Case No. UKUT-00175-(IAC)

Issue 1: materiality 51. Ms Naik argued that the respondent failed to place the grant of ILR within the proper context of the Legacy Programme. The Vine report made clear that the there was no consistency in decision making. The main factors were length of residence and a flexible approach to the character and conduct requirements, which overlooked negative factors such as absconding. Although she accepted that character and conduct were material to an assessment under the Legacy Programme, Ms Naik argued that only more serious matters such as criminal conduct, activities that engaged the exclusion clauses or threats to national security were sufficient to justify refusal. In support of this submission she relied on the decision making criteria identified in the Vine report (see [13] above) and referred to the factors relating to character and conduct in Chapter 53 (see [22] above). 52. She went on to argue that this case was far removed from the situation in R (Abbas) v SSHD [2017] WLR(D) 61, which the respondent relied upon. In that case it was alleged that the applicant used a false TOEIC certificate to obtain an initial grant of leave to remain as a spouse and was subsequently granted ILR. The deception formed part of the ‘necessary building blocks’ leading to the application for ILR. It was implicit that he was asserting that he had two years previous lawful residence. There was a causal link between the deception and the application for ILR. Ms Naik submitted that the way the Legacy Programme operated was quite different. The applicant’s skeleton argument went so far as to say that the fact that the applicant lied about his nationality and age was ‘wholly irrelevant’ to the criteria for granting ILR under the Legacy Programme. The main reason for the decision was the applicant’s length of residence. At the time, the fact that he had absconded was not deemed sufficiently serious to refuse leave to remain. 53. We do not agree that the applicant’s repeated and longstanding deception relating to his nationality and age would not have been material to the assessment under the Legacy Programme had the respondent been aware of it at the time. The Legacy Programme did not operate as an amnesty. Nor was there any clear policy for granting leave save for the usual criteria considered under paragraph 395C and Chapter 53 albeit those criteria were assessed through the operational objective of reducing the large backlog of cases. 54. 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 (see [20] above). It also made clear to caseworkers that the assessment was holistic (see [21] above). 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 also take into account ‘any evidence of deception practiced at any stage of the process’ (see [22] above). 55. The Vine report suggests that there were no clear criteria for a grant of leave under the Legacy Programme. We accept that the report indicates that when paragraph 395C was viewed through the operational objective of the programme length of residence was likely to be a relevant factor. In practice, non-compliance at the lower end of the scale, such as overstaying or even absconding (as in this case), might have been given slightly less weight than usual. After all, the purpose of the programme was to resolve a large number of cases involving people who were remaining in the UK without leave. 56. We accept that there may be some distinction between the nature of an application for ILR under the immigration rules, where an applicant would have to satisfy a series of specific requirements, and the broad evaluative assessment that was undertaken under paragraph 395C for the purpose of the Legacy Programme. It might be easier to identify a material connection between the deception and a specific element of the immigration rules. However, that is not to say that no causal connection could be identified from a deception that the guidance made clear should form part of the evaluation under paragraph 395C. The more serious the negative factor the more likely it would have been to affect the assessment. 57. The applicant’s case is premised on the reasons that were given for granting leave to remain under the Legacy Programme, but does not properly acknowledge that the decision was made on the basis of incorrect and incomplete information. When the applicant submitted the questionnaire he actively deceived the respondent by asserting that his removal to Kosovo would breach his human rights. But for this continued deception the decision maker would have had the full picture and could have taken into account the original deception as part of the overall assessment. 58. We have already noted that negative factors relating to a person’s immigration history are likely to range in scale and seriousness. In our assessment the knowingly false claim to be from Kosovo was at the more serious end of the scale (see [26] above). The respondent was prepared to overlook the period of absconding, but if that factor was combined with the fraudulent assertions made in his asylum claim it is likely that greater weight would have been given to public interest considerations. The ongoing deception relating to his nationality and age clearly would have been a relevant consideration. 59. We note that the fourth claimant in Hakemi , Mr Mustafaj, was an Albanian national who falsely claimed to be from Kosovo. Similar to this applicant, Mr Mustafaj remained in the UK after his appeal rights became exhausted and had been living in the UK for 12 years at the date the decision was made under the Legacy Programme. The difference between Mr Mustafaj and this applicant is that Mr Mustafaj disclosed the previous deception to the respondent before the decision was made. The deception was sufficiently serious to justify refusal of leave to remain. This is further evidence to indicate that the serious nature of a deception of this kind was likely to have a material impact on the exercise of discretion under the Legacy Programme. 60. Given that deception can include a failure to disclose a material fact, we conclude that there was a direct link between the applicant’s failure to disclose the lies he told about his nationality and age when he sent the questionnaire 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 may have been properly regarded as sufficiently serious to justify refusal. In light of what is now known about the applicant’s immigration history, it was within a range of reasonable responses to the evidence for the respondent 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 these reasons we conclude that it was open to the respondent to invoke section 76(2)(a) NIAA 2002 on the ground that leave was obtained by deception. Issue 2: whether the decision was in accordance with the revocation policy 61. The respondent uncovered the deception during the course of the application for naturalisation in 2013. In 2016 she retained the applicant’s Albanian passport pending further investigation, but did not take steps to revoke ILR until 08 November 2018, just over five years after the applicant last sought to maintain the deception. Six years had passed by the time she reviewed the situation and issued the second revocation decision in 2019. 62. The arguments relating to the second issue were imprecise. The applicant’s skeleton argument took a rather scattergun approach, asserting that the respondent ‘did not exercise her discretion fairly or lawfully or in accordance with her policy or give proper reasons for her decision’. In submissions, Ms Naik did not appear to dispute that the wording of Section 4.1 was sufficiently flexible to allow for discretion to be exercised (see [42] above). 63. The wording of Section 4.1 emphasises that the length of time spent in the UK ‘may’ constitute a reason for not revoking indefinite leave. The example given at the bottom of that section is also phrased in non-mandatory terms. It says that ILR ‘would not normally be revoked’ where the deception in question occurred more than five years ago. Ms Naik argued that the wording gives rise to a presumption that ILR would not be revoked in such circumstances. 64. We agree that the wording of the policy gives rise to a presumption that ILR will not normally be revoked after five years, but it allows sufficient flexibility for the respondent to exercise discretion to revoke ILR in appropriate cases. We bear in mind that in each case considered under section 76(2)(a) it is a condition precedent that leave to remain was obtained by deception. In light of this, the mere fact of a deception is not likely to be sufficient, taken alone, to depart from the presumption. The nature, extent and significance of a deception and other negative factors are likely to inform whether it is appropriate to depart from the usual practice outlined in the policy. If the respondent decides to depart from the usual practice she should take into account relevant considerations and give adequate and rational reasons for doing so. 65. The applicant’s argument on this point appears to be either a reasons challenge or a challenge to the rationality of the decision to depart from the usual practice contained in the policy. The decision letter outlined his immigration history in some detail. It was open to the respondent to take into account the serious nature of the initial deception as well as its repeated and long standing nature. She considered the applicant’s further submissions. On page 4 it is clear that the respondent took into account the fact that the applicant was granted ILR under the Legacy Programme. The letter quotes the reasons for granting leave contained in the GCID notes (see [30] above). The respondent found that ‘your deception outweighs your actions to have accrued over 10 years residency in the UK’. She went on to explain that ILR was only granted under the Legacy Programme because the respondent was not aware of all the facts. Having considered the full extent of his immigration history the respondent concluded ‘your conduct is so serious that it warrants the revocation of your status’. She outlined the requirements of section 76(2) and considered section 4.1 of the revocation policy. Whilst recognising that the deception occurred more than five years ago, she concluded that the deception was sufficiently serious to depart from the policy. 66. The applicant disagrees with the decision, but in our assessment it contains no public law error. The respondent took into account relevant considerations, including the context in which he was granted ILR. We have already explained why the serious nature of the deception could plainly have made a material difference to the assessment under the Legacy Programme. The respondent referred to the relevant law and policy. Her finding that the nature and extent of his deception was sufficiently serious to depart from the usual practice was within a range of reasonable responses to the evidence. We conclude that the respondent gave adequate and rational reasons with reference to relevant evidence and the correct legal framework. Issue 3: lawfulness of the policy 67. The applicant’s skeleton argument indicated that the third issue was encompassed by amended grounds 4 and 5. Ground 4 argued that the respondent failed to consider the exercise of discretion properly and failed to take into account the fact that the applicant was granted ILR under a ‘concessionary policy’. We have already found that (i) the Legacy Programme was not a concessionary policy; and (ii) the decision letter considered the fact that the applicant was granted ILR in the context of the Legacy Programme. It is difficult to see how ground 4 made any wider point about the lawfulness of the policy. Ground 5 posited a wider argument relating to the policy, asserting that there was no provision to determine whether the deception was material to the grant of ILR or to take into account the nature of a grant of leave under a ‘concessionary policy’. 68. Section 2.1 of the policy sets out the provisions of section 76 NIAA 2002. Section 3.1 also makes clear that section 76(2) gives the respondent the power to revoke ILR when a person obtained leave by deception. Section 4.2 states that the decision maker must assess the nature, extent and significance of the information which was either incorrectly supplied or omitted and emphasises that ‘there should be clear and justifiable evidence of deception and the deception was material to the grant of leave’. Section 4.3 recognises that ILR should not normally be revoked when the decision maker had the relevant information but overlooked it or considered it and granted leave in any event. 69. Rightly, the point was reformulated in the applicant’s skeleton argument at least to acknowledge the wording of Section 4.2. By then the applicant sought to argue that the wording of Section 4.2 of the policy was insufficient to guide decision makers to the need to find a direct causal link between the deception and the grant of leave. By the time the matter came to hearing Ms Naik made clear that she was not launching a full frontal challenge to the lawfulness of the policy nor was attempting to argue a point that might have wider application. In light of this, it is unclear whether she was still pursuing the third issue, and if she was, what argument she relied on. 70. When the wording of Section 4.2 is considered in the context of the whole policy it is clear that caseworkers are directed to the relevant legal framework. The need to find a causal link between the deception and grant of leave is also sufficiently clear. The Legacy Programme was not a ‘concessionary policy’. The programme operated within the confines of the existing legal framework. Any grant of leave was considered on a discretionary basis having conducted an evaluative assessment of the facts of each case. The policy makes clear that there needs to be an individual assessment of the circumstances of each case, which should include consideration of the context in which leave was granted. 71. We recognise that it might be easier to establish a causal link between deception in an application for ILR made with reference to specific criteria contained in the immigration rules than in a case where ILR was granted following an exercise of discretion. However, the wording of the policy is sufficiently flexible to cover discretionary grants of leave. Decision makers are directed to ensure that there is clear and justifiable evidence of deception and that the deception was material to the grant of leave. Whether it is appropriate to exercise the power to revoke ILR will depend on the facts and evidence in each case and should be justified with adequate and rational reasons. In so far as the third issue still seemed to be before the Upper Tribunal for determination, we conclude that there is no merit in the argument that the revocation policy is unlawful. Issue 4: proportionality 72. The applicant’s skeleton argument suggested that the fourth issue was encompassed by the amended ground 4, but aside from a general assertion that the decision not to exercise discretion under the policy was irrational, that ground did not particularise any argument with reference to proportionality as a public law issue, nor did it contain any of the arguments now put forward on the applicant’s behalf, which appeared for the first time in the skeleton argument. The respondent’s skeleton argument stated that permission was not granted to argue this point, and in any event, the decision was not disproportionate. 73. We agree that this issue, as now formulated in the skeleton argument, is quite distinct from the point made in the grounds. Permission has not been granted to argue it. The fourth issue was not pleaded in the original grounds, and as explained below, raises issues that were not put forward in the further representations made to the respondent. The courts have repeatedly emphasised the need for procedural rigour in judicial review claims: see R (Talpada) v SSHD [2018] EWCA Civ 841 and R (Spahiu) v SSHD [2018] EWCA Civ 2604; [2019] Imm AR 524. However, in so far the issue of proportionality might touch on the reasonableness of the decision to depart from the presumption that ILR would not normally be revoked if more than five years have passed since the deception, and in light of the fact that both parties made submissions on the point at the hearing, we will make findings. 74. Section 76 NIAA 2002 sets out the respondent’s power to revoke ILR if leave was obtained by deception. Section 1.3 of the revocation policy sets out a rational objective, which is to instil public confidence in the immigration system by ensuring any abuse is tackled and dealt with accordingly. The objective is sufficiently important to justify limitation of fundamental rights in appropriate cases. Whether the power is exercised in a rational and proportionate way will depend on the context and the facts in each case. A decision maker should consider whether, having regard to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community: see discussion in cases such as Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39, [2013] HRLR 30 and Pham v SSHD [2015] UKSC 19, [2015] Imm AR 950. 75. Ms Naik argued that maintaining the decision to revoke ILR, and instead granting discretionary leave to remain on a ten year route to settlement, was disproportionate. The applicant has lived in the UK for 20 years. By the time he is eligible to reapply for ILR he will have spent 30 years in the UK. The applicant’s child is a British citizen because he was born at a time when the applicant had ILR. Any future children he might have would not enjoy this benefit. Aside from the applicant’s length of residence and the potential effect on non-existent children the applicant identifies no other meaningful disadvantages to having limited leave to remain rather than ILR. 76. Given that the applicant was granted limited leave to remain on 05 February 2019 it would have been open to counsel to make these points in the further representations made to the respondent on 19 July 2019. They were not. The representations explained the applicant’s personal circumstances, argued that ILR was not obtained by deception (Issue 1), and that revocation would be contrary to the policy (Issue 2). Under the heading ‘Compelling/compassionate circumstances’ the representations referred to the explanation given for his behaviour in the witness statement submitted with the NTL application (without further comment) and asked the respondent to note that the applicant has significant ties to the UK. No submissions were made relating to the proportionality of granting limited leave of the kind raised for the first time in the skeleton argument in these proceedings. The second revocation decision could hardly be criticised when these arguments were not even put to the respondent to consider. 77. The applicant’s skeleton argument asserts that, had he been granted limited leave to remain rather than ILR under the Legacy Programme in 2010 he would have qualified for ILR by 2017 in any event. This argument has no merit. First, the argument was not developed in oral submissions. Second, it is based on the assumption that the applicant would have been granted some form of leave when it is possible that had the facts been known he might have been refused. Third, there is no evidential basis for this theoretical scenario. The history outlined in Geraldo indicates that until the change in policy in July 2011 people were granted ILR under the Legacy Programme and not limited leave. Indeed, the effect of the change in policy from granting ILR to limited leave was at the heart of the challenge in Geraldo . 78. No copy of the 2013 decision refusing naturalisation appears to be included in the bundle. It is unclear whether the respondent proposed to take any action in relation to the deception at that stage. However, the applicant was put on notice that his immigration status would be reviewed when he was refused an NTL in 2016. Although no explanation has been provided for the further delay before the first revocation decision was made, during that time, and since, the applicant can have been under no illusion that his status was under review. Delay has not be put forward as an argument, but we conclude that any delay in taking action to revoke ILR is not sufficiently serious or prolonged, in itself or taken with the other factors, to render the decision disproportionate. 79. We have already found that the respondent’s decision to depart from the practice normally followed in cases where the deception took place more than five years ago was within a range of reasonable responses to the evidence given the serious and prolonged nature of the deception. 80. When the deception was exposed, the applicant continued to assert that he was from Kosovo. It was only when it was in his interest to admit the lie because he wanted to start a family that he decided to be candid. He said: ‘I must make amends for my mistakes and take responsibility for my actions’. Until now, he has faced no meaningful consequence for his actions. 81. The applicant benefited from a serious and prolonged deception. But for the deception he would not have accrued a long period of residence, his partner would not have been granted leave to enter, and his child would not have been registered as a British citizen. The evidence indicates that the applicant has made good use of the opportunities afforded to him in the UK. He works as a photographer and runs several businesses. The respondent took into account the strength of his ties to the UK and recognised that removal would interfere with his right to private and family life in a sufficiently grave way to amount to a disproportionate breach of Article 8 of the European Convention. The applicant’s ILR was revoked because of the public interest in ensuring that abuse is tackled, but he was granted limited leave to remain because it was disproportionate to remove him. 82. The applicant can continue to live in the UK with his partner and child and is on a ten year route to settlement. The fact that it will be inconvenient to apply for further leave to remain and that he will have to pay fees to do so is clearly proportionate in the circumstances of this case. The argument about perceived disadvantage to future children is even weaker. But for the deception his child would never have been entitled to British citizenship. As a matter of policy the respondent does not deprive children of British citizenship because of the actions of their parents, but that does not oblige the respondent to confer similar advantage on any future children that the applicant might have. 83. Accordingly, in so far as the arguments relating to proportionality touch either on the rationality of the decision to revoke ILR or might engage an argument with reference to Article 8 of the European Convention, the challenge fails. Conclusion 84. The respondent gave adequate and rational reasons to explain why, had the deception been known, it would have made a material difference to the outcome of the decision to exercise discretion under the Legacy Programme. As such, the condition precedent for exercising her power under section 76 NIAA 2002 was satisfied. 85. The respondent’s revocation policy is sufficiently flexible to allow her to consider whether ILR granted on a discretionary basis was obtained by deception. The policy emphasises that there must be clear and justifiable evidence of deception and that the deception was material to the grant of leave. The nature, extent and significance of the deception will form part of the assessment of whether it is appropriate to revoke ILR. 86. The respondent gave adequate and rational reasons to explain why she had decided to depart from the usual practice not to revoke ILR when the deception occurred more than five years ago. The decision was within a range of reasonable responses to the evidence given the serious and prolonged nature of the deception. 87. In view of the serious nature of the deception, and the fact that the applicant has been granted limited leave to remain, the decision to revoke ILR is not disproportionate. ~~~~~ 1 An inspection of the UK Border Agency’s handling of legacy asylum and migration cases (March-July 2012)