Gjon Matusha, R (on the application of) v The Secretary of State for the Home Department

For revocation of indefinite leave under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002, deception must have materially contributed to the grant of leave. The requirement applies where leave was granted following a discretionary assessment rather than under fixed Immigration Rules criteria.

The revocation policy is sufficiently flexible to cover such cases. It requires clear and justifiable evidence of deception and materiality. Where deception occurred more than five years earlier, the policy creates a non-mandatory presumption that indefinite leave will not normally be revoked. Departure from that practice requires consideration of relevant factors and adequate, rational reasons. The nature, extent and significance of the deception are relevant to both materiality and departure from the policy.

The applicant, an Albanian national, obtained indefinite leave to remain under the Legacy Programme after making false claims about his nationality and age and continuing to maintain those claims. The respondent later discovered the deception, revoked his indefinite leave under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002, and granted limited leave to remain on a ten-year route to settlement.

The applicant sought judicial review, arguing that the deception was not material to the discretionary Legacy decision, that the revocation policy did not permit revocation after more than five years or in cases involving discretionary grants, that the policy was unlawful, and that revocation was unreasonable or disproportionate.

1. Materiality. The Legacy Programme was an operational process for resolving a backlog, not an amnesty or a source of new substantive rights. Decisions remained subject to the evaluative framework in paragraph 395C of the Immigration Rules and the applicable guidance. Caseworkers had to consider all relevant positive and negative factors holistically, including evidence of deception.
2. The applicant’s continuing failure to disclose his false nationality and age was deception within section 76(2)(a). The deception was materially connected with the grant of indefinite leave because the decision-maker assessed his case on materially incorrect information. The respondent was entitled to conclude that disclosure would probably have led to a less favourable assessment.
3. Policy. Section 4.1 of the revocation policy creates a presumption that indefinite leave will not normally be revoked where the deception occurred more than five years earlier, but the language is non-mandatory. The mere existence of deception is not ordinarily enough, taken alone, to justify departure. The decision-maker must consider the nature, extent and significance of the deception and give adequate and rational reasons.
4. The respondent complied with the policy. The prolonged and repeated deception, including the false asylum claim and continued misrepresentation, was sufficiently serious to justify departure from the usual practice. The policy was lawful because it directed decision-makers to consider clear evidence of deception, materiality, the circumstances of the original grant, and the individual facts of the case.
5. Proportionality. The public interest in maintaining confidence in the immigration system could justify revocation in an appropriate case. The applicant retained limited leave to remain and could continue living in the United Kingdom with his family. In the circumstances, revocation was within the range of reasonable responses and was not disproportionate.
6. The judicial review challenge was dismissed.

The judgment records that permission for judicial review was granted by the Upper Tribunal, except on a technical issue concerning the first revocation decision. The claim challenged the respondent’s second revocation decision dated 15 August 2019. The Upper Tribunal dismissed the challenge.