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An applicant may have accrued periods of a combination of both lawful and unlawful residence in the UK for the requisite 20years yet face a dilemma in seeking to evidence continuity of residence in circumstances where during the relevant period, he has documentation from the HMRC or employer that shows he has worked in the UK illegally using someone else’s identity.
How has the Tribunal approached such circumstances in which an applicant has on application and appeal relied upon such evidence of working illegally in the UK over a prolonged period of time?
In Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC) the Upper Tribunal considered such an appeal.
Summary background and use of false identity to work in the UK:
The appellant, a national of Bangladesh claimed that he arrived in the UK as a visitor in 1994.
Whilst in the UK, he applied for asylum in 1996: the claim did not succeed and the appellant exhausted his rights of appeal in 1997. He then applied for indefinite leave to remain in 2009 however the application was refused with no right of appeal. An application of 2014 for leave to remain was unsuccessful.
By further submissions dated 8 September 2016, the appellant sought leave to remain on human rights (article 8) grounds, relying upon his having been present in the UK for over 20 years.
The following had occurred as noted by the Home Office in applications the appellant had submitted:
Basis of Home Office refusal decision – 20years continuous residence not evidenced and suitability criteria not met:
The appellant’s application under the 20year long residence Rule was refused by the Secretary of State by decision dated 14 December 2017 on the following basis:
Relevant Suitability Criteria under the Immigration Rules:
Section S-LTR of Appendix FM details the suitability requirements to be met in a leave to remain application made by those seeking to remain in the United Kingdom. An applicant can be refused limited leave to remain on grounds of suitability if relevant paragraphs of S-LTR apply.
Paragraph S-LTR.1.6. provides for a mandatory refusal stating that an applicant will be refused limited leave to remain on grounds of suitability where the following applies:
‘S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.’
Paragraph S-LTR.4.2. provides for a discretionary refusal and states an applicant may be refused on grounds of suitability if:
‘S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful)”.
Dismissal of the appeal by the First Tier Tribunal Judge:
The Judge concluded as follows:
Upper Tribunal concludes paragraph S-LTR.1.6. inapplicable:
The Upper Tribunal noted that in respect of the appellant’s employment and tax documents the Secretary of State’s decision of 26 June 2014 stated:
‘14. … The earliest record of your client in the United Kingdom is when he was encountered working without authority and claimed asylum on 19 January 1996, however, satisfactory evidence has not yet been provided to show that he has lived continuously in the United Kingdom since that date. Tax documents have previously been provided, however, as stated in previous refusal letters, the P60s are not in your client’s name and HMRC confirmed that the National Insurance number is that of a British citizen born in 1976”.
The Home Office decision of 14 December 2017, in relation to considerations of suitability under Appendix FM and as to paragraph S-LTR.1.6. stated:
‘For the reasons given below, your application falls for refusal on the grounds of suitability in Section S-LTR under paragraphs 276ADE(1)(I) of the Immigration Rules because:
When you applied for indefinite leave to remain on 29 July 2009 you submitted a number of documents which were verified as not being genuine. HM Revenue & Customs confirmed that the eleven P60 forms dated 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 and 2009 submitted with that application did not match their records and that the National Insurance number used was not issued to anyone by your name.
Given the above your presence in the UK is not conducive to the public good as your conduct and character make it undesirable to grant leave to remain. You therefore fail to meet the requirements for leave to remain because paragraph S-LTR.1.6. of Appendix FM of the Immigration Rules applies.’
The Upper Tribunal reasoned as follows in deciding that the Secretary of State was not entitled to refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6:
Upper Tribunal concludes first clause of paragraph S-LTR.4.2 inapplicable:
In relation to paragraph S-LTR.4.2, the Upper Tribunal stated that two separate basis upon which the Secretary of State may exercise discretion to refuse an application for leave to remain can be summarised as:
Consequent to their independent nature, the Upper Tribunal was satisfied that reliance upon one or both of the elements must be specifically pleaded and reasoned by the Secretary of State in her decision letter, or if upon becoming aware of further information the Secretary of State seeks to exercise her discretion during the course of the subsequent appeal process it should be by means of an addendum decision providing reasons with an appellant being given sufficient time to counter the serious nature of the underlying allegation as to conduct.
It was noted that by her decision of 14 December 2017, the Secretary of State relied upon the first independent clause of paragraph S-LTR.4.2. concerned with the applicant having made false representations in a previous application for leave to remain or a variation of leave, or in a previous human rights claim
In reaching the conclusion that there were no false representations made on the appellant’s behalf in his application, the Upper Tribunal reasoned as follows:
“82. In this matter the appellant has consistently informed the respondent that whilst he dishonestly assumed an identity and a NI number to secure employment, and used the identity as a British citizen to secure access to the NHS, he was open and honest to the respondent as to the employment and tax documents accompanying the application having been secured through the use of the false identity. We consider it important that the P60 forms, genuinely issued but the product of dishonesty as to identity, were peripheral to the application for leave to remain on long residence grounds. Their purpose was to demonstrate long residence, but it was not a requirement of the relevant rule that the appellant provide P60s. They were relied upon by the appellant to establish his long residence, a task they were capable of satisfying, and not to establish that the appellant was the person named upon them. Nor did the documents establish that the appellant enjoyed a right to work lawfully in this country or to meet any financial requirement established by any relevant paragraph of the Rules. The false representation in this matter was in providing various employers with a dishonesty assumed identity and NI number to secure employment. The employment and tax documents were produced consequent to the appellant having secured employment in his false identity. Having openly informed the respondent from the outset as to his actions, there were no false representations made on the appellant’s behalf in his application that he was a British citizen called Rezaul Karim who was born in 1976, possessed a particular NI number, was lawfully entitled to work and through the course of lawful employment had earned the sums detailed by the eleven P60 forms.
83.Upon considering [17] of the decision we are satisfied that the Judge materially erred in adopting the broader interpretation of the first independent clause of paragraph S-LTR.4.2. Whilst observing that the appellant had openly declared that he assumed the identity of Mr. Karim to secure employment, the Judge considered the innate characteristic of the documents are containing ‘false representations’ through the deliberate dishonesty employed to secure them. Such an approach uncoupled the requirement that the false representation be made ‘in a previous application’ and instead broadened the use of a false representation to the securing of any document used in the previous application, even if there were clear and adequate admissions to the respondent from the outset as to the circumstances in which the documents were obtained.
84. We conclude that paragraph S-LTR.4.2. is disjunctive with two independent clauses. The respondent is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses. By her decision of 14 December 2017, the respondent only relied upon the first clause. The natural meaning of the first clause requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application. The reliance upon employment and tax documents, openly confirmed to have been secured through the long-time use of a false identity, was peripheral to the previous application for leave to remain on private life grounds under paragraph 276ADE(1)(iii) and also peripheral to the earlier application for ILR on long residence grounds. The Judge therefore materially erred in finding that the suitability requirement established by the first clause of paragraph S-LTR.4.2. was applicable to the appellant”.
Upper Tribunal concludes second clause of paragraph S-LTR.4.2 also in applicable:
The Upper Tribunal also concluded that Secretary of State could not, on any view, meet the requirements of the second clause on the facts of the case.
The Upper Tribunal stated that the use of false representations is clearly linked to the obtaining ‘from the Secretary of State or a third party a document required to support such an application or claim’. In principle, the deception should relate to the act of obtaining the document for the purposes of supporting an application or claim to remain in the United Kingdom. This is consistent with the use of the words ‘required to support’ which confirms a compulsory element to the use of the document(s) within the application or claim process. It was noted that such compulsion is identified by the relevant Rules or guidance.
The Upper Tribunal concluded:
“88. We therefore conclude that the use of the words ‘required to support’ in the second clause of paragraph S-LTR.4.2. confirms a compulsory element to the use of document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.
89. We observe that the appellant has relied upon documents arising from his employment, such as the P60s, in long residence and article 8 (private life) applications alone and not, for example, in an application where he was required to establish his earnings. He always confirmed by means of his applications that the documents were secured with the adoption of another person’s identity. The false representation was to his employer(s), namely that he was a British citizen called Rezaul Karim who was born in 1976, possessed a certain NI number and was lawfully permitted to work. Such false representations were not made to obtain a document for the purpose of supporting an application for leave to remain in the United Kingdom. The documents were solely generated consequent to the appellant having secured employment. We are satisfied that upon a natural reading of the second clause the securing of the employment documents relied upon by the appellant in this matter were not secured through false representations to support an application for leave to remain. In any event we observe that such employment and tax documents are not required for an application for leave to remain under paragraph 276ADE(1)(iii). Consequently, even taking the respondent’s case at her highest under the second clause of paragraph S-LTR.4.2. she could not succeed”.
Conclusion
The Upper Tribunal found that the appellant did not fall to be refused under the suitability requirements detailed at paragraph 276ADE(1)(i). The Upper Tribunal was satisfied that the appellant had been continuously present in the UK for a period of over 20 years. The appellant met the requirements of paragraph 276ADE(1)(iii) and the Upper Tribunal allowed his appeal on Article 8 private life human rights grounds.
To an applicant, the ultimate question in practice is whether the Upper Tribunal’s conclusion in allowing the appeal in Mahmood means that any applicant who has been working in the UK for a prolonged period of time using someone else’s identity and national insurance can succeed in an application under the long residence rules by reliance on documentary evidence of illegal working as proof of residence?
Maybe. Maybe not. It all dependants on the facts of each case and also whether the Secretary of State after Mahmood has now developed a strategy intended to limit the effects of that judgement.
In any case, several individual considerations will be in issue.
Home Office application forms require clarification whether an applicant is working. Even where the applicant is working illegally at the date of application, the answer is Yes. If the applicant is no longer working at the date of the application, then the answer is No.
Faced with no other documentary evidence to show length of residence in the UK for the past 20years, an applicant may seriously need to consider that rather than continue to remain in the UK for an indeterminate period undocumented or liable to removal, they may have no other choice but to submit evidence of prolonged illegal working in the UK in their long residence application.
Many undocumented Zimbabweans within the past decade or so have had claims based on their medical condition(s) refused by the Home Office and dismissed by the Tribunal with reference to the very high threshold test expounded by the House of Lords in the case of N [2005] UKHL 31.
Whilst considerations depend on the circumstances of each case, it might be that in appropriate cases, a fresh human rights claim can now be made to the Home Office, more so where that past negative Tribunal or Home Office decision was made prior to publication of AM(Zimbabwe) by the Supreme Court.
In Paposhvili v Belgium [2017] Imm AR 867, the European Court of Human Rights (ECtHR) clarified its previous approach in N v UK (2008) 47 EHRR 39. The ECtHR shifted the boundary of Article 3 protection from those who were about to die in the removing state to those who would face a serious, rapid and irreversible decline in their health leading to intense suffering and/or a significant reduction in their life expectancy either because of the absence of treatment or inaccessibility of treatment in the country of return.
A year ago, on 29 April 2020 the Supreme Court in AM (Zimbabwe) [2020] UKSC 17, affirmed the Article 3 medical threshold as that held in Paposhvili v Belgium [2017] Imm AR 867 and provided the Supreme Court’s interpretative steer which is now the test to follow when considering medical claims (placing reliance on Article 3 of the ECH).
WHAT THE HOME OFFICE NOTE STATES GENERALLY IN RELATION TO HEALTHCARE IN ZIMBABWE
The new Home Office Note, Country Policy and Information Note Zimbabwe: Medical treatment and healthcare Version 2.0 April 2021 clarifies the following amongst other issues in relation to the health care system in Zimbabwe:
WHAT THE HOME OFFICE NOTE STATES IN RELATION TO AVAILABLITY OF HIV TREAMENT
The Home Office April 2021 Note states that MedCOI reported that the following ARV drugs, used in the treatment of HIV/AIDS, are available in Zimbabwe:
Annex A of the Home Office Note contains the following further List of available medication according to MedCOI:
HOW THE HOME OFFICE APPROACH MEDICAL CONDITION CLAIMS
Via their Home Office Policy Guidance, Medical claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR) Version 8.0, 19 October 2020, the Home Office maintain the position that, “The threshold in Article 3 medical cases is very high, as set out in the UK Supreme Court case of AM (Zimbabwe) [2020] UKSC 17………”
In AM(Zimbabwe), the Supreme Court held that the test is a demanding one {23 and 32]:
“23. Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held
(a) in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;
……………….
32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal”.
In order for an applicant to establish that there would be a breach of Article 3 on medical grounds if they were removed from the UK, they must show that there are substantial grounds for believing that:
They would face a real risk of being exposed to either:
The serious, rapid and irreversible decline in health leading to intense suffering and/or the significant reduction in life expectancy must be as a result of either:
An applicant should produce evidence of all of the following:
The applicant must produce evidence to show that on the face of it there is an infringement of their rights which, if it wasn’t challenged, would establish a breach of Article 3 on medical grounds.
It is for the applicant to adduce evidence about their medical condition; current treatment; the likely suitability of any other treatment; and the effect of their inability to access it.
The applicant must provide documented evidence of their medical condition, from a qualified and certified medical practitioner with responsibility for their care (and with any relevant specialist qualification), with:
The Home Office must investigate any serious doubts about whether an applicant can be safely removed from the UK without breaching Article 3 on medical grounds. This is supposed to be done on a case by case basis, using evidence about the availability and accessibility of treatment in the receiving state to decide:
-cost
-the existence of a family/support network, and
-geographical location
After the Home Office considerations, if serious doubts persist, the UK needs to obtain individual assurances from the receiving state that appropriate treatment would be available and accessible to the applicant. Individual assurances need only be sought where serious doubts remain about whether they can be safely removed from the UK without breaching Article 3 on medical grounds.
FRESH HUMAN RIGHTS CLAIM BASED ON MEDICAL CONDITION
The Home Office Note paints a poor picture of the state of the health care system in Zimbabwe, however reliance should not be placed upon this Note alone to support a medical condition human rights claim.
For example in relation to HIV treatment, there have over the years running to this year, been frequent reported shortages of ARV drugs in Zimbabwe, an issue affecting availability of treatment. Apart from stating against the relevant medication, “ available…. subject to supply problems”, the Home Office Note does not delve to any clarificatory extent into these persistent problematic issues and as such detailed independent research needs to be undertaken.
Overall, consideration should be had to the following when preparing and submitting a fresh medical condition human rights claim: