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Past deception to obtain Indefinite Leave to Remain may lead to status being revoked

Past deception to obtain Indefinite Leave to Remain may lead to status being revoked

The case of Huang & Ors, R (on the application of) v Secretary of State for the Home Department (“No Time Limit” Transfer: Fraud) (IJR) [2015] UKUT 662 (IAC) arises from the provision of false or incorrect identity information by asylum seekers who were initially refused asylum but who were then never removed and were later granted status under the Legacy amnesty backlog clearance programme. 

All the joined cases involved Chinese nationals and there seems little doubt that Chinese asylum seekers were routinely advised by corrupt lawyers and agents to use a false identity. I came across one such case recently where the gentleman was represented by the notorious firm Titus Miranda, which seems to have specialised in this type of misconduct. Such asylum claims were often refused but the failed asylum seekers remained in the UK. Eventually, many sought regularisation under the Legacy exercise. Rather than coming clean at this time and risking

(a) being refused for providing false information earlier and

(b) having to go through the existentially challenging process of proving the new, correct identity belonged to the same person as the earlier false identity

many such asylum seekers simply maintained the pretence of the false identity. Some say they were advised to do so by lawyers and agents, perhaps in order to keep things simple. Settlement in the form of Indefinite Leave to Remain was then granted in the false identity.

Once status had been granted, the false identity became a problem. It was impossible to sponsor family members using the false identity, for example, and important other records may well have existed in the correct identity. Some applied for transfer of the settlement visa, a “No Time Limit” or “NTL” visa vignette, into a new passport in their true identity. I have heard that some such applications were initially successful. That is no longer the case, though, and the Home Office is refusing such applications and, latterly, where applications are made the Home Office now revokes ILR on the basis of obtaining leave by deception.

Thus it was in these joined cases. All but one involved deliberate deception. The NTL transfer applications were refused, but no consideration was initially given to revocation of the underlying ILR. This was inconvenient for those affected because they still had Indefinite Leave to Remain but had difficulty proving it. They did at least still have the security of the status at that point; no longer. The judicial review challenge having been brought, the Home Office has unsurprisingly decided to pursue revocation in these particular cases.

The official headnote:

1. The Upper Tribunal has jurisdiction to determine a claim challenging a decision not to transfer a “No Time Limit” (NTL) vignette to a person’s new travel document.

2. In cases where a decision of that sort is said to be motivated by a perception that the person obtained leave by deception, the Secretary of State should rely on the process available to her for cancelling leave.

Pursuing litigation seems to have been counterproductive for the claimants in this this case, who now stand to lose their immigration status. Had legal action not being pursued they might have retained their status, albeit in their false identity and that they would have faced future difficulties proving that status.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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