Aissaoui v Secretary of State for the Home Department

Under the long-residence provisions of the Immigration Rules, use of a false identity to obtain employment is relevant to the public-interest assessment and may carry substantial weight. It does not automatically make a grant of indefinite leave undesirable. The tribunal must assess the nature, purpose and surrounding circumstances of the deception alongside all the prescribed factors.

A policy preceding the Rules cannot determine their meaning, although it may assist in applying the public-interest criterion. A decision based on materially mistaken findings about concealment or evasion cannot stand where a rational tribunal, applying the correct factual basis, could reach the opposite conclusion.

The appellant had resided continuously in the United Kingdom since 1991 and sought indefinite leave to remain under paragraph 276B of the Immigration Rules. During much of that period he worked unlawfully using another person's name and national insurance number.

An immigration judge dismissed his appeal. The judge alternatively concluded that indefinite leave was undesirable in the public interest because the appellant had adopted the false identity to avoid detection and removal. Freshly disclosed records showed that the Home Office had known his address and undermined the findings that he had gone to ground and adopted the identity to evade removal.

Following reconsideration, the Asylum and Immigration Tribunal held that the errors did not materially affect the public-interest conclusion. The central issue before the Court of Appeal was whether that conclusion contained a material error of law requiring fresh reconsideration.

1. The appeal was allowed unanimously and the case remitted for fresh reconsideration by another immigration tribunal. The alternative public-interest determination rested materially on findings that the appellant had gone to ground and had adopted a false identity to evade detection following refusal of his student appeal. The disclosed Home Office file showed that the respondent knew his address. The evidence also showed that use of the identity had begun earlier, for the purpose of obtaining work.

2. Those factual errors materially affected the assessment under paragraph 276B(ii) of the Immigration Rules. The first immigration judge's conclusion about the purpose of the false identity could not stand on the evidence. The reconsidering immigration judge repeated the error by treating avoidance of detection as an overwhelming fact.

3. The Court could not uphold the refusal on the basis that the public-interest outcome was inevitable. The respondent properly accepted that a rational tribunal could conclude that there were no reasons why granting indefinite leave would be undesirable, although the contrary conclusion was also rationally available. A fresh evaluative decision was therefore required.

4. MO (Long residence rule-public interest proviso) Ghana [2007] UKAIT 14 was to be treated with caution. In that case counsel had accepted that the conduct amounted to a particularly serious crime, and the individual's personal history involved extensive deliberate deception. Neither feature applied in the same way here. Use of a false identity may be a weighty public-interest factor, but MO did not require refusal whenever an applicant had used another name to work.

5. The administrative policy preceding paragraph 276B was of no assistance in interpreting the Rule. It could nevertheless assist its application by indicating circumstances in which such conduct had not previously justified refusal in the public interest. The tribunal on remittal was required to reconsider the paragraph 276B(ii) assessment afresh on the correct factual basis.

• Court of Appeal (Civil Division): Allowed the appeal unanimously and remitted the case to another immigration tribunal for fresh reconsideration.
• Asylum and Immigration Tribunal: Immigration Judge Blair-Gould held that the original decision contained an error concerning service of notice but that the alternative public-interest conclusion contained no material error of law.
• High Court: Collins J ordered reconsideration on 10 May 2007.
• Asylum and Immigration Tribunal: Senior Immigration Judge Allen had refused to order reconsideration. Immigration Judge Boyd had previously dismissed the appeal, both on service of notice and, alternatively, under paragraph 276B(ii) of the Immigration Rules.