Gjon Matusha, R (on the application of) v The Secretary of State for the Home Department

This judgment considers the respondent’s power to revoke Indefinite Leave to Remain (ILR) under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002 (as amended) (NIAA 2002) and the associated policy guidance, Revocation of Indefinite Leave (Version 4.0) (19 October 2015), in the case of a person who was granted ILR under the Legacy Programme i.e. under an operational programme.

The applicant seeks to challenge the respondent’s decision dated 15 August 2019 to revoke ILR granted on 12 August 2010.

Due to the continued need to take precautions to prevent the spread of Covid 19 the hearing took place in a court room at Field House with counsel appearing by video conference and with the facility for others to attend remotely. We were satisfied that this was consistent with the open justice principle, that the parties could make their submissions clearly, and that the case could be heard fairly by this mode of hearing.

It is necessary to set out the background to the case in some detail because it is important to understand the context in which the decisions to grant ILR and then to revoke it were made.

The applicant is a citizen of Albania who was born on 04 May 1980. He entered the UK illegally on 14 September 1999 with the assistance of an agent. He was 19 years old on arrival in the UK.

The applicant applied for asylum the following day, claiming that he was born in Kosovo on 04 May 1982. He accepts that he made false claims about his nationality and date of birth.

The policy framework in place at the time is not disputed. The widespread persecution of Kosovar Albanians in the years running up to and during the conflict that took place in 1998 and 1999 led to a rare situation whereby the respondent recognised ethnic Albanians from Kosovo as refugees or granted them temporary protection solely on account of their ethnicity . By the time the Immigration Appeal Tribunal considered the position in Dyli (Protection – UNMIK – Arif – IFA – Art.1D) Kosovo CG* [2000] UKIAT 00001 the situation in Kosovo had changed, as had the respondent’s policy. Hostilities ceased on 10 June 1999 on the same day that the United Nations Security Council passed resolution S/RES/1244. The NATO led Kosovo Force (KFOR) entered Kosovo and the United Nations Interim Administration Mission in Kosovo (UNMIK) was created. In light of these developments the respondent suspended consideration of asylum claims from the Republic of Yugoslavia (as it then was) but continued to grant Exceptional Leave to Remain (ELR) to asylum seekers who applied before 24 March 1999. On 13 September 1999 the Home Secretary announced a return to the usual position whereby claims would be considered on their individual merits.

The policy relating to claims by Kosovar Albanians had only just changed when the applicant entered the UK. It seems unlikely that he would have been aware of the change when he claimed asylum, and even if he was, there was still a far better chance of being granted leave on humanitarian grounds than if he had claimed asylum as an Albanian national. The most likely motive for the first deception was to increase his chance of being granted leave to remain at a time when many genuine Kosovar Albanians had been recognised as refugees or were being granted ELR. The most likely motive for the second deception was to take advantage of the respondent’s policy to grant limited leave to remain to unaccompanied asylum seeking children (UASC).

The asylum application was not considered promptly. The claim was refused on 27 March 2001, by which time the situation in Kosovo had stabilised. Even according to the false age given by the applicant he did not benefit from the UASC policy. It is said that an appeal was dismissed on 24 July 2001 and his appeal rights became exhausted thereafter.

The applicant failed to report to the respondent when required. It appears that he was listed as an absconder. The respondent’s GCID notes from August 2010 record that no absconder action was taken. The decision letter claims that an enforcement visit did take place. Whether absconder action was taken or not, the applicant remained in the UK in the knowledge that he had no leave to remain and was liable to removal.

In July 2006 the respondent instigated the Case Resolution Programme, more commonly known as the Legacy Programme. We will not repeat the history here because details of the programme were outlined in the Administrative Court decisions of Hakemi & Others v SSHD [2012] EWHC 1967 (Admin) and Geraldo & Others v SSHD [2013] EWHC 2763 (Admin). In Geraldo , the broad purpose of the programme was summarised as follows:

A report prepared by the Independent Chief Inspector of Borders and Immigration, John Vine, in 2012 (Footnote: ¹) was ‘highly critical’ of the programme. Some of the findings were summarised in Geraldo as follows:

Ms Naik referred to other aspects of the Vine report. She submitted that the nature of the programme meant that the respondent could not use the mere fact that the applicant was an absconder or that there was a long period of non-compliance due to Home Office delay to say that he should not have been granted ILR. The purpose of the programme was to resolve a large number of cases of failed asylum seekers. The respondent was prepared to ‘overlook adverse behaviour’ when considering cases under the programme. The evidence pointed to ‘flexible consideration’ of the character and conduct assessment under paragraph 395C of the immigration rules. She said that the Vine report showed that there was no coherent policy on how to approach the assessment, but the report indicated that a delay of about 6-8 years was likely to be sufficient to consider granting leave. At 5.88 the report set out some of the criteria used in the decision-making process. They are consistent with the guidance outlined in Chapter 53, which was the guidance caseworkers followed when considering a case under paragraph 395C. Figure 13 of the Vine report listed some of the assessment indicators as follows:

Criminal convictions over threshold?

Any activities meriting exclusion from the UK?

Agency delay has contributed to a period of residence over 4 years?

If evidence of previous non-compliance, is this outweighed by length of residence and recent compliance?

Any evidence of connections to the UK?

Limited prospect of enforcing removal?

Although the Vine report indicates that in a large numbers of cases considered under the Legacy Programme people were granted leave, and that on some occasions serious non-compliance was either missed or not given sufficient weight, it is clear from some of the figures outlined in the report that the programme was not an amnesty. The number of refusals was not insignificant. We were not referred to any evidence giving the overall statistics for grants and refusals, but Figure 12 of the Vine report took a sample of cases from April 2011 to February 2012. At the beginning of that period refusals amounted to 21% of the total although the figure dropped to 9% by the end of that period. In Geraldo , the court noted the following figures:

The Legacy Programme did not operate as an application for leave to remain. Those who were eligible for consideration under the programme were supposed to be invited to complete a questionnaire for Home Office caseworkers to consider. In this case the GCID notes recorded that the file was sent ‘to Layby’ on 01 October 2005. They record no further action until 16 June 2009 when the note stated:

The hearing bundle contains a copy of an undated letter from the applicant. It is reasonable to infer from the content that it was likely to be the letter dated 29 December 2008 referred to in the GCID notes. The applicant outlined the false nationality and date of birth given in his original asylum claim. The opening paragraph of the letter suggests that the applicant instigated the approach to the Home Office although it is likely that he would have been eligible for consideration under the Legacy Programme in any event.

The applicant enclosed a completed questionnaire and other supporting documents. The fact that the letter repeated the false identity in itself might not be that controversial had he then gone on to admit the deception, because those were the details under which he was known to the respondent. However, the applicant went on actively to maintain the deception by making a false representation that he still feared to return to Kosovo. The letter said:

There is no copy of the questionnaire to assess what other statements the applicant might have made, but it is clear from the cover letter that he continued the deception in, what he considered to be, an application for leave to remain under the Legacy Programme.

The Legacy Programme did not purport to set out any new substantive rights or a new basis for leave to remain. It was an operational exercise carried out within the existing framework of the immigration rules albeit with the broad objective of reducing the backlog of unresolved cases. The applicant was granted ILR on 12 August 2010. At that date, decisions were made within the framework of paragraph 395C of the immigration rules, which stated:

The policy guidance in place at the relevant time was ‘Chapter 53 – Extenuating Circumstances’, which was last updated on 26 July 2010 (archived on 09 August 2010). The policy provided guidance to caseworkers on how to assess a case under paragraph 395C. At 53.1.1 the guidance began with general instructions on how to apply paragraph 395C.

At 53.1.2 the next section set out guidance about the factors to be considered under paragraph 395C. It began by making clear that it was a holistic assessment.

A person’s age would be considered as well as their length of residence in the UK. The guidance recognised that, in general, the longer a person had lived in the UK, the stronger their ties would be. More weight would be attached to the length of time a child spent in the UK compared to an adult. The guidance stated that residence accrued as a result of non-compliance with the requirements of immigration control would weigh against an individual. There was also guidance on what weight should be given to a delay in decision-making when it led to the strengthening of private and family life ties to the UK. The assessment of non-compliance and delay in decision-making was focussed through the lens of the operational objectives of the Legacy Programme. However, the programme was not an amnesty and not all negative factors were waived. It is clear that the personal history of an applicant, including evidence of deception, still formed part of the assessment. The guidance went on to state:

There is evidence of criminality that meets the Criminal Casework Directorate (CCD) threshold; or

The individual has been convicted of a particularly serious crime (below the CCD threshold) involving violence, a sexual offence, offences against children or a serious drug offence; or

There are serious reasons for considering that the individual falls within the asylum exclusion clauses; or

It is considered undesirable to permit the individual to remain in the UK in light of exceptional circumstances, or in light of their character, conduct or associations, or the fact that they represent a threat to national security.

It is clear that even if the assessment was viewed through the operational objective of the Legacy Programme, the nature and extent of any negative factors still formed part of an evaluative assessment of whether it was appropriate to grant leave to remain.

Negative factors relating to a person’s immigration history might range in scale and seriousness. At the lower end of the scale a person might enter the UK with leave to enter, overstay their visa, but not carry out any other unlawful activities. Further up the scale a person might enter illegally and work without permission using false documents. Others may deliberately abscond. Others may actively falsify information and documents to support an application for leave to remain. Even more serious are those who become involved in fraud and serious criminality relating to the immigration system or who are convicted of other criminal offences.

Similarly, a range of circumstances might occur when considering the case of a failed asylum seeker. At the lower end of the scale might be a genuine claim which fails because the evidence shows that the person does not have a well-founded fear of persecution. Another person might come from a refugee producing country with the core of a genuine claim but embellish certain aspects of their account in a misguided attempt to improve their chances of protection. Others may gloss over the manner in which they travelled to and entered the UK because it involved a journey through a safe third country or assistance from organised criminal networks.

At the more serious end of the scale are those who deliberately put forward what they know to be a false protection claim in a fraudulent attempt to obtain leave to remain in the UK. This might include a fabricated account, but could include lies about a person’s nationality or age. The reason why this type of behaviour is so serious is because it exploits provisions designed to protect the most vulnerable and those in need of protection. A knowingly false claim to be a national from a refugee producing country undermines the integrity of the Refugee Convention and other international protection mechanisms. If false nationality claims are made in large numbers it might give rise to suspicion of genuine applicants from that country, making it more difficult for them to obtain protection. Policies and public services designed to support UASC are undermined by those who lie about their age to gain a greater level of support or a period of limited leave to remain to which they are not entitled. Public resources are wasted investigating and processing fraudulent claims.

In light of the above we find that Ms Naik’s suggestion that the Legacy Programme was a ‘concessionary scheme’ is inaccurate. The operational objective was to resolve the large backlog of cases involving outstanding asylum claims and failed asylum seekers. When an assessment under paragraph 395C was focussed through that objective, in many cases less weight was given to certain acts of non-compliance and more weight may have been given to the length of time a person had been in the UK than usual. However, the character and conduct of a person was still a relevant factor in assessing a case under the Legacy 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 respondent retained discretion to refuse to grant leave under paragraph 395C in appropriate cases.

As is the usual format for such letters, the decision to grant ILR under the Legacy Programme dated 12 August 2010 did not give reasons.

The GCID notes for the relevant period provide an indication of the reasons given by the caseworker for deciding to grant ILR. A note dated 12 August 2010 included a series of standard questions for consideration under paragraph 395C. The caseworker then inserted relevant information relating to the case. The notes summarised the application history. In a section relating to delay, the caseworker was asked to note whether in the case of a single applicant a delay in decision making may have contributed to residence of more than 6-8 years. The notes record that the applicant had resided in the UK for over 10 years. In relation to his character and conduct the notes said:

The notes went on to record that there was no barrier to his removal to ‘Serbia’. When assessing the strength of the applicant’s connections to the UK the notes indicate that the decision-maker proceeded on the assumption that he was a ‘Serbian male’ who ‘arrived in the UK over 10 years ago’. The notes summarised the decision as follows:

The notes make clear that the caseworker made the decision based on the false information given to them by the applicant when he first claimed asylum. The decision was made in ignorance of a relevant fact, that the applicant lied about his nationality and age when he claimed asylum in 1999, and continued to maintain the deception in relation to his application for consideration under the Legacy Programme.

On 17 July 2013 the applicant applied to naturalise as a British citizen maintaining his false identity. The respondent made enquiries in Albania. Checks disclosed that he was likely to be an Albanian national born in Shkoder on 04 May 1980. The respondent wrote to the applicant on 10 September 2013 providing the outcome of the enquiries and gave him an opportunity to submit proof of his claimed identity.

The decision letter dated 15 August 2019, which is the subject of this challenge, stated that the applicant responded to the Home Office request for information on 24 September 2013 with a letter from the Embassy of the Republic of Kosovo Consular Mission in London. The letter stated that he could only obtain a birth certificate and other registry documentation in Kosovo. This letter does not appear to be in the bundle, but it does not seem to be disputed that he provided evidence from the Kosovan Consulate in London. 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.

The respondent refused the application for naturalisation on 03 October 2013 with reference to the good character requirement:

The applicant met his partner in 2014. On 08 September 2015 he applied for a ‘No Time Limit’ (NTL) stamp to be placed in an Albanian passport issued in his true identity on 17 April 2015. He also submitted a current Albanian ID document, his Albanian birth certificate, and a copy of the UK travel document issued in his false identity which showed a number of visits to Albania.

The applicant prepared a witness statement in support of the application. Although the statement was presented as a declaration of his past ‘mistakes’ and stated that he wanted to ‘take responsibility for my actions’, in reality, the lies that the applicant told in his original asylum claim had already been exposed by the respondent in 2013. The motivation for the applicant to apply for an NTL to be endorsed in his Albanian passport was his desire to marry and start a family.

The applicant explained that he was young and impressionable when he arrived in the UK. He asserted that he had escaped a country that was coming out of a period of instability and ‘in many respects was worse than Kosovo at the time’. He and many others sought to leave Albania for ‘a more stable future and a safer way of life’. He travelled with a group of Albanians with the assistance of smugglers. His statement went on to give the following explanation:

It was then on the 15 ^th September 1999 that I went to Croydon and claimed Asylum as a Kosovan National. This was a decision that I have lived with for the next 16 years and it has not been easy to bear this burden and deny my own nationality. There hasn’t been a day that I haven’t regretted my decision but as a young man it became more and more difficult to tell the truth and almost felt like I have to keep the pretence up for fear of repercussions.

I cannot continue living my life like this and want to start a family and settle down. I want to start a new chapter of my life with the right set of values and morals which I want to teach my children. I want to tell them the difference about right, wrong and building a platform for them to find their own identity and follow their path in life. Therefore in order for me to teach my children, first I must make amends for my mistakes and take responsibility for my actions.’

The respondent refused the application in a decision dated 13 July 2016. She outlined the applicant’s immigration history and his repeated use of deception relating to his identity. The respondent concluded that the applicant knowingly practised deception to obtain ILR under the Legacy Programme. She refused to endorse the passport because it was in a different identity to the one in which the applicant was granted leave. The respondent retained his Albanian passport ‘pending further investigations into his immigration status in the United Kingdom’.

Having known about the deception since 2013, and retained the applicant’s passport pending further investigation in 2016, the respondent took no further action until 08 November 2018 when a decision was made to revoke ILR under section 76 NIAA 2002 (‘the first revocation decision’).

Section 76 was amended by the Immigration Act 2014 (IA 2014) to remove the requirement that a person could not be removed ‘for legal or practical reasons’. The parties agreed that at the date of the relevant decision the applicable wording was as follows:

The respondent’s policy, Revocation of Indefinite Leave (Version 4.0) (19 October 2015) states at 1.3 that one of the policy intentions behind revocation is to ‘instil public confidence in the immigration system by ensuring any abuse is tackled and dealt with accordingly’. Paragraph 3.2 says the following:

Section 4 of the guidance sets out four ‘Reasons for not Revoking Indefinite Leave to Remain’.

Section 6 of the policy provides guidance on the ‘Process for Referring and Considering Cases’, including the following guidance about deception cases:

been granted leave as a refugee and it is subsequently established that they are not the nationality they claimed to be;

been granted leave on the basis of marriage and it is subsequently established that the marriage was a sham or that the letter of support was forged or the spouse is not a British citizen/settled in the UK or the person had not disclosed that the marriage had already ended in divorce;

used different or multiple identities;

submitted forged documents such as bank statements, employment references;

failed to declare that they have criminal convictions, including those outside of the UK particularly where these would have arguably led to a different outcome on the application;

failed to declare that they have been involved in war crimes, crimes against humanity or genocide; or

failed to declare that they are a member or supporter of a proscribed organisation.’

Soon after the first revocation decision the applicant made further representations in response to a section 120 notice. By this time, he had a partner and a child who was a British citizen. On 05 February 2019 the respondent granted 30 months leave to remain on the 10-year route to settlement. Dissatisfied with this response, the applicant sought to challenge the decision to revoke ILR by way of an application for judicial review filed on 06 February 2018. The claim settled by consent on 24 June 2019. The respondent undertook to make a further decision.

The respondent maintained the decision to revoke ILR in a further decision dated 15 August 2019 (‘the second revocation decision’). The decision set out what was now known about the applicant’s immigration history including the details of his prolonged and repeated deception regarding his identity. She considered the further representations made on behalf of the applicant in a letter dated 19 July 2019. The applicant argued that the main reason why he was granted ILR was because he had lived in the UK for 10 years at the date of the decision and because no absconder action was taken.

The decision letter noted the submissions, but considered that the deception outweighed the accrual of 10 years’ residence. He was granted ILR on the assumption that he was a Kosovan national who had entered the UK as a minor. If the facts of the deception about his identity had been known ‘the decision maker’s consideration would not have been so lenient in your favour’. Further enquiries revealed that absconder action was taken against him on 26 October 2001 following a failed attempt by the Eaton House Starring Team to locate him at his last known address. In light of this information, it was considered that the applicant only accrued the 10 years’ residence which underpinned the decision to grant ILR because of his failure to report and his decision to abscond. Even if he had been located at the time, the fact that he had given a false nationality and date of birth would have frustrated efforts to remove him.

The respondent considered the submissions made about the revocation policy. Although she accepted that the deception occurred more than five years before the decision to revoke ILR, it was considered that the ‘deception exercised was sufficient enough for revocation to be appropriate, your deception outweighed this policy’. Having considered the case six years after the deception came to light it was considered that the nature of the deception still weighed in favour of revocation. Despite the prolonged and repeated nature of the deception she noted that there was little evidence of regret. She concluded that the applicant’s conducted was ‘so serious that it warrants the revocation of your status’.

The respondent went on to consider the representations made about the impact that it would have on the applicant and his family. The respondent noted that the applicant was only able to obtain status for his partner and child because of the initial deception. It was not necessary to give further consideration to this issue because he had been granted limited leave to remain because of his personal circumstances in the UK.

Permission to bring judicial review proceedings was granted by Upper Tribunal Judge Pitt at a hearing on 22 October 2020 except in relation to a technical point relating to the status of the first revocation decision.

The applicant identified the following issues for determination:

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 NIAA 2002 was made out.

Whether the decision was in accordance with the revocation policy.

Whether the revocation policy is unlawful.

Whether the decision to revoke ILR was reasonable and proportionate.