Albert Bokqiu v Secretary of State for the Home Department

Lord Justice Dingemans, Senior President of Tribunals : Introduction and issues

1. This appeal raises a short but interesting point about the interpretation of section 117 C of the Nationality, Immigration and Asylum Act 2002 ( NIAA 2002 ), and in particular whether someone who had obtained leave to remain by lying about their nationality and age was, by virtue of that leave, “lawfully resident in the United Kingdom” for the purposes of the section.

2. The case on behalf of the appellant Albert Bokqiu is that he was “lawfully resident” because he had been granted Exceptional Leave to Remain (ELR) and then Indefinite Leave to Remain (ILR) and has, on a proper calculation of time, been lawfully in the United Kingdom for over half of his life. The respondent Secretary of State for the Home Department accepts that Mr Bokqiu did have ELR and ILR at material times, but submits that this did not mean that he was “lawfully resident” in the UK. This was because when he entered the UK and claimed asylum he claimed to be a minor, when he was already aged 18 years, and claimed to be from Kosovo, when he was from Albania. The making of those false statements was a criminal offence, and leave obtained by the commission of a criminal offence does not mean that a person is “lawfully resident”. Factual background

3. Mr Bokqiu is a national of Albania who was born on 10 August 1982. He entered the UK on 4 October 2000 when he was aged 18 years 3 months. Mr Bokqiu claimed asylum on the basis that he was an unaccompanied minor from Kosovo. The claim for asylum was refused on 21 June 2001, but as it was believed he was a minor, he was granted ELR until 10 August 2003. The period of time between the claim for asylum on 4 October 2000 and the grant of ELR on 21 June 2001 is the period of time addressed by the second ground of Mr Bokqiu’s appeal.

4. Mr Bokqiu applied for further leave to remain on 22 July 2003. He was granted ILR on 5 January 2011. The delay in the grant of ILR between 2003 and 2011 was not explained in the evidence before the court.

5. Mr Bokqiu met his British wife in 2007, and they subsequently married. They have two children, born in 2010 and 2012. On 17 January 2013 Mr Bokqiu made an application for naturalisation using the false details that he had given to the Secretary of State when he had claimed asylum. This application was refused on 8 February 2013 on the basis that Mr Bokqiu did not meet the good character requirements. It seems that this was because Mr Bokqiu had failed to declare that he had been cautioned on 25 September 2012. It was not apparent from the materials before the court why Mr Bokqiu had been cautioned.

6. On 11 November 2020, Mr Bokqiu’s ILR was revoked on the basis that it had been obtained by deception. It appears, from the letter dated 15 July 2020 from the Secretary of State to Mr Bokqiu giving notice that the Secretary of State was considering revoking Mr Bokqiu’s LTR, that on 18 September 2019 the Home Office carried out checks which revealed that Mr Bokqiu was an Albanian national who had been born on 10 August 1982. Mr Bokqiu was then served with notice that he was liable for administrative removal to Albania. No enforcement action was taken against Mr Bokqiu.

7. On 24 January 2022, Mr Bokqiu was convicted of being concerned in the production of cannabis, a controlled Class B drug, and of being involved with criminal property contrary to the Proceeds of Crime Act 2002 . Mr Bokqiu was sentenced to 3 years 2 months’ imprisonment for producing the cannabis, and 21 months’ imprisonment concurrent for the Proceeds of Crime offence. Mr Bokqiu did not appeal the conviction or sentence.

8. On 10 March 2022, Mr Bokqiu was issued with notice of deportation under the UK Borders Act 2007 , and the decision was served on him on 14 March 2022. Mr Bokqiu’s legal representatives made a human rights claim on his behalf. This was on the basis that Mr Bokqiu had established a family and private life in the UK.

9. In a decision dated 25 January 2023, the Secretary of State refused Mr Bokqiu’s human rights claim, and a deportation order was made against him. Section 117 C of the NIAA 2002

10. Section 117 C of the 2002 Act states: “Article 8: additional considerations in cases involving foreign criminals (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C's life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.” The decision of the First-tier Tribunal (FTT)

11. By a decision dated 25 April 2024 FTT Judge Chohan (the FTT judge), sitting in the FTT (Immigration and Asylum Chamber), held that Mr Bokqiu had not spent most of his life lawfully in the UK as his leave was obtained through deception, and so that leave did not count as lawful residence. The FTT judge also held that Mr Bokqiu was not socially or culturally integrated in the UK. Although he spoke fluent English, was not dependent on public funds, and was being supported instead by his family, those factors were outweighed by his conduct. His period of incarceration was funded by the taxpayer, and his sustained deception against the state, together with his criminal offending, demonstrated a clear lack of social and cultural integration.

12. The FTT judge found that while Mr Bokqiu might face difficulties on return to Albania, he could continue his private life. Mr Bokqiu had parents and siblings in Albania and it was clear that he valued the culture and customs of the country. There was no evidence to suggest difficulties which would prevent or seriously inhibit Mr Bokqiu from integrating into Albanian society.

13. The FTT judge found that it would not be unduly harsh on Mr Bokqiu’s wife and two children if he were to be deported. Although one child had ADHD and ASD and might experience some deterioration in mental health, there was limited evidence of any significant adverse impact on the family. During Mr Bokqiu’s imprisonment, his wife cared for the children with support from her mother and stepfather, and similar support remained available. The family could maintain contact with Mr Bokqiu, and his wife and children could visit or relocate to Albania if they wished. Proceedings in the Upper Tribunal

14. Mr Bokqiu appealed to the Upper Tribunal (Immigration and Asylum Chamber). So far as is material Mr Bokqiu contended that the FTT judge had erred in law in finding that Mr Bokqiu was not lawfully resident in the UK for most of his life, by finding that Mr Bokqiu was not socially integrated into the UK, and by finding that there were no very significant obstacles to him reintegrating into Albania. In a decision dated 15 October 2024 Upper Tribunal Judge Hoffman (the UT judge) found no material errors of law. The UT judge agreed that there could be no retrospective revocation of leave to remain, but held that this did not mean that a person who had obtained leave by deception could be described as having “lawful residence”.

15. The UT judge held that Mr Bokqiu’s leave was not lawful because obtaining leave to enter or remain by deception is a criminal offence under section 24 A(1)(a)(i) of the Immigration Act 1971 . Therefore, while Mr Bokqiu had been granted leave by the respondent, he had not obtained it lawfully. The UT judge held that it could not have been Parliament’s intention, when enacting section 117 C(4)(a), that a foreign criminal should be able to rely on periods of leave obtained through deception so as to benefit from an exception to the strong public interest in their deportation. The UT judge also held that no court would lend its aid to a person who founds their cause of action upon an immoral or illegal act.

16. In any event even if the leave did count as lawful residence, Mr Bokqiu had not been lawfully resident for most of his life. Mr Bokqiu entered the UK at age 18 years and was 41 years old at the time of the hearing. Although he held ELR and later ILR from June 2001 to November 2020, this period totalled only 19 years and 4 months. He therefore had not been lawfully resident in the UK for most of his life for the purposes of section 117 C(4)(a). “Most” has been interpreted to mean more than half.

17. The UT judge held the FTT judge did not err in making the assessment of Mr Bokqiu’s integration in the UK or the absence of significant obstacles to his reintegration in Albania. The UT judge held that the FTT judge had engaged properly with the medical evidence relating to one of the children. Grounds of appeal

18. Permission to appeal was granted on two grounds: (1) that the Upper Tribunal erred in its interpretation of whether obtaining leave by deception can be interpreted as lawful residence; and (2) that the Upper Tribunal’s calculation of the appellant’s lawful residence in the UK was flawed. This ground addresses Mr Bokqiu’s status after his claim for asylum and before the grant of ELR.

19. It was common ground that the second ground of appeal would not arise unless Mr Bokqiu succeeded on the first ground of appeal. This is because even if Mr Bokqiu were right on the points about calculation of leave, he would not be able to show that he had been lawfully resident for most of his life (a phrase which has been interpreted to mean more than half of his life).

20. The main issue between the parties in the submissions remained whether a person with leave, even if the leave had been obtained by deception, was “lawfully resident” in the UK for the purposes of section 117 C of the NIAA 2002 . I am grateful to Mr Zainul Jafferji and Mr Huzefa Broachwalla on behalf of Mr Bokqiu and Mr Tabori on behalf of the Secretary of State for their helpful written and oral submissions. Leave by deception and lawful residence

21. There have been a number of cases which have considered the meaning of “lawful residence” in different contexts. It was common ground that none of the previous cases had dealt with the situation in this case, although both Mr Jafferji and Mr Tabori relied on various dicta from the cases. In Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236 ; [2017] 1 WLR 3118 ( Akinyemi ) the Court of Appeal considered the word “unlawfully” for the purposes of section 117 (B)(4) of the NIAA 2002 . There was an appeal against a decision to deport an appellant aged 33 years who had been born in the UK to foreign national parents who were not settled in the UK at the time of his birth. The appellant had been granted temporary admission following an application for asylum. The appellant in that case could have become a British citizen but had not applied to do so, and then lost that ability when the Immigration, Asylum and Nationality Act 2006 came into force because he had a record of criminal offending and did not satisfy the good character requirement of section 1(4). The Court of Appeal held that the appellant had not breached any legal obligation by being in the UK and his presence could not sensibly be described as ‘unlawful’. Underhill LJ, with whom the Master of the Rolls and Davis LJ agreed, stated at paragraph 40 that the reference to a person being in the UK ‘unlawfully’ in section 117 B(4) was a reference to their presence being in breach of UK law, rather than to their not having a positive vested right of residence. As a matter of ordinary language, it was unnatural to describe a person's presence as ‘unlawful’ when they were not breaching any specific legal obligation and when there was no legal right to remove them. The appeal was allowed and the case remitted to the Upper Tribunal.

22. In Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 211 ; [2018] 1 WLR 4004 ( SC (Jamaica) ) the Court of Appeal held that a person who was permitted to remain in the UK by temporary leave was “lawfully resident” for the purposes of paragraph 399A(a) of the Immigration Rules and section 117 C(4)(a). The court said ‘lawful’ ordinarily has the meaning ‘permitted by law’ and if a person is permitted to remain by temporary leave that should be sufficient.

23. SC was considered in CI (Nigeria) v SSHD [2019] EWCA Civ 2027 (CI (Nigeria)) . The appellant was a 27-year-old foreign national who came to the UK with his mother as an infant. The family’s asylum claims were refused, and they were served with a notice of deportation order which was never enforced. They were later granted indefinite leave to remain. The appellant’s mother abused him as a child and he was taken into care at the age of 15. He had no family or other ties with Nigeria. As a young adult, he committed several crimes, and in 2014 the Secretary of State made the deportation order on the basis that he had been convicted of a criminal offence for which he had been sentenced to a period of imprisonment of at least 12 months. Leggatt LJ said “it makes no sense to treat someone who is present in the UK in breach of immigration laws and liable to removal – for example, because (as in the present case) they have remained in the UK after a limited leave to enter or remain has expired – as “lawfully resident” in the UK within the meaning of section 117 C(4)(a) of the 2002 Act , whether or not the person has been granted temporary admission or release pending deportation or is on immigration bail”.

24. The parties also helpfully considered cases under what was paragraph 276B of the Immigration Rules which required applicants to show 10 years “continuous lawful residence in the United Kingdom” such as Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 ; [2020] 4 WLR 154 , but the assistance that was provided by those cases was limited because they were not considering the issue in this case.

25. There are a number of matters which were common ground. First, at all material times, it has been a criminal offence under the Immigration Act 1971 to obtain leave to remain by means which include deception, see section 24 A(1)(a) of the Immigration Act 1971. Secondly where an applicant has obtained citizenship as a result of false representations, the grant of the citizenship is not a nullity unless the applicant had impersonated someone else, although the citizenship might be removed under section 40 of the British Nationality Act 1981 , see R(Hysaj) v Secretary of State for the Home Department [2017] UKSC 82 ; [2018] 1 WLR 221 . Part of the reasoning in Hysaj reflected the lack of certainty which withdrawing status retrospectively could have on third parties such as children, see paragraph 19. Thirdly Mr Bokqiu’s ILR was liable to be revoked, and was revoked, under section 76(2) of the NIAA 2002 for deception, but the leave could not be cancelled retrospectively, see NM (Zimbabwe) [2007] UKAIT 2 ; [2007] INLR 391. That meant that Mr Bokqiu had leave at material times.

26. All of this means that Mr Jafferji is correct to submit that, when Mr Bokqiu had ELR and then ILR, he had leave to remain in the UK, even if the ILR was later revoked, as it was on 11 November 2020. This, however, does not answer the underlying point about whether if he had committed a criminal offence to obtain that leave, Mr Bokqiu was “lawfully resident” for the purposes of section 117 C of the NIAA 2002 .

27. In my judgment Mr Bokqiu was not lawfully resident, within the meaning of section 117 C the NIAA 2002 , when he had ELR and then ILR. This was because the ELR and ILR had been obtained by committing a criminal offence by stating falsely that he was under 18 years old and from Kosovo, at a time when he was aged 18 years and was from Albania. I come to this conclusion for three main reasons. First, a status which has been obtained by the commission of a criminal offence cannot reasonably be described or interpreted as “lawful”. It makes no sense to describe residence pursuant to a status which has been obtained by the commission of a criminal offence, as lawful for the purposes of section 117 C of the NIAA 2002.

28. Secondly, a status obtained by fraud cannot be equated to a status which has been obtained without deception. This is because fraud has always been recognised as a thing apart see, albeit in the context of the construction of an exclusion clause, HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6 ; [2003] 2 Lloyds Rep 61 at paragraph 15. Fraud unravels all. Once fraud is proved it is capable of vitiating transactions.

29. Thirdly, this conclusion also accords with the purpose of Exception 1, which applies to recognise a person’s long and lawful presence in the UK. It is not reasonable to place weight on a private life of a person who has no legitimate expectation of a continuing presence in the UK, because their presence was founded on a lie, compare Underhill LJ in Akinyemi .

30. For these reasons I would dismiss the first ground of appeal. As already indicated it is common ground that the second ground of appeal does not arise for decision if the first ground 1 has been decided against Mr Bokqiu. I have not therefore addressed the second ground. Conclusion

31. For the detailed reasons set out above I would dismiss the appeal. Lady Justice Elisabeth Laing

32. I agree. Lord Justice Cobb

33. I also agree.