In the recent Court of Appeal case of R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 the Home Office has again successfully defended a challenge to their good character policy in respect of British citizenship applications.
The Appellant in the above case arrived in the UK on a student visa in 2001. Shortly afterwards he claimed asylum and was granted permission to work while his asylum application was under consideration. However, a few years later the Home Office refused the Appellant’s asylum application and he lodged an appeal against the refusal. The appeal was unsuccessful and by the end of 2007 the Appellant had exhausted all his rights of appeal.
In 2009, however, the Appellant was granted temporary admission to the UK with a restriction on working. The Appellant applied to remain in the UK as a Tier 2 migrant but his application was refused and he was removed from the UK in early 2010. The Appellant was then admitted to the UK a few years later as a fiancé of a British national and subsequently was granted indefinite leave to remain in the UK. He then submitted his application for naturalisation as a spouse of a British citizen under section 6(2) of the British Nationality Act 1981 (‘the Act’). Section 6(2) states that:
“6(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen or is the civil partner of a British citizen, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen”.
It is the following subsections of Schedule 1 to the Act which were directly relevant to this case, and in particular the Appellant’s residence in the UK, as it requires that the applicant for British citizenship:
- (b) […] is of good character and […]
- (a) that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270; and
(d) that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws;
Meanwhile the Home Office good character policy provides that:
“An application will normally be refused if, within the previous 10 years (before the date of decision), the person has not complied with immigration requirements, including having:
- failed to comply with (breached) conditions imposed under the Immigration Acts, for example:
[…]
– worked in the UK without permission to do so
[…]
– remained in the UK after their leave, including when leave extended by virtue of section 3C or 3D of the Immigration Act 1971 has expired”.
It is therefore not surprising that the Home Office refused the Appellant’s application for British citizenship. They stated that the Appellant did not meet the good character requirement because for the period from November 2007, when he had already exhausted all rights of appeal in respect of his asylum application, and January 2010, when he was removed from the UK, he had remained in the UK without valid leave and had worked without permission.
Although the Appellant argued that he met specific requirements set out in the Act (because for the last three years prior to the date of his application he had resided in the UK lawfully and had not been in breach of any immigration law) this did not convince the Court of Appeal and his appeal was dismissed. Interestingly, the Court of Appeal paid little attention to the fact that at the time of the hearing the Appellant was stateless, although he held a Lebanese refugee travel document.
The Court of Appeal accepted the Home Office’s argument with respect to its policy on good character and reiterated the Secretary of State’s competence, stating that:
“First, the minimum statutory conditions must be satisfied before the Secretary of State has any power to grant naturalisation: for example, the residence requirements for the relevant period must be met. It may be possible for some of those requirements to be waived by the Secretary of State. Secondly, the Secretary of State must be satisfied that the applicant is a person of good character. This is not strictly speaking an exercise in discretion. Rather it is an exercise in assessment or evaluation. Importantly, the Secretary of State has no discretion to waive this requirement of good character. Thirdly, and only if the earlier conditions are met, there arises a true discretion, at which stage the Secretary of State “may” but is not required to grant the application for naturalisation”.
This judgment again demonstrates that although the Secretary of State enjoys a rather wide discretion when deciding applications for naturalisation, she must refuse an application for naturalisation if it is established that the applicant is not a person of good character.
Gherson has extensive experience with all aspects of British nationality law and issues relating to naturalisation applications. If you require any further information on any of the matters raised in this blog, please do not hesitate to contact us.
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©Gherson 2020
Solicitor in our General Immigration Team