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Bokqiu v Secretary of State for the Home Department
Factual and Procedural Background
The Appellant is an Albanian national born 10 August 1982. He entered the United Kingdom on 4 October 2000 and claimed asylum, presenting himself as an unaccompanied minor from Kosovo. His asylum claim was refused on 21 June 2001, but he was granted Exceptional Leave to Remain (ELR) on the basis he was believed to be a minor. The Appellant applied for further leave on 22 July 2003 and was later granted Indefinite Leave to Remain (ILR) on 5 January 2011. The ILR was revoked on 11 November 2020 on the basis it had been obtained by deception. The Appellant was convicted on 24 January 2022 of offences including production of cannabis and of being involved with criminal property and was sentenced to imprisonment. A deportation notice was issued in March 2022 and the Respondent refused the Appellant's human rights claim on 25 January 2023, making a deportation order. The First-tier Tribunal (FTT) (Judge Chohan) held the Appellant had not been lawfully resident in the UK for most of his life and was not socially or culturally integrated. On appeal the Upper Tribunal (Judge Hoffman) found no material error of law, concluding that leave obtained by deception could not be described as lawful residence for the purposes of section 117C of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), and endorsed the FTT's findings on integration and reintegration. Permission to appeal to the appellate court was granted on two grounds concerning (1) the legal effect of leave obtained by deception and (2) the calculation of the Appellant's period of lawful residence prior to ELR.
Legal Issues Presented
- Whether leave to remain obtained by deception (including false statements about nationality and age) constitutes being "lawfully resident in the United Kingdom" for the purposes of section 117C of the NIAA 2002.
- If leave obtained by deception could count as lawful residence, whether the Appellant had in fact been "lawfully resident" in the UK for most of his life (i.e. more than half his life) for the purposes of section 117C(4)(a).
Arguments of the Parties
Appellant's Arguments
- The Appellant submitted he was "lawfully resident" because he had been granted ELR and later ILR and, on a proper calculation of time, had been lawfully in the UK for over half of his life.
- The Appellant advanced written and oral submissions (presented by Attorney Jafferji and Attorney Broachwalla) challenging the view that leave obtained by deception could not count as lawful residence for section 117C purposes.
Respondent's Arguments
- The Respondent accepted the Appellant had ELR and ILR at material times but contended that those leaves did not amount to being "lawfully resident" because they had been obtained by criminal deception (false statements as to age and nationality), and obtaining leave by commission of a criminal offence does not equate to lawful residence.
- The Respondent maintained (represented by Attorney Tabori) that Parliament could not have intended that periods of leave obtained through deception should qualify a foreign criminal for Exception 1 to the strong public interest in deportation under section 117C.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236; [2017] 1 WLR 3118 | Considered the meaning of "unlawfully" for section 117B(4); held that "unlawful" refers to presence in breach of UK law rather than absence of a positive vested right of residence. | Referred to for the proposition that it is unnatural to describe a person's presence as "unlawful" where they are not breaching a legal obligation; used as context for distinctions between lawful presence and breach-based unlawfulness. |
| Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 211; [2018] 1 WLR 4004 | Held that a person permitted to remain by temporary leave was "lawfully resident" for purposes of paragraph 399A(a) of the Immigration Rules and section 117C(4)(a); "'lawful' ordinarily has the meaning 'permitted by law'. | Noted by the court as an authority that temporary leave can indicate lawful residence in some contexts; considered alongside other authorities addressing leave and lawful residence. |
| CI (Nigeria) v SSHD [2019] EWCA Civ 2027 | Leggatt LJ observed it "makes no sense" to treat someone present in breach of immigration laws and liable to removal as "lawfully resident" under section 117C(4)(a). | Relied upon to support the proposition that presence in breach of immigration law should not be characterized as lawful residence; used in contrast with cases where leave was validly held. |
| Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357; [2020] 4 WLR 154 | Considered in relation to paragraph 276B and 10 years "continuous lawful residence"; provided limited assistance as not addressing the specific issue in this case. | Noted but treated as of limited assistance because it did not deal with leave obtained by deception in the context of section 117C. |
| R (Hysaj) v Secretary of State for the Home Department [2017] UKSC 82; [2018] 1 WLR 221 | Held that citizenship granted as a result of false representations is not a nullity unless there was impersonation; citizenship may be removed under section 40 of the British Nationality Act 1981; reasoning reflected concerns about retrospective withdrawal and effects on third parties. | Referred to for the principle that status granted by false representations is not automatically void and for the limits on retrospective cancellation of status because of impacts on third parties. |
| NM (Zimbabwe) [2007] UKAIT 2; [2007] INLR 391 | Authority for the proposition that leave could not be cancelled retrospectively. | Used to support the point that the Appellant had leave at material times, notwithstanding later revocation. |
| HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6; [2003] 2 Lloyds Rep 61 | Recognised that fraud is "a thing apart" and that "fraud unravels all"; considered in context of construction of an exclusion clause. | Invoked to support the proposition that a status obtained by fraud cannot be equated to status lawfully obtained without deception; fraud vitiates transactions. |
Court's Reasoning and Analysis
The court began from agreed propositions: it was common ground that obtaining leave by deception is a criminal offence under section 24A(1)(a) of the Immigration Act 1971; that citizenship obtained by false representations is not automatically a nullity (R (Hysaj)); and that leave revoked for deception could not be cancelled retrospectively so the Appellant had leave at the material times (NM (Zimbabwe)).
The court addressed whether, despite having ELR and ILR, the Appellant was "lawfully resident" for section 117C of the NIAA 2002. The court identified and applied three principal reasons for concluding the Appellant was not lawfully resident while holding leave obtained by deception:
- First, a status obtained by the commission of a criminal offence cannot reasonably be described as "lawful". The court held it made no sense to characterise residence pursuant to a status obtained by criminal deception as "lawful" for section 117C purposes.
- Second, fraud is distinct in legal character and "unravels all"; a status obtained by fraud cannot be equated with one obtained without deception (drawing on HIH Casualty and General Insurance Ltd v Chase Manhattan Bank).
- Third, the conclusion accords with the purpose of Exception 1 in section 117C(4)(a), which recognises long and lawful presence; it is not reasonable to place weight on a private life founded on a lie and where there is no legitimate expectation of continuing presence.
The court also engaged with prior authorities addressing the meanings of "lawful" and "unlawful" residence (Akinyemi; SC (Jamaica); CI (Nigeria)), distinguishing contexts where temporary or lawful leave equates to lawful residence from the present case where leave was obtained by deception. The Upper Tribunal's view that courts will not lend aid to a person who founds their cause on an immoral or illegal act was accepted and applied. The court further concluded that, even if deceptive leave were counted, the Appellant had not been lawfully resident for most of his life because the period during which he held ELR/ILR amounted to 19 years and 4 months, less than "most" (interpreted as more than half) of his life at the time of hearing.
Holding and Implications
DISMISSED
Holding: The appeal was dismissed. The court held that leave obtained by deception did not amount to being "lawfully resident" for the purposes of section 117C of the NIAA 2002. The court also concluded it was unnecessary to determine the second ground because the first ground failed.
Implications: The direct effect is that the Appellant's challenge to the finding that he had not been lawfully resident for most of his life failed and the appeal was dismissed. The opinion did not purport to set aside the established authorities cited; it applied them to conclude that periods of leave procured by deception should not be treated as lawful residence for the purposes of Exception 1 to section 117C.
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