardian highlighted numerous cases in which the power was being apparently misused.
Caroline Nokes, the immigration minister, recently said the interim results of the review showed that the controversial paragraph 322(5) of the Immigration Rules was overwhelmingly only being used against migrants who had abused the system.
She also wrote to the Home Affairs select committee to say that the majority of cases that go to the second stage of judicial review are decided in the Home Office’s favour. But what she didn’t say, lawyers and MPs point out, is that the Home Office frequently agrees to reconsider cases and pay applicants’ legal costs just before the second stage is due to be heard.
“The transparency of the Home Office’s review can be ascertained by the fact that Caroline Nokes has gone on record, even before the review has fully concluded, to say that the Home Office’s conduct has been ‘broadly’ correct,” said Syed Naqvi, head of the immigration department at ITN Solicitors. “It reeks of a department in complete disarray,” he added.
Farotade’s life is now in limbo. His request for a second judicial review was refused because the judge said the Home Office didn’t have to justify their use of 322(5). He hasn’t been able to work since 21 July 2016. He can’t afford to challenge the ruling in the court of appeal.
“It is hard to express in words what I have been through,” he said. “The timing of the refusal with the death of my dear wife meant I could not leave the country to attend her funeral to pay my last respects in Nigeria. I still do not know the exact location my wife was buried.”
“Financially, I have been ruined by the cost of litigation and cost of living without a source of income,” he said. “Moving on with life has been made exponentially harder as a result of the refusal of my ILR stemming from the use of paragraph 322(5). I cannot live with the thought of being portrayed as a terrorist or a threat to a nation’s security in any way.”
A Home Office spokesperson said: “The courts have upheld our decision on Mr Farotade’s application.”
