R (on the Application of Matusha) v Secretary of State for the Home Department (Revocation of ILR Policy)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Canavan |
| Judgment Date | 17 June 2021 |
| Neutral Citation | [2021] UKUT 175 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 175 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Canavan UTJ
Ms S Naik QC and Ms H Foot instructed by Alexander Shaw Solicitors, for the Applicant;
Mr B Seifert instructed by the Government Legal Department, for the Secretary of State.
Bank Mellat v Her Majesty's Treasury (No.2) [2013] UKSC 39; [2014] AC 700; [2013] 3 WLR 179; [2013] 4 All ER 533
Dyli (Protection – UNMIK – Arif – IFA – Art. ID) Kosovo CG* [2000] UKIAT 00001; [2000] Imm AR 652; [2000] INLR 372
Geraldo, Aroun and Iqbal v Secretary of State for the Home Department [2013] EWHC 2763 (Admin)
Hakemi and Others v Secretary of State for the Home Department [2012] EWHC 1967 (Admin)
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591; [2015] 3 All ER 1015; [2015] Imm AR 950; [2015] INLR 593
R (on the application of Abbas) v Secretary of State for the Home Department [2017] EWHC 78 (Admin); [2017] 4 WLR 34; [2017] WLR(D) 61
R (on the application of Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841
Secretary of State for the Home Department v R (on the application of Spahiu) [2018] EWCA Civ 2604; [2019] 1 WLR 1297; [2019] Imm AR 524
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragaph 395C
Nationality, Immigration and Asylum Act 2002, seciton 76
Human rights — Article 8 of the ECHR — family and private life — proportionality — immigration — Home Office policies and concessions — Legacy Programme — leave to remain — revocation of indefinite leave to remain — deception material to obtaining leave — section 76 of the 2002 Act — revocation policy not unlawful
The Applicant, a citizen of Albania, was born in May 1980. He entered the United Kingdom illegally on 14 September 1999. He applied for asylum the following day, falsely claiming that he was born in Kosovo in May 1982. In the light of the widespread persecution of Kosovar Albanians during the conflict that took place in 1998 and 1999, the Secretary of State for the Home Department recognised ethnic Albanians from Kosovo as refugees or granted them temporary protection solely on account of their ethnicity. When hostilities ceased, the Secretary of State announced on 13 September 1999 a return to the usual position whereby claims would be considered on their individual merits. The Applicant's asylum claim was refused in March 2001, by which time the situation in Kosovo had stabilised. His appeal was dismissed in July 2001. He failed to report to the Secretary of State when required and was listed as an absconder.
In July 2006 the Secretary of State instigated the Legacy Programme. The operational objective was to resolve the large backlog of cases involving outstanding asylum claims and failed asylum seekers. Decisions were made within the existing framework of the Immigration Rules HC 395 (as amended), in particular paragraph 395C. Although in many cases less weight was given to certain acts of non-compliance and more weight might have been given to the length of time a person had been in the United Kingdom than usual, the character and conduct of a person was still a relevant factor in assessing a case under the programme. The programme did not operate as a general amnesty regardless of a person's behaviour. The nature and extent of any negative factors were relevant to the exercise of discretion. Although many people who were liable to removal were granted leave to remain, the Secretary of State retained discretion to refuse to grant leave under paragraph 395C in appropriate cases.
In late 2008 and early 2009, the Applicant wrote to the Secretary of State informing her that he wished to apply for leave to remain under the Legacy Programme. He enclosed supporting documents in which he maintained the false information regarding his nationality and date of birth. In a letter dated 12 August 2010, the Secretary of State granted the Applicant indefinite leave to remain (“ILR”) under the Legacy Programme. It was clear from the caseworker notes on file that the decision was made in ignorance of the fact that the Applicant had lied about his nationality and age when he claimed asylum in 1999 and had continued to maintain the deception in relation to his application for consideration under the Legacy Programme.
In July 2013 the Applicant applied to naturalise as a British citizen, maintaining his false identity. The Secretary of State informed the Applicant that enquiries had disclosed that he was likely to be an Albanian national born in May 1980 and requested proof of his claimed identity. Even when presented with evidence of his true identity the Applicant continued to maintain that he was Kosovan and tried to explain away his inability to produce evidence of the fact. Accordingly, in October 2013, the Secretary of State refused the application with reference to the good character requirement.
The Applicant met his partner in 2014. In September 2015 he applied for a ‘No Time Limit’ (NTL) stamp to be placed in an Albanian passport issued in his true identity. His motivation for applying for the NTL was his desire to marry and start a family. In a witness statement in support of the application, the Applicant stated that he regretted providing false information and wished to take responsibility for his actions. In July 2016, the Secretary of State refused the application in the light of the Applicant's immigration history and his repeated use of deception relating to his identity. She also retained his Albanian passport ‘pending further investigations into his immigration status in the United Kingdom’.
In November 2018, the Secretary of State decided to revoke the Applicant's ILR under section 76 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Thereafter, the Applicant made further representations in response to a notice under section 120 of the 2002 Act. By that time, he had a partner and a child who was a British citizen. In February 2019 the Secretary of State granted 30 months leave to remain on the ten-year route to settlement. The Applicant challenged that decision on judicial review. On reconsideration, the Secretary of State maintained the decision to revoke ILR in a further decision dated 15 August 2019. The letter noted that, although under the relevant Home Office policy guidance (Revocation of Indefinite Leave (Version 4.0) (19 October 2015)) ILR would not normally be revoked where the deception in question occurred more than five years ago, the prolonged and repeated nature of the Applicant's deception warranted revocation.
In October 2020 the Upper Tribunal granted permission to apply for judicial review of the revocation decision. The issues considered were, first, whether the Applicant's deception as to nationality and age would have been directly material to the grant of ILR, such that the condition precedent in section 76(2)(a) of the 2002 Act was made out; secondly, whether the decision was in accordance with the revocation policy; thirdly, whether the revocation policy was unlawful; and fourthly, whether the decision to revoke ILR was reasonable and proportionate.
Held, refusing the application:
(1) The Applicant's repeated and longstanding deception relating to his nationality and age would have been material to the assessment under the Legacy Programme had the Secretary of State been aware of it at the time. The guidance made clear that a caseworker must consider all known relevant factors, both positive and negative, and emphasised that the list of factors set out in paragraph 395C was not exhaustive. Although the guidance identified serious criminality, activities justifying exclusion, and threats to national security as negative factors that should be given weight, the same section also made clear that caseworkers must take into account ‘any evidence of deception practiced at any stage of the process’. There was a direct link between the Applicant's failure to disclose the lies he told about his nationality and age and the grant of leave to remain under the Legacy Programme. But for the continued deception the case would have been assessed with reference to negative factors that might have been properly regarded as sufficiently serious to justify refusal. It was within a range of reasonable responses to the evidence for the Secretary of State to conclude that, had his true identity been known at the time, ‘the decision maker's consideration would not have been so lenient in your favour’. For those reasons, it was open to the Secretary of State to invoke section 76(2)(a) of the 2002 Act on the ground that leave was obtained by deception (paras 51 – 60).
(2) The revocation policy guidance was sufficiently flexible to allow the Secretary of State to consider whether ILR granted on a discretionary basis was obtained by deception. Section 4.1 of the policy contained a presumption that ILR ‘would not normally be revoked’ when the deception in question occurred more than five years ago. That part of the policy was framed in non-mandatory terms. Because it was a condition precedent to the exercise of the power under section 76(2)(a) that a person obtained leave by deception, the mere fact of a deception was not likely to be sufficient, taken alone, to depart from the presumption. The nature, extent and significance of a deception and other negative factors were likely to inform whether it was appropriate to depart from the usual practice outlined in the policy. The Secretary of State retained discretion to depart from the presumption but should give adequate and rational reasons for doing so. In the instant case, the Secretary of State's decision contained no public law error. She took into account...
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