R Ylian Rushiti and Adriatik Laci v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeThe Hon. Mr Justice Popplewell
Judgment Date28 November 2014
Neutral Citation[2014] EWHC 3931 (Admin)
Date28 November 2014
CourtQueen's Bench Division (Administrative Court)
Docket NumberCases Nos: CO/12634/2012 and CO/12042/2012

[2014] EWHC 3931 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Rolls Building, Fetter Lane

EC4A 1NL

Before:

The Hon. Mr Justice Popplewell

Cases Nos: CO/12634/2012 and CO/12042/2012

Between:
The Queen on the application of Ylian Rushiti and Adriatik Laci
Claimants
and
Secretary of State for the Home Department
Defendant

James Collins ( Marsh & Partners) for the Claimants

Jacqueline Lean (instructed by Treasury Solicitor) for the Defendant

Hearing dates: 21 November 2014

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon. Mr Justice Popplewell The Hon. Mr Justice Popplewell

Introduction

1

The applicants Ylian Rushiti ("YR") and Adriatik Laci ("AL") are Albanian nationals formerly resident in Albania, who entered the UK illegally and made fraudulent but unsuccessful claims for asylum on the basis that they were Kosovars, had been exposed to Serbian atrocities, and were at risk of persecution if returned to Kosovo. They were subsequently granted indefinite leave to remain under the Defendant's legacy programme. They applied for Home Office travel documents, maintaining the deception that they were of Kosovan nationality. They subsequently made applications for naturalisation as British Citizens, in which they admitted to being Albanian and confessed to the earlier deception. The Secretary of State refused their applications on the grounds that their long history of intended deception in the asylum process and thereafter meant that they were not of good character, whether or not the deception had been material to the grant of indefinite leave to remain. They apply, with permission, to challenge the Secretary of State's decision. Their applications were heard together because they raise similar issues, although the factual circumstances of each case are not identical.

The Facts: YR

2

YR is a citizen of Albania where he was born on 28 April 1979. He claims to have arrived in the United Kingdom on 5 November 1999, although that is unconfirmed. On 9 November 1999 he claimed asylum on the basis that he was of Kosovan nationality.

3

On 18 July 2000 he was interviewed as to the circumstances giving rise to his claim for asylum. He maintained that he was of Kosovan nationality and born in Kosovo. He claimed that Serb authorities had beaten up and killed members of his family in his presence at their home in Kosovo. He claimed to have been a former member of the Kosovo Liberation Army ("KLA") and that he feared retribution from the KLA. He said that his family were still living in Kosovo. All this was untrue and was an elaborate fabrication designed to support a fraudulent asylum claim.

4

In a letter dated 18 July 2000 but sent on 12 September 2000 the Defendant refused YR's application for asylum. YR appealed to the Special Adjudicator. In mounting that appeal he maintained the pretence that he was of Kosovan nationality and had been resident in Kosovo. He supported his appeal with an account of atrocities which he said he had witnessed. He submitted reports from two medical practitioners certifying that he was suffering from post traumatic stress disorder which he procured by giving a fictitious account of atrocities he had witnessed and suffered, and their traumatic effect on him. This was an elaborate deception practised on the medical practitioners as well as the immigration authorities.

5

On 22 January 2003 the Special Adjudicator dismissed YR's appeal. He was deceived into finding that YR had suffered shocking and upsetting experiences during the ethnic cleansing period in Kosovo in 1998/1999. He dismissed the appeal on the basis that there was no continuing risk of persecution in Kosovo and there were adequate medical facilities there to deal with YR's post traumatic stress disorder.

6

On 13 June 2004 YR, through his solicitors, made a further application for leave to remain, invoking his rights under Article 3 and Article 8 of the European Convention on Human Rights. The application maintained the deception that he was a Kosovan national of Kosovan origin who had suffered torture and persecution by his own national authorities. The application again relied on the fraudulently procured medical reports as showing that he had suffered post traumatic stress disorder as a result.

7

The human rights based application was not dealt with promptly by the Defendant. On 10 November 2009, some 5 1/2 years after the application, YR's solicitors wrote seeking a decision.

8

On 12 April 2010 YR was sent the Defendant's standard letter pursuant to its legacy programme, which involved dealing with stale claims by either ordering removal or granting leave to remain. The letter invited YR to provide updated information.

9

On 19 April 2010 YR responded through his solicitors. His letter maintained the deception that he was of Kosovan nationality. The letter sought leave to remain on three grounds, namely long residence, a fear of returning to Kosovo, and a strong connection with the UK.

10

On 11 May 2010 the Defendant wrote to YR recording her decision to grant YR indefinite leave to remain ("ILR"). The letter said that this was being granted exceptionally outside the Immigration Rules and due to the length of YR's residence in the UK. The case notes indicate that length of residence was not regarded as the sole, or indeed sufficient, ground for the decision. The case notes record that it was understood that the basis of the application was the long outstanding Human Rights Act application. Length of residence was regarded as a factor but not sufficient of itself to justify leave to remain. The conclusion was that leave to remain should be granted both because of length of residence and because the human rights application had been left outstanding for so long.

11

On 27 May 2010 YR applied, through his solicitors, for a Home Office travel document. The application enclosed a declaration signed by YR with a statement of truth which declared that he was a Kosovan national born in Kosovo. The covering letter from the solicitors repeated those details and also said:

"Please note that our client is exempted from completing section 3, 4.1 and 4.2 of the application as there are no national authorities representing our client in the UK to enable him approaching them and apply for any national TD or passport."

12

This was untrue. As an Albanian national YR would have been required to apply to the Albanian Embassy for a passport or travel document. Accordingly the lie about YR's nationality was of central materiality to the application for the travel document. On 13 July 2010 YR was issued with a Home Office Travel Document.

13

On 19 October 2011 YR made an application, again through his solicitors, for naturalisation as a British Citizen. In this application he identified for the first time that he was an Albanian national and born in Albania. The application attached Albanian documents in support of those details. The letter making the application stated that he had applied for the travel document to visit his very ill father who was receiving intensive medical treatment and that the urgency rendered it impossible to apply for a passport from the Albanian Embassy in London. This too was untrue. In a subsequent letter of 25 September 2012 he said that the purpose was to visit his mother who was ill. No explanation has been offered for the falsity of this aspect of the application. Nor is there any documentary evidence to support this subsequent averment of his mother's illness. On 25 May 2012 YR's solicitors sent a chasing letter asking for a decision on the naturalisation application in which they suggested that the application needed to be determined urgently because YR's mother was imminently to have surgery for cancer. The attached medical report suggested that this was a very recent diagnosis, which does not therefore support the suggestion that she was seriously ill when the travel document was applied for.

14

On 12 September 2012 the Defendant refused YR's naturalisation application. The letter addressed to his solicitors stated:

"Re: Mr Ylian Rushiti Albania 28 April 1979

I refer to your client's application for British citizenship.

As you know from the guide that accompanied your client's application form, before reaching a decision on whether to grant naturalisation we must be satisfied that a number of statutory requirements have been met, one of which is the good character requirement. Character is not defined in law and a broad view is taken of an applicant's conduct and behaviour when deciding whether this requirement has been met. This includes the extent to which an applicant has been honest and co-operative in their dealings with the Home Office.

In this instance we recognise that you have brought to our attention that your client has knowingly employed a false nationality status since his arrival in the United Kingdom up until such time that he has submitted an application for naturalisation.

Because of this, the Secretary of State cannot be satisfied that any person who had intended to deceive the UK Border Agency by maintaining that he was a Kosovan national until he had acquired indefinite leave to remain in the United Kingdom can be regarded to be of "Good Character" for the purposes of naturalisation, as Mr Rushiti then applied for British citizenship on 21 October 2011 and stated that his true place of birth was not Kosovo, but Drashovice, Albania. He has maintained a long standing...

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2 cases
  • Upper Tribunal (Immigration and asylum chamber), 2021-10-11, DC/00091/2019 & DC/00127/2019
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