Refusal of indefinite leave to remain because of false passport conviction upheld by Upper Tribunal

A 68 year old woman has been ordered to pay the Home Secretary’s costs after unsuccessfully challenging a refusal to grant her indefinite leave to remain. The woman became the primary carer for her British granddaughter after her daughter died of Covid in April 2020 and has been working as a carer for the elderly. Her application for indefinite leave to remain was refused because she was convicted in 2005 for trying to use a false passport to get a National Insurance Number so that she could work. The case is R (TT) v Secretary of State for the Home Department, JR-2025-LON-000110.

Background

The applicant is a Zimbabwean national who came to the UK in December 2001 and unsuccessfully claimed asylum. The applicant’s daughter came to the UK in 2004 and gave birth to a child, K, in January 2007. K later became a British citizen. The daughter died of Covid in April 2020 and the applicant became K’s guardian.

In November 2005 the applicant was convicted of possession of a false passport, which she had tried to use to get a National Insurance Number so that she could work. She was sentenced to 12 months’ imprisonment and the Home Secretary tried to deport her.

Eventually the applicant was granted leave on human rights grounds in September 2011. The tribunal that allowed her appeal “expressly accepted that the applicant had been raped and that it was a consequence of that and the disappearance of her husband that caused her to flee Zimbabwe and that she had a subjective fear of persecution and was not an economic migrant”.

The applicant was granted discretionary leave to remain from 3 February 2012 for three years, followed by two further periods of discretionary leave. In July 2023 she applied for settlement on the basis that she had completed six years of continuous discretionary leave (under the pre-July 2012 position).

The application was refused under part 9, paragraph 9.4.1 of the immigration rules, because of her period of imprisonment and she was instead granted three more years of discretionary leave. A pre action letter was sent on 31 January 2024 and said that there had been a failure to consider a grant of discretionary indefinite leave to remain outside the rules in line with the guidance “Discretionary leave version 10, 16 March 2023”. Additional evidence from K’s school and supporting letters from friends and family were included.

A response to the pre action letter was sent on 12 February 2024, maintaining the refusal decision. A further pre action letter was sent on 21 February 2024 with a witness statement and a letter from the applicant’s GP. The refusal was again maintained in a response dated 4 March 2024 and the judicial review was lodged on 28 March 2024.

The judicial review

Along with the acknowledgment of service, on 14 May 2024 the Home Secretary served a supplementary decision letter which considered the discretionary leave guidance and the other evidence that had been provided. It was noted that the applicant worked as a carer in the UK, looking after vulnerable elderly people, and that she was a victim of rape which continued to impact her mental health.

However the refusal was maintained and the decision maker said that this decision “would not lead to a significant interference in terms of your family life and there is no evidence that your granddaughter would suffer any detriment if you were not granted ILR. You have been granted a further period of DL which means there is no immediate prospect of removal for you”. The concerns raised about the cost of future of applications was dismissed with reference to the fee waiver process.

The grounds for judicial review were amended in light of the supplementary refusal letter. Permission was then refused on the papers but granted at an oral permission hearing. The grounds were that the decision:

(i) is a consequence of the Respondent’s exercise of residual discretion being unlawfully fettered;
(ii) irrationally failed to consider the exercise of discretion outside the Immigration Rules;
(iii) is contrary to the Respondent’s statutory obligations pursuant to section 55 BCIA 2009.

It was accepted on behalf of the applicant that the third ground was somewhat academic given K was no longer a child. The tribunal did not accept that there was any unlawful fettering of discretion. On the second ground, the tribunal said that:

In the circumstances I find no merit in the assertion that there was a failure to undertake a holistic consideration of all relevant matters. The respondent’s consideration of whether to exercise discretion in granting ILR was a full and detailed one which was undertaken in accordance with the relevant policy guidance and which took account of all relevant matters. For the reasons fully and cogently given the respondent was unarguably entitled, on the evidence available to her, to conclude that there were no sufficiently mitigating or exceptional circumstances justifying a grant of settlement. There was nothing arguably unreasonable or irrational in the respondent exercising her discretion in the way that she did. In essence the applicant’s challenge in this regard is little more than a disagreement with the respondent’s decision and a further attempt to argue her case.

The applicant was ordered to pay 50% of the respondent’s reasonable costs up until 14 May 2024 (the date of the supplementary refusal letter) and full reasonable costs after that date.

Conclusion

You can certainly understand why this judicial review was brought, as being in immigration limbo forever is a miserable thing which feels increasingly unfair for a conviction which is almost twenty years in the past and given the work that the applicant does for the UK, as well as the personal difficulties that she has experienced in her life. It appears that the case may not have been funded under legal aid as this is not mentioned in the judgment, if this is the case then I hope that the applicant is able to find some help to deal with the costs she now owes as a result of this attempt to get some stability in her immigration status.