24 Oct 2016, 42 mins ago

In a judgment containing much criticism of Home Office nationality policy towards 16 or 17 year olds who commit minor criminal offences, R (on the application of SA) v SSHD [2015] EWHC 1611 (Admin), Karon Monaghan QC, sitting as a Deputy Judge of the High Court, has quashed a refusal by the Secretary of State for the Home Department to register a South African national as a British citizen.

The claimant had migrated to the UK when he was 9 years old. His family background was difficult and he was taken into care when he was 11 years old. When he was 17, the claimant was given a six-month conditional discharge after pleading guilty to possession of cannabis. Just before his 18th birthday, he applied to register as a British citizen. The application contained much mitigating information about the claimant’s background, including the fact that he had a younger sister who is a British citizen, a brother with indefinite leave to remain, and the circumstances of his unsettled family life. There was also evidence from the claimant’s foster carer and social worker showing improvements in his behavior and a commitment to study and training.

The application was refused on the basis that the claimant did not meet the “good character” requirements of the British Nationality Act 1981 because of his criminal conviction. The grant of citizenship is a matter of discretion, but the Home Office Nationality Instructions state that in considering applications for the registration of children aged 16 or over, it will have regard to the standards of character required for the grant of citizenship to an adult, and that it would normally refuse an application for a minor aged 16 or over if it considers these standards are not met. Annex D of the Instructions states that where the applicant is of good character in all other respects, caseworkers should normally be prepared to overlook a single minor unspent conviction resulting in a conditional discharge. However, Annex D also states that caseworkers should not normally disregard any conviction for an offence involving drugs irrespective of the severity of the sentence imposed. This was the policy that led to the refusal of the application.

The judge found that the SSHD had unduly fettered her discretion by rigidly adhering to the policy in the Nationality Instructions. She found that the only matter taken into account as relevant to the exercise of the SSHD’s discretion was the drugs conviction, and that the SSHD had failed to consider any mitigating features of the claimant’s case, including his difficult background, and his age at the date of conviction. No consideration had been given to the fact that his future could clearly be seen to lie in the UK.

The judge also found that the SSHD had acted unlawfully in adopting and applying a blanket policy that treats 16 and 17 year olds as adults for the purpose of determining good character. Irrespective of submissions made on behalf of the SSHD that there was no blanket policy, the judge found that the policy had been treated as a blanket rule in the claimant’s case. The judge went on to state that in her judgment: “there is no rational basis for the drawing of a bright line between child applicants who are 16 and above and those below even if the effect is to introduce only a presumption (“normally”) as to the outcome”. She considered the policy was contrary to the approach adopted by the UN Convention on the Rights of the Child; section 55 of the Borders, Citizenship and Immigration Act 2009, which requires paramount consideration to be given to the child’s best interests; and s.3 British Nationality Act 1981, all of which treat minors as those under 18 years of age. She concluded that the policy failed the test of rationality and was unlawful.

Finally, the judge found that the refusal also interfered with the claimant’s family and private life rights, as protected by Article 8 of the European Convention on Human Rights, given his close family ties to the UK and the sense of identity and belonging that would inevitably be fostered by the grant of citizenship and undermined by its refusal. She also found that Article 8 applied because of the arbitrariness in the refusal, in particular because there was no rational basis for distinguishing between a child of 16 or above and a child below that age in this context.

The judge went on to quash the refusal of the claimant’s application for registration so that it now falls for reconsideration.

The judgment is a relatively rare example of a defeat for the Home Office in a nationality case where refusal has been based on a criminal conviction. According to figures disclosed in a response to a Freedom of Information request last year https://www.gov.uk/government/publications/applications-by-minors-for-registration-as-a-british-citizen, some 300 applications to register as British citizens by persons aged 16-17 were refused on good character grounds. It is unsurprising that the number is so high if the policy is being applied generally as inflexibly as it was in this case.