Case No. UKUT-00175-(IAC)

: When considering an individual’s character and conduct, regard must be given to whether; • 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. Caseowners must also take account of any evidence of deception practiced at any stage in the process, attempts to frustrate the process (for example, failure to attend interviews, supply required documentation), whether the individual has maintained contact with the UK Border Agency, as required, and whether they have been actively pressing for resolution of their immigration status. The caseowner must assess all evidence of compliance and non compliance in the round. The weight placed on periods of absconding should be proportionate to the length of compliant residence in the UK. For example, additional weight should be placed on lengthy periods of absconding which form a significant proportion of the individual’s residence in the UK.’ 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. Legacy decision 28. 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. 29. 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: ‘Is the applicant of good character? YES Details (Include details of any exclusion decision, any concerns about their character, conduct or associations or any threat to national security) There is no evidence to suggest that Mr Matusha has been involved in activities that engage the refugee convention exclusion clauses, and has no criminal records. PNC returned clear. Has the applicant complied with UKBA? YES Details (Please detail evidence e.g. not attending an interview, failure to report, failure to co operate (sic) with re-documentation and periods of absconding) The applicant’s reporting was set up for 18/08/03, applicant failed to show. However, the UKBA failed to initiate any absconder action against the applicant during or after that period.’ 30. 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: ‘Decision: (After assessing all the evidence in the round briefly explain your decision) Mr Matusha has accumulated over a 10 year residence in the UK (sic). The UKBA has delayed enforcing removal of the applicant, since his ARE date of 24/07/01, adding to his length of residence in the UK. Although the applicant absconded, and failed to attend his reporting events, the UKBA failed to initiate any absconder action against the applicant during, or after that period. The applicants (sic) length of residence, is the compelling factor regarding this case, in justifying Mr Matusha remaining in the UK.’ 31. 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. Naturalisation application 32. 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. 33. 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. 34. The respondent refused the application for naturalisation on 03 October 2013 with reference to the good character requirement: ‘As you are unable to provide any such documentary evidence of your birth in Kosovo, we remain of the opinion (despite your correspondence of the 24 September 2013) that you have not been open and honest in your dealings with the Home Office and as a result your application has been refused as we do not consider that you meet the good character requirement for naturalisation.’ NTL application 35. 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. 36. 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. 37. 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: ‘6. Upon arrival to the UK the smuggling gangs referred us to a law firm where the Albanian translator for that law firm registered us as Kosovan nationals. The group and I were told that if we disclosed to anyone that we were Albanians then they would immediately get us deported. I was in constant fear and under immense pressure from the smugglers. 7. 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. 8. 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.’ 38. 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’. Revocation decisions 39. 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’). 40. 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: 76.