Albert Bokqiu v Secretary of State for the Home Department

For Exception 1 under section 117C(4)(a) of the Nationality, Immigration and Asylum Act 2002, residence under leave obtained through a criminal deception is not lawful residence, even where the leave was formally granted and could not later be cancelled retrospectively. The statutory question is distinct from whether leave existed as a matter of immigration status. Exception 1 recognises long and lawful presence. It does not require weight to be given to private life founded on a lie where there is no legitimate expectation of continued presence.

Albert Bokqiu, an Albanian national, entered the United Kingdom claiming to be an unaccompanied minor from Kosovo. He obtained exceptional leave to remain and later indefinite leave to remain, both of which were subsequently revoked after the deception was discovered. Following his conviction for serious offences, the Secretary of State made a deportation order and rejected his human rights claim.

The First-tier Tribunal held that the leave obtained by deception did not amount to lawful residence for most of his life and that the statutory exceptions to deportation were not established. The Upper Tribunal dismissed his appeal. The Court of Appeal granted permission on issues concerning the meaning of lawful residence under section 117C(4)(a) and the calculation of residence before the grant of exceptional leave. The central issue was whether formally granted leave obtained by deception could constitute lawful residence.

The appeal was unanimously dismissed.

1. Meaning of lawful residence. Residence under exceptional leave to remain and indefinite leave to remain obtained by falsely stating that the appellant was under 18 and from Kosovo was not lawful residence for the purposes of section 117C(4)(a) of the Nationality, Immigration and Asylum Act 2002.
2. Formal existence of leave. The later revocation of indefinite leave did not operate retrospectively. The appellant therefore had leave during the material period. That fact did not answer the separate statutory question whether his residence was lawful. Leave obtained by committing a criminal offence could not reasonably be treated as lawful for Exception 1.
3. Reasons for the conclusion. A status obtained by crime could not sensibly be described as lawful. Fraud was distinct from a status obtained without deception and was capable of vitiating transactions. The conclusion also reflected the purpose of Exception 1, which recognises long and lawful presence. A person whose presence was founded on a lie had no legitimate expectation of continuing presence such that weight should be placed on the resulting private life.
4. Authorities. Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236 and Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 211 concerned different circumstances and did not determine the effect of deceptive procurement of leave. CI (Nigeria) v SSHD [2019] EWCA Civ 2027 and Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 did not resolve the issue. R(Hysaj) v Secretary of State for the Home Department [2017] UKSC 82, NM (Zimbabwe) [2007] UKAIT 2 and HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6 supported the distinction between formal status and the consequences of fraud.
5. Disposition. The alternative calculation ground did not arise because the first ground failed, and the Court did not determine it. The appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal in [2026] EWCA Civ 191.
• Upper Tribunal (Immigration and Asylum Chamber), by a decision dated 15 October 2024, found no material error of law and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal (Immigration and Asylum Chamber), by a decision dated 25 April 2024, rejected the appellant’s challenge to deportation and held that the statutory exceptions were not established.