Leave obtained by deception does not count as “continuous lawful residence”

In a fairly unsurprising decision, the Upper Tribunal has said that indefinite leave to remain obtained by deception and subsequently revoked cannot be counted as “continuous lawful residence” for the purposes of an application for indefinite leave to remain based on ten years’ residence. The case is R (on the application of He) v Secretary of State for the Home Department (Paragraph 276B(i), Lawful residence) [2024] UKUT 00417.

The headnote says:

For the purposes of paragraphs 276A(b)(i) and 276B(i) of the immigration rules, the leave to remain relied upon to satisfy the requirement for ten years’ lawful residence must have been lawful, that is, not obtained by deception or otherwise in breach of immigration laws.

Background

The applicant is a Chinese national who arrived in the UK on 5 August 2006 and claimed asylum using a false name. He was granted indefinite leave to remain on 29 March 2017 under the false name as part of the legacy backlog clearance exercise. That leave was revoked on 7 August 2019 on the grounds of deception, for using the false identity.

The applicant was granted leave to remain on the basis of his family life on 30 April 2021 valid until 29 October 2023, as he has a British citizen child. On 6 April 2022 he applied for indefinite leave to remain based on his long residence in the UK under paragraph 276B of the immigration rules (this route has since been moved to its own appendix).

That application was refused on 13 September 2022 and again on 21 December 2022. The first refusal letter said:

… although you may have been resident in the UK for a period exceeding 10 years, which includes you relying on a period of SoS Immigration bail from 7 Aug 2019 until your subsequent grant of leave on 30 Apr 2021, information available to the Home Office confirms that any leave you gained and time spent in the UK prior to you being granted family private life leave to remain on 30 Apr 2021 was via deception…

The refusal letter referred to the revocation decision and also said that the applicant would not have been granted indefinite leave to remain to begin with had the Home Secretary been aware of the use of deception. As deception had been used in a previous application, the application was rejected under the general grounds for refusal in paragraph 9.8.3A of the immigration rules.

Following a pre action letter, the supplementary refusal was sent acknowledging that this was a discretionary ground for refusal and reasons were then set out explaining why that discretion would not be exercised in the applicant’s favour.

Both the refusals were challenged by judicial review.

The judicial review

There were three grounds to the challenge. The first was that the leave held by the applicant between the grant of indefinite leave on 10 February 2011 and its revocation on 7 August 2019 formed part of the continuous lawful residence requirement.

The second ground was that paragraph 9.8.3A of the rules did not apply to the application as it was an application for indefinite leave to remain and not “for entry clearance, permission to enter or permission to stay”. The third ground was that it was irrational to refuse the application on suitability grounds when the application for leave on family grounds had not been refused on that basis.

On the first ground, it was argued on behalf of the applicant that the revocation decision did not render the period of leave null and void, but merely ended it meaning that it remained “lawful” leave until revoked on 7 August 2019. Hysaj v Secretary of State for the Home Department [2017] UKSC 82 was cited as authority for the position that nullity of citizenship is appropriate only where there has been impersonation of another person instead of by using a false identity they have created. It was argued that this was analogous to indefinite leave to remain and so the applicant held lawful leave until revoked.

It was submitted on behalf of the Home Secretary that the language of the relevant paragraphs of the rules “must be interpreted sensibly and in context, and with a view to the purpose of the rule”. It was also submitted that Hysaj was addressing a different point and the issue in question here was the proper interpretation of the words “continuous lawful residence”. The Home Secretary argued that “residence” is unlawful under section 24A of the Immigration Act 1971 where the leave to remain relied on has been obtained by deception.

Unsurprisingly, the Upper Tribunal concluded that:

When interpreted purposively and in context, lawful residence must, as Mr Biggs submits, exclude leave obtained by deception, and therefore unlawfully. Any other interpretation of the rule would be absurd. It would be to treat someone who is otherwise in the UK unlawfully and is potentially guilty of a criminal offence as being lawfully resident in the UK.

This meant that the applicant was unable to rely on the period of indefinite leave to remain that he held before it was revoked.

The Upper Tribunal also agreed with the Home Secretary on the second ground, that it was “simply misconceived” to say that an application for indefinite leave to remain was not an application for “permission to stay”. The tribunal said “There is no qualitative distinction, or difference in kind, between limited leave and indefinite leave under the 1971 Act. They are both forms of leave to remain.”

On the third point, the Upper Tribunal said:

It would as Mr Biggs submits be absurd if paragraph 9.8.3A did not apply to those seeking ILR given that the reasons underling the rule apply with greater force to those seeking indefinite leave to remain than to those seeking merely limited leave to remain. It makes no sense whatsoever that those seeking ILR pursuant to paragraph 276B of the Immigration Rules should be able to rely upon deception used in a previous application for leave, when those seeking a less permanent status cannot.

The judicial review was dismissed.

Conclusion

I can’t really imagine any other outcome to this application. I think the bigger question will end up being the extent to which the applicant will be troubled by the general grounds for refusal again in future, once he has actually acquired ten years of continuous lawful residence.