In another reminder that British citizenship can be refused on the basis of past dishonest conduct we have the case of R (on the application of Rushiti & Anor) v Secretary of State for the Home Department [2014] EWHC 3931 (Admin). This one dates back a few months but I’m afraid I only just found it in my drafts folder. It involves two linked cases, both of which are further examples of Albanians entering the UK and pretending to be Kosovar, eventually obtaining immigration status then applying for British citizenship.
Many of these people have since settled down, gotten jobs and had children. The cases put me in mind of the Mayor of Casterbridge, haunted and brought down by a terrible act long ago.
When I first started work as an immigration lawyer it was at Oakington detention camp in 2000, when many asylum seekers were from Kovoso. Or, at least, they said they were. I originally drafted this post just as I was reviewing Eric Fripp’s The Law and Practice of Expulsion and Exclusion from the United Kingdom and was rather surprised to learn that there were zero recorded instances of citizenship deprivation on the basis of dishonesty between 1983 and 2009, but in 2009 there were 30 such decisions. All or almost all are said by the authors to be Albanian/Kosovar cases. Since then, the numbers seem to have been steadily increasing.
The deprivation of citizenship — the exclusion of perceived undesirables from our polity — is one of the most important trends of our time.
Facts
The original deception in the case of Rushiti was appalling. It is the type of conduct that undermines the protection of genuine refugees and leads sceptics and cynics to nod their heads knowingly:
He supported his appeal with an account of atrocities which he said he had witnessed. He submitted reports from two medical practitioners certifying that he was suffering from post traumatic stress disorder which he procured by giving a fictitious account of atrocities he had witnessed and suffered, and their traumatic effect on him. This was an elaborate deception practised on the medical practitioners as well as the immigration authorities.
These lies were accepted by the judge, but the appeal was dismissed anyway on the basis that it was now safe to return. Mr Rushiti applied again for leave to remain, this time on human rights grounds. Nothing then happened for over five years, until his solicitors chased up the application and Mr Rushiti was eventually granted Indefinite Leave to Remain through the Legacy programme. He maintained the lie that he was Kosovar throughout. Once eligible to apply for British citizenship, though, he revealed that he was in fact Albanian.
The deception in the linked case of Laci was slightly less gross, but it was still described by the judge as “an elaborate deception fabrication to support a fraudulent claim for asylum”. The application was refused and an appeal lodged but then abandoned.
Seven years later, Mr Laci applied for ILR under the Legacy programme. He continued to use his false name but in his application, made with the help of solicitors, stated that he was Albanian. It seems no-one noticed this at the Home Office as he was granted ILR but the covering letter and ID documents stated that he was Kosovar. The solicitors did not act to correct this misapprehension. The same solicitors then assisted him to apply for a travel document, this time stating that he was Kosovar. This application was granted, again on the false basis that the applicant was from Kosovo.
Eventually, Mr Laci applied for British citizenship. He revealed the deception in his application and relied on his true identity.
Both the applications were refused on the grounds that the applicants did not meet the good character requirement because of their past deception of the authorities.
Materiality of deception
In both these cases, the deception was in some ways not obviously been material to the grant of citizenship. The reason for grant of ILR, which was the doorway to applying for citizenship, was long and unlawful residence in the UK. The Home Office’s own policies at the time (which since then have been changed) seemed to support this analysis. The policies stated that a good character refusal would be triggered where the past deception or fraud was “directly material to the acquisition of immigration leave or to the application for citizenship.”
Mr Justice Popplewell was unimpressed. He held that the Home Office was, despite these policies, entitled to refuse the applications on the basis of the good character requirement not being satisfied. The Nationality Instructions are only guidance, not firm rules, and anyway the starting point should not be whether deception was material but whether the applicants were of good character:
As for the argument that AL and YR obtained no benefit from the deception, there are two answers. First, whether any benefit is derived has little relevance to the central question of good character. Deliberately lying in an attempt to obtain a benefit is as much evidence of dishonesty and bad character when the attempt fails as when it succeeds. The impact of the attempt on an assessment of good character is not to be measured by whether the fraudulent purpose is successful or the hoped for benefit obtained. Secondly it is not right to say that YR and LA derived no benefit from their false asylum claims because they were ultimately unsuccessful. Had the deception not been practised, they would have been liable to immediate removal. Whilst the deception was being practised they were asylum seekers who were entitled to remain pending the determination of their claims (and potentially to accommodation and other support under sections 95 to 98 of the Immigration and Asylum Act 1999). Their deception gained them the benefit of being here for that period without risk of removal. Moreover their deception in relation to the travel document applications, which was central to those applications, resulted in the travel documents being issued, which would not have occurred but for the deceit.
In short, whether or not their deception succeeded, the deception showed that the applicants were of poor rather than good character.
Popplewell J also refers to the similar case of R (Kurmerkaj) v Secretary of State for the Home Department [2014] EWHC 1701 (Admin) in which a similar conclusion was reached (not available on BAILII as far as I can see).
Had the applicants “come clean” at the time of the application for ILR and admitted their deception at that point, they might conceivably have still been granted ILR at that time. Times have changed, though, and 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) shows that ILR applications in these circumstances will also now be refused on the basis of past deception and ILR gained on that basis may even be revoked (see blog post Past deception to obtain Indefinite Leave to Remain may lead to status being revoked).
If a migrant has previously lied about his or her identity or claim for asylum, he or she will now face great difficulties obtaining settlement and even then will face perhaps even greater hurdles naturalising as a British citizen.
