Lakaj, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4273 (Admin)

Case No CO/3755/2013[2014] EWHC 4273 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 25 November 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LEWIS
Between
THE QUEEN ON THE APPLICATION OF LAKAJClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr C Jacobs (instructed by Marsh and Partners) appeared for ClaimantMr A Wagner (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE LEWIS: This is a claim for judicial review of a decision of the defendant dated 9 January 2013, by which the defendant refused the claimant's application for naturalisation as a British citizen. The basis for the decision was that the Secretary of State was not satisfied that the claimant was of good character. The defendant relied on guidance that had been published on 13 December 2012.[2]The key reason for the defendant's decision is expressed in the following terms:[3]“Your Client came to the UK and claimed asylum as a refugee from Kosovo, when in fact he is from Albania. The Home Secretary considers that this constitutes a deliberate attempt to mislead her. As such, she cannot be satisfied that your client meets the good character requirement for naturalisation and his application is refused.”[4]The claimant challenges that decision on two grounds: First, he contends that the guidance that should be applied to his case was the not the guidance that had been issued in December 2012. He says the guidance that was applicable to his case is the earlier guidance which was in force at the time when his application for naturalisation was made. He claims that under the earlier guidance, he would have been found to be of good character.[5]Secondly, the claimant says that, in any event, he had a legitimate expectation derived from an announcement on a Government website that the earlier guidance would apply to cases such as his, where the application for naturalisation had been made prior to the issuing of the December 2012 guidance. Facts[6]The claimant came to the UK on 20 April 1999, when he was aged 26 years old. He claimed asylum on 23 April 1999. He told the Home Office officials that he was a Kosovan, and that he feared attacks by the Serbian police in Kosovo.[7]He said that he had been badly beaten and tortured in Kosovo. He said that the Serbs had forced him to leave Kosovo. He also said that he was a Catholic and that he feared attacks by Islamic extremists in Kosovo.[8]The claimant was refused asylum, but he appealed. At the appeal hearing the claimant did not give evidence himself. He did instruct counsel on his behalf, and that counsel maintained the claimant's story that he was from Kosovo. The appeal failed, as the Tribunal considered that he did not have a well founded fear of persecution by reason of his ethnic origins or his religion.[9]The claimant sought indefinite leave to remain in the United Kingdom. Again, neither he, nor those acting on his behalf, told the Secretary of State that his earlier story was false. He was ultimately granted indefinite leave to remain on 22 October 2010.[10]That decision was based on his personal circumstances. Those circumstances, of course, were believed to include the fact that the claimant was from Kosovo. The account that the claimant gave and maintained for over 12 years, was not true.[11]He is not a Kosovan, and was not from Serbia. He had never been beaten or tortured by police in Serbia. He had not been forced out of Serbia by the police. He did not fear extremist attacks in Kosovo because he did not live in Kosovo. He is an Albanian national from Albania.[12]The claimant accepts now, that, as is put in his skeleton argument, he maintained a false account on arrival in 1999 when applying for asylum as a Kosovan national. Put bluntly, he lied and sought to deceive the Home Office officials and to obtain asylum by deception. He maintained those lies before the First-tier Tribunal. He did not inform the Secretary of State of the untruths in his story when he continued his application for indefinite leave. He maintained the false stories for over 12 years.[13]In any event, the claimant applied for naturalisation as a British national on 16 May 2011. For the first time, he informed the authorities that he was a national of Albania, not, as he had pretended, a national of Kosovo.[14]It was that application which the defendant rejected for the reasons I have previously set out.[15]Applications for naturalisation are dealt with in accordance with the British Nationality Act 1981. Section 6(1) provides as follows:
"6. Aquisition by naturalisation. (1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, 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 of such a citizen."
[16]Schedule 1 sets out a series of requirements. A person applying for naturalisation must show that he is of good character. The operation of that statutory provision is dealt with by Lang J in R (I) DA (Iran) v Secretary of State for the Home Department 2013 EWHC 279 (Admin).[17]At paragraph 39,

the judge says this:

"The Secretary of State is required to make an evaluation of the applicant's character on the basis of the material before her, having proper regard to the guidance in the Nationality Instructions. The onus is on the Claimant to satisfy the Secretary of State that he is of good character."
[18]The defendant has issued guidance as to how the question of good character will be assessed. At May 2011, when the claimant applied for naturalisation, the relevant part of the of the guidance was section 9 headed: "Deception." It provided as follows:[19]"9. Deception. "Case workers should count heavily against an applicant any attempt to lie or to conceal the truth about an aspect of the application for naturalisation, whether on the application form or in the course of enquiries. Concealment of information or lack of frankness in any matter must raise doubts about an applicant's truthfulness in other matters."[20]At section 9.5 there is a section dealing specifically with evidence of fraud in the immigration and nationality processes. Section 9.5(1), so far as material, dealt with situations where there was evidence to suggest that the applicant had employed fraud in a previous immigration application process where the fraud was directly material to the accusation of immigration leave, or to the application for citizenship.[21]In those circumstances, the earlier guidance said that the applicant should be refused unless the circumstances of 9.52 apply. Section 9.52 provided that:
"Where deception has been employed on a previous immigration application and was identified and dismissed by UKBA or was factually immaterial to the grant of leave caseworkers should not use that deception as a reason by itself to refuse the application under section 9.5.1."
[22]There are then various examples of the circumstances in which deception would not be regarded as material and where the application would not necessarily be refused. Mr Jacobs, for the claimant, relies in particular on example B of that guidance.[23]In December 2012, and prior to the decision in this case, the defendant issued new guidance. Section 1 is the introduction. It refers to the fact that there is no definition of good character in the British Nationality Act, and no statutory guidance. It points out that the Secretary of State must be satisfied that the applicant is of good character. It says that to facilitate the applicant must answer all questions asked of them during the application process honestly and in full. Then there is a series of sections dealing with particular matters that are potentially relevant to an assessment of a person's good character.[24]Section 3 deals with criminal activity, and that section is divided into two parts: 3.1 deals with applications made on or after 13 December 2012. That section reflects certain changes made, I am told by statute to the Rehabilitation of Offenders' Act 1974 and the fact that certain convictions are no longer to be regarded as spent when making an assessment of good character.[25]Section 3.2 deals with applications made on or before 12 December 2013, and provides for a different test of assessment of good character in relation to convictions.[26]There are then sections dealing with a number of different potentially relevant matters including, for example, financial soundness, what is described as "notoriety" and then, finally, there is section 10 headed: "Deception."[27]The opening paragraph of section 10 says this:
"Caseworkers should count heavily against an applicant any attempt to lie or conceal the truth about an aspect of a previous UKBA immigration application as well as the current application of naturalisation - whether on the application form or in the course of enquiries. Concealment of information or a lack of frankness in any matter must raise doubts about an applicant's truthfulness in other matters."
[28]At section 10.4, there is a section headed:
"Evidence of deception in the immigration and nationality process".That provides as follows: "10.4.1 Caseworkers should refuse the application where there is evidence to suggest that an applicant has employed deception either: a. during citizen application process or. b. in previous immigration applications processes. It is irrelevant whether the deception was material to the grant of leave or not. The fact that deception was engaged in during the current or any previous application is sufficient to warrant refusal on the basis of good character. In such cases, the applicant should be advised that an application for citizenship made within 10 years of the date of refusal on these grounds, be unlikely to be successful."
[29]Pausing there, it is that guidance upon which the Secretary of State relied. She refused the claimant's application for naturalisation. He had engaged in deception in the immigration process and therefore the Secretary of State decided that he was not of good character.[30]Against that background, the following issues arise. Was it the earlier guidance or the December 2012 guidance which applied to the applicant's case, and, did the claimant have a legitimate expectation in any event that the old guidance would be applied to his case rather than the new guidance?[31]Dealing with the first issue, there are two basic principles relevant to the date in which guidance issued by a Government department applies. First, a decision maker is entitled to apply the policy applicable at the time that the decision is taken. That is a well-recognised principle in public law.[32]For authority, one can look at the decision in the Immigration field, of R (on the application of Shah) v Secretary of State for the Home Department [2013] EWHC 2206 (Admin). At paragraph 36, Mitting J notes that the Secretary of State is entitled to apply the policy applicable as at the date of the decision under challenge. That general statement is repeated frequently in the immigration field and indeed in other fields.[33]Secondly, a policy or guidance will generally come into force and apply from the date specified in the policy, or, absent any date, on the date of publication of the policy.[34]In relation to this first ground of challenge, Mr Jacobs for the claimant, submits as follows:[35]First, he says the 13 December 2012 policy statement was not itself clear as to whether or not the policy applied to applications made before 13 December 2012.[36]He then submits that an announcement made on a Government website was, and was intended to be, a clarification of the date and the applications to which that policy apply. He submitted that that website clarification confirmed that the new policy only applied to applications for naturalisation made on or after 13 December 2012. He submitted that the policy and the announcement should be interpreted on the basis of what a reasonable and literate person is understanding of the policy and the announcement meant, relying on R(Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72 and R(K) v Secretary of State for the Home Department [2010] EWHC 3102 (Admin). I have approached the interpretation of the policy document of December 2012 and the website announcement on that basis.[37]His alternative submission is that the website announcement in any event gives rise to a legitimate expectation on the part of the claimant that his particular case would be dealt with in accordance with the earlier guidance, not the new policy.[38]It is necessary, therefore, to read the website announcement. That is headed:
"Latest news and updates."
There is a second heading saying:
"Changes in the assessment of good character in citizenship applications."
[39]The text then reads as follows: "9 January 2013. "From 13 December 2012, changes were made to the Nationality Instructions that affect anyone applying for citizenship on or after that date. "The main changes deal with criminality, and how it is assessed in terms of the good character requirement in citizenship applications. Some of the main amendments are summarised below: "Applications made or after 13 December 2012 which feature a criminal conviction will no longer be assessed against the Rehabilitation of the Offenders Act 1974. Instead they will be measured against a new set of sentencing limits. "Where an application features a sentence of 4 years or more in prison this can never fall outside a sentencing threshold. Such an application for citizenship would likely to be refused. "Police cautions will be looked at in determining whether somebody meets the good character requirement. "There will be greater scope to discount some disciplinary military offences when deciding nationality applications from serving members former members of HM Forces. "For full details of the changes that have been made in terms of the assessment of good character, please see the following updated guidance on this website."[40]There is then a hyperlink which would take you from that website to the updated guidance, including section 10, to which I have already referred.[41]I deal first with the interpretation argument: namely, that the policy guidance of December 2012 is unclear and that the website was, and was intended, to define or clarify the category of applications to which the guidance related.[42]First, in my judgment, reading the guidance as a whole and fairly and in context, it is clear that that December 2012 guidance was intended to replace the earlier guidance dealing with the assessment of good character.[43]In relation to one section, section 3, dealing with criminal activity, the policy applies different guidance to applications made or before 12 December 2012 and applications made after that date.[44]So far as the rest of the guidance is concerned, and in particular, so far as the relevant section, section 10, is concerned that, in my judgment, applies to all outstanding applications for naturalisation.[45]There is nothing in section 10 or any other part of the guidance, to indicate that earlier guidance applied to assessing good character and deceptions made in respect of applications made before 13 December 2012, and that the new guidance only applied to applications made on or after 13 December 2012.[46]Reading the policy document as a whole and fairly, it is clear that apart from the situations involved in criminal activity where are there have been legislative changes the guidance applies to all applications determined on or after 13 December 2012.[47]Secondly, in my judgment, it is clear that the website announcement of 9 January 2013 was not intended to act as a clarification or statement of the categories of applications to which the new guidance applied.[48]First, one looks at the context and the wording of the announcement. It is a website headed:
"Latest news and update."
It has a second heading:
"The changes in the assessment of good character in the citizenship applications."
[49]Read fairly, it is a news release. It is drawing attention to changes. It does not expressly state that it was seeking to clarify or define the applications to the which the guidance applied. Rather, it was a news release, drawing attention to some changes that had been made.[50]Secondly, if one looks at the last paragraph of the website announcement it is clear that the update was drawing attention to the updated guidance. It says that full details of the changes that had been made are in the guidance, and people should see the updated guidance and gives a website link.[51]Read naturally the document is saying no more than what it says. It is a news item, or update, drawing attention to changes and if anyone who wants to know the full details, they must go to the policy itself. The document announcement is not intended (and is not purporting) to give clarification or definition about the start date or the application date of the guidance.[52]Thirdly, if the website announcement were intended as clarification, I accept Mr Wagner's submissions that that fact would have been made explicit and the website announcement would have been expressed very differently, given the significance of such a purported clarification.[53]The absence of any wording suggesting that the new policy was silent about the scope of its applications, and that the announcement was intended to clarify the position reinforces the view that on analysis the website was not in fact intended to be a clarification of the scope of the guidance.[54]In my judgment, therefore, the policy document itself sets out terms of the changes. It is clear from that document that it applies to all outstanding applications for naturalisation, save for the different provision in relation to the assessment of criminal activity. The web announcement was not a clarification of policy, and does not seek to limit or clarify the categories to which this policy applies. Subject, therefore to the question of legitimate expectation, the Secretary of State is correct in principle to apply that policy document to outstanding application for naturalisation.[55]The second ground of challenge was that the claimant had an individual expectation that in his case the earlier guidance, not the new guidance, would apply. He claims that the website document gave rise to that expectation. He relies in particular on the opening sentence which says from 13 December 2012 changes were made to the nationality instructions that affect anyone applying for citizenship on or after that date.[56]He implies from that a promise or representation that people who had already applied before that date would continue to be dealt with in accordance with the previous guidance. Any statement would have to be clear, unambiguous, and unqualified if it were to be capable of forming a basis of a legitimate expectation enforceable in public law.[57]Firstly, read as a whole, fairly, and in context, this website was not a representation as to the intended scope of application of a new policy guidance. I accept the wording of the first sentence implied, or may be said to imply, that there has been no change for the category of people who applied prior to 13 December 2012.[58]It is right, however, to note that it does not expressly deal with the position in relation to people in that category. The document also has to be read fairly, and as a whole. It is not right to take out individual sentences and then to draw inferences from particular individual sentences. It is also important to take into account the context of the document. It is headed:
"Latest news and updates."
[59]The document as a whole talks about some changes and gives examples of those. Read fairly and as a whole, it is doing no more than indicating that changes have been made and anyone applying after 13 December 2012 will be affected by those changes. It is also clear that the main changes deal with criminality, and there are different rules in relation to those who applied on or after 13 December 2012 or before 13 December 2013.[60]In my judgment, it is not possible to regard this document read as a whole as giving rise to a clear unambiguous representation that any person who had applied prior to 13 December 2012 would be dealt with in accordance with guidance issued prior to that date.[61]Secondly and separately, and more fundamentally, the representation is not in my judgment unqualified. It is clear from its terms that the website is not itself making representations or telling people what the position is on the assessment of good character. The very last paragraph says:
"For full details of the changes that have been made in terms of the assessment of good character, please see the following updated guidance on this website."
[62]Anyone reading this assessment should be expected to go to the guidance. If they read the guidance it is clear, as I have said, that the guidance applies to all outstanding applications saying that in relation to criminality there are different rules pre-imposed in respect of pre - 13 December 2013 applications.[63]In those circumstances, the website did not give rise to a clear, unambiguous and unqualified representation. It does not amount to a legitimate expectation capable of enforcement in public law, and for those reasons alone the second ground would fail.[64]There is a third reason. An individual's legitimate expectation is normally that his application will be dealt with in accordance with the policy applicable at the time that the decision is taken. If the claimant is to displace that, and have a different legitimate expectation, then in my judgment, as a minimum, the claimant would have had to see and known of that document said to give rise to that expectation, otherwise his only legitimate expectation would be that he would be dealt with in accordance with whatever policy was in force at the time of the decision of his application.[65]In this case the decision letter was sent on 9 January 2013. It was sent to the claimant's solicitor and there was date stamp on the letter dated 14 January 2013. I therefore infer that the letter was first received by solicitors acting for the claimant on 14 January 2013.[66]There is no evidence in this case that the claimant saw the website before 14 January 2013, or that he acquired an expectation that his case would be dealt with as set out in the website rather than in accordance with the normal expectation that the policy applicable at the date of the decison applies.[67]It is for the claimant to prove his case. Cases under English Law are decided upon evidence. Evidence is given in the form of witness statements accompanied by a statement saying that the contents of the statement are true.[68]The claimant has not put in any written statement. He has never given any evidence to this court that he saw this website before 14 January 2013. Indeed, one of the remarkable features of this case is that this claimant has not made any witness statement or given any evidence to the court. He has not explained himself why he lied to the Home Office, or to the First-tier Tribunal, or maintained the pretence that he was from Kosovo for 12 years. For present purposes, however, the critical point is that the claimant has not put in any evidence to say that he saw the website before the decision was communicated to his solicitors on 14 January 2013. If it had been necessary, I would have found that the claimant had not established his case on legitimate expectation. I would have found that he not shown that he knew before the decision had been taken about the website. I would have found that he has not established that he, personally, had had any legitimate expectation based on what he saw on the website before the decision was communicated to him on 14 January 2013.[69]In the event, however, it is not necessary to base my judgment on that fact. For the reasons I have already given there was no unqualified, unambiguous clear representation in this case, and no legitimate expectation arose from the website at all. Had it been necessary however I would have found that the claimant had failed to establish that he, personally, had any expectation arising from the website.[70]For those reasons, in my judgment the defendant was correct to apply the provisions of the guidance issued on 13 December 2012, when she took her decision on 9 January 2013. She was entitled to reach the conclusion that the claimant had failed to establish good character, given the deception that he had used in the earlier immigration process. The defendant was entitled to conclude that he should not therefore be naturalised and given British citizenship.[71]In those circumstances, the question of whether or not the earlier guidance would produce a different result does not arise for consideration, and it is not therefore necessary for me to express any views on that question. This claim for judicial review is therefore dismissed.