Stealing someone’s identity is not a “false representation” for the purposes of a 20-year long residence application, the Upper Tribunal has found. The case is Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC).

Bangladeshi national Sultan Mahmood, 41, has been living in the UK since at least 1996, but not as Sultan Mahmood. To his employer, his doctor and the taxman he was British citizen Rezaul Karim, 44, having adopted that man’s identity (and National Insurance number) and lived in that guise for over a decade.

In 2009, Mr Mahmood applied for indefinite leave to remain. He did so in his own name, but “openly admitted” his fake identity: the evidence in support of his application included “eleven P60 forms dated from 1998 to 2009” in the name of Rezaul Karim. His double life, Mr Mahmood argued, was not inherently a breach of the immigration laws.

Unsurprisingly the Home Office refused his application, but Mr Mahmood appears to have stuck around and in 2016 reached 20 years of continuous (if unlawful) residence in the UK. That opened up the possibility of regularising his stay under the long residence rules, and the Bangladeshi citizen duly applied for permission to stay under the 20-year rule.

The stumbling block was the suitability rules for 20-year applications. In refusing Mr Mahmood’s application, the Home Office invoked two of those provisions: paragraph S-LTR.1.6. of Appendix FM:

The applicant will be refused limited leave to remain on grounds of suitability if…the presence of the applicant in the UK is not conducive to the public good because their conduct… character, associations, or other reasons, make it undesirable to allow them to remain in the UK.

And paragraph S-LTR.4.2:

The applicant may be refused on grounds of suitability if… 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.

On appeal, a judge of the First-tier Tribunal backed the Home Office, saying that Mr Mahmood had “engaged in sustained deceit over the course of more than a decade”.

False representations not relevant

By the time the case reached the Upper Tribunal, the Home Office no longer sought to rely on paragraph S-LTR.1.6. That provision, the department accepted, “was not intended to cover the use of deception/dishonesty in a previous application for immigration status”. Upper Tribunal judges Blum and O’Callaghan agreed: 

paragraph S-LTR.1.6., a mandatory ground of refusal, does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.

That left paragraph S-LTR.4.2. The problem faced by the Home Office here was that, while Mr Mahmood had undoubtedly made false representations, he hadn’t made them to the Home Office. For the purposes of his immigration case, Mr Mahmood had been nothing but honest: he had sent in the P60s and explained all about his false identity.

As the Upper Tribunal put it:

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.

The judges added:

The false representation in this matter was in providing various employers with a dishonesty assumed identity and NI number to secure employment… 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.

The First-tier Tribunal had fallen into error by focusing on the false representations without considering whether they had been made “in a previous [immigration] application”. And with no suitability bar left standing, Mr Mahmood won: the Upper Tribunal remade the decision and granted him permission to remain in the UK under the 20-year rule.