Criminal liability and the 20 Year Rule

We acted for a Ukrainian national in an application for long residence based on the 20 years continuous residence in the United Kingdom.  He arrived in the UK in 2001 using a false passport and whilst he did not have any official documentation demonstrating his residence in the UK, we relied on eye witnesses such as friends and members of a church to prove his residence.  We relied on the case of TF and MNA v SSHD [2018] which confirms that the credibility of evidence provided by individuals in responsibility, including its members should not be doubted.  Our client also began working in a false name using a false passport.

We argued that the application should not be refused on the grounds of suitability because he never used false documents in order to deceive in an application for leave to remain in the UK and he has not made false representations or failed to disclose material facts in any of his dealings with the Secretary of State.

Having demonstrated that the applicant has not left the UK since his arrival in 2001 we argued that the application engages with paragraph 276ADE(2)(vi) because there will be significant obstacles to his integration in the Ukraine.  We relied on the case of SSHD v Kamara [2016] where the idea of integration was discussed. The idea of integration calls for a broad evaluative judgement as to whether an individual would be enough of an insider in terms of understanding how life in the society in that other country is carried on.  We argued that after the passage of time he will not be able to integrate and operate on a day-to-day basis in Ukrainian society.  We further argued that it will amount to a breach of Article 8, the right to private and family life.

Of particular concern to us in dealing with this case, was the issue of criminal liability as a result of his use of false identities.  This is an offence under section 6 of the Identity Cards Act 2010 and can lead to a lengthy period of imprisonment.  The potential defence to a charge of this nature is by virtue of section 31 of the Immigration & Asylum Act 1999, namely that it is a defence for a refugee to show that having come to the UK directly from a country where his life or freedom were threatened, he presented himself to the authorities without delay and made an asylum claim. That was not the case here. However, for a criminal prosecution to be investigated, firstly the Home Office had to consider the matter sufficiently serious as to refer it to the police and secondly the Crown Prosecution Service had to decide to charge if they were satisfied that there is sufficient evidence to provide a reasonable prospect of conviction.  We were delighted that none of that has taken place and that our client was granted 30 months leave to remain in the UK.