SA, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1611 (Admin)

Case No CO/10921/2013

[2015] EWHC 1611 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/06/2015

Before

KARON MONAGHAN QC

(Sitting as a Deputy High Court Judge)

Between

THE QUEEN ON THE APPLICATION OFClaimant

SAClaimant

SECRETARY OF STATE FOR THE HOMEDefendant

DEPARTMENTDefendant

Mr David Chirico (instructed by Bindmans LLP) for Claimant

Mr Mathew Gullick (instructed by Treasury Solicitor) for Defendant

Hearing Hearing date: 2 February 2015

JUDGMENT

KARON MONAGHAN QC (SITTING AS A DEPUTY HIGH COURT JUDGE) :

[1]By this claim, the claimant challenges the defendant’s refusal of his application for registration as a British citizen, in the first instance by a decision dated 3rd May 2013 and thereafter by a decision dated 6th June 2013.

Factual Background

[2]The claimant is a South African national. He was born in Cape Town on 27th November 1994. As a baby, the claimant lived in South Africa with his mother and his father. Whilst still very young, the claimant moved in with his grandparents when his parents’ relationship broke down. His mother began a new relationship and the claimant’s younger brother, AA, was born (on 4th May 2001), also in South Africa. At some point the claimant’s mother moved to the UK and arranged for AA to join her, leaving the claimant with his grandparents.

[3]In December 2003, the claimant arrived in the UK (aged 9) to join his mother and his brother, AA. During the course of 2003, AA was granted indefinite leave to remain.

[4]It appears that at some stage the claimant’s mother attempted to secure indefinite leave to remain for the claimant. However, for some reason (a reference is made in the documents to her not having the funds to meet the costs of the application), the application was not proceeded with or in any event was unsuccessful. The precise circumstances are unclear.

[5]Unfortunately, at some point the claimant’s mother became unable to look after the claimant and AA through difficulties of her own. In consequence, in November 2006 (when the claimant was 11) Slough Borough Council assumed responsibility for the care of the claimant and his brother, AA, (pursuant to section 20, Children Act 1989) at which point both moved in with a foster carer, KW.

[6]On 9th October 2009 the claimant was made the subject of a care order under section 31, Children Act 1989 and from that date on was a “looked after child”. At the date of the making of the order (at the latest) responsibility for the care of the claimant and formal parental responsibility for him, lay with Slough BC. When the claimant reached 18, as is evident from the report provided by Slough BC in support of his application for registration (dated 18th October 2012), he was to be no longer a “looked after” child but instead entitled to “leaving care” services until his 21st birthday or 25th birthday if in full time education.

[7]The claimant’s foster carer, KW, had obtained a special guardianship order in respect of AA, giving her parental responsibility for him, but not for the claimant. This was apparently because of AA’s much younger age when coming under the care of KW and the claimant’s sense of loyalty to his mother. In any event, responsibility for securing the claimant’s care and the safeguarding and promotion of his welfare, lay with Slough BC which it met in part by placing the claimant under the care of KW.

[8]In August 2009, Slough BC instructed solicitors to apply for indefinite leave to remain for the claimant. Such an application was made under cover of a letter dated 26th August 2009, on the basis, it was said, that the claimant’s long term future rested in the UK and that he was to remain in the care of Slough BC. That application was supported by a report from Slough BC dated 5th August 2009 confirming that, at that stage, the children were subject to interim care orders and cared for by Slough BC, pending determination of an application (subsequently granted) for a full care order. The report stated that the claimant’s mother and brother had indefinite leave to remain in the UK and that it was in the claimant’s best interests for him to be granted the same status.

[9]On 29th September 2010 the claimant was granted limited leave to remain until 27th November 2012, his 18th birthday. It is not clear why he was not granted indefinite leave. Nor is it clear why an application for registration as a British citizen was not made on behalf of the claimant at or before that time, though it appears likely by that stage that his long term future could properly have been said to be in the UK. The decision to grant temporary leave to remain is not, however, challenged in these proceedings and nor is it said that it was in any way flawed.

[10]On New Year’s Day 2012, the claimant was arrested for two separate offences – one relating to the possession of cannabis and one in respect of an alleged affray. The affray was not proceeded with (a district judge having found that the claimant had no case to answer in respect of it) but the claimant pleaded guilty to a charge of possessing cannabis for which he was given a six-month conditional discharge in April 2012 by the West London Juvenile Court. As I will come back to, at that point neither the claimant nor KW understood this to amount to a conviction.

[11]On 23rd November 2012, the claimant’s solicitors - who had previously acted on instructions from Slough BC to make an application on behalf of the claimant for indefinite leave to remain - applied on his behalf for registration as a British citizen pursuant to the discretion afforded the defendant under section 3(1), British Nationality Act 1981. This application was made four days before the claimant’s 18th birthday. The operative date for the purposes of determining the application was the date of receipt, namely 26th November 2012, one day prior to the claimant’s 18th birthday.

[12]The claimant’s background was fully set out in support of the application. The claimant described his ties to the UK, including that by then he had a little sister born in the UK (on 5th December 2009) who is a British citizen. He also referred to the difficulties that he had had to overcome in consequence of his unsettled family life. The difference between the lack of security, in terms of presence in the UK, as between him and his younger brother (and indeed sister) was also identified. A number of character references and other documents were included with the application demonstrating that whilst the claimant had had a difficult and disrupted family background and, perhaps unsurprisingly, some difficulties during adolescence (as described by KW in her letter of 15th November 2012 in support of his application), he was by the time of his application undertaking a plumbing course and enjoying a fulfilling and appropriate social life.

[13]The claimant did not declare his criminal conviction for possession of cannabis and the fact of his conditional discharge in the application form. This was because neither he nor KW understood that what had occurred constituted a conviction. There is no suggestion that they were anything but honest in that account. The claimant did refer to a spent youth referral order.

[14]By a letter dated 18th January 2013, the defendant refused the claimant’s application. This was on the basis that the claimant did not meet the “good character” requirements of the British Nationality Act 1981. The letter states:

“In certain circumstances, we would disregard a recent conviction for a single, minor offence but normally we would not grant citizenship to a person who has been …… convicted of a non-custodial offence in the last three years …. Your client was convicted on 19th April 2012 at West London Juvenile Court. As your client’s conviction is not one that we would normally disregard, nor can we find grounds to disregard it exceptionally outside our published policy, we cannot be satisfied that the good character requirement is met. The application has therefore been refused.”

[15]The letter went on to state that it was open to the claimant to apply again but an application made before 19th April 2013 would be “unlikely to succeed”. The letter went on to record that the defendant’s policy on “criminality” changed on 13th December 2012 (after the date of the claimant’s application) “whereby the Rehabilitation of Offenders Act 1974 is no longer used to determine whether an applicant is of good character for citizenship purposes.” It is not clear, then, that the claimant’s conviction will be disregarded even when “spent” should he choose to make a fresh application (the later decision of 6th June 2013 suggests that the conviction “will not be clear until 19th April 2015”). There is no reference in the letter to the offence for which the claimant was convicted or to the sentence (a conditional discharge), to his age, to the mitigating factors in play (such as his disrupted childhood), or to the evidence of his current good character as evidenced by the references from his foster carer and social worker showing real improvements in his behaviour and a commitment to study and training.

[16]On 5th March 2013, the claimant’s solicitor sought a review of the defendant’s decision. In that application, the claimant’s solicitors explained how the failure to declare the claimant’s criminal conviction arose, namely that both he and his foster mother believed that when they were informed no further action was to be taken – in relation to the charge dismissed – they had assumed that that applied equally to the cannabis charge to which the claimant had pleaded guilty at an earlier hearing. As I have already observed, the defendant does not take issue with this explanation – it was a genuine error and nor does the fact of non-disclosure appear anywhere in the contemporaneous documents as a reason for refusing the claimant’s application.

[17]The claimant’s solicitor set out further details about the claimant. They pointed out that the claimant had spent his formative years in the UK and that the UK was to all intents and purposes his home. They also pointed to the minor nature of the offence for which the claimant was convicted and the extent of the discretion available to the defendant in deciding whether the “good character” requirement was met, particularly in the case of a minor. They referred to the claimant’s age at the time of the conviction, to the nature of the conviction, and to what they contended were the “extremely compelling circumstances” in the claimant’s case warranting a departure from the “normal approach”.

[18]On 3rd May 2013, the defendant determined the claimant’s application for a review, and maintained the decision to refuse the claimant’s application for citizenship. This is the first decision that the claimant challenges in this claim. The letter recording the decision and giving reasons stated that: “Applications which are not covered by staff instructions or are not matched by agreed precedents or which do not justify the creation of a new precedent must fall for refusal. … As your client has no entitlement to registration, his case was considered in accordance with our published staff instructions…. The normal expectations for registration under section 3(1) BNA 81 are not met in your client’s case. Whilst I have noted your comments regarding your client’s circumstances and reasons why the conviction was not declared, his ability to meet the character requirement was assessed in accordance with published policy which reads: 9.17.29 In considering applications for the registration of children aged 16 or over we should, therefore, have regard to the standards of character required for the grant of citizenship to an adult at the Secretary of State’s discretion. (See Annex D to Chapter 18). Whilst your client has a single conviction it is not a conviction that can be disregarded due to its nature. Our published staff instructions at the time of your client’s application specifically state at chapter 8 annex D paragraph 3.2.5 caseworkers should not normally disregard any unspent convictions that involve drugs irrespective of the severity of the sentence imposed. This is applicable in your client’s case, his application was therefore refused correctly in accordance with the instructions published at Chapter 19.17.30. Whilst I have noted your comments regarding your client’s circumstances and why the conviction was not declared, I am unable to disregard this conviction as requested. I have also noted that your client does not currently have settled status in the UK. Insufficient grounds could be found to treat his case exceptionally and exercise discretion beyond the published policy, as agreed by Parliament.” …

[19]On 6th June 2013, the claimant’s solicitors sent a Pre-action Protocol letter to the defendant, setting out the basis for a proposed challenge to the decision of 3rd May 2013. They contended that the defendant had unlawfully fettered her discretion by a rigid application of her policy and that she should have exercised her discretion to grant registration given the exceptional circumstances of the claimant’s case and the requirement to give paramount consideration to the claimant’s best interests having regard to section 55 of the Borders, Citizenship and Immigration Act 2009 (to which I shall return), amongst other matters.

[20]On the same day, it appears, the defendant responded declining to alter her decision. The claimant treats this as a fresh decision - and it is the second decision under challenge in this claim - since it appears in essence to review the earlier decisions and does provide further reasons. In the defendant’s letter of 6th June, the defendant states that there had been “a number of applications from children currently in care who like your client have had difficult and disrupted childhoods”, presumably indicating that there was nothing special about the claimant’s circumstances. The decision letter went on that “unfortunately, in [the claimant’s] case no exceptional factors could be found that would warrant the use of such discretion that would allow his conviction to be disregarded outside of prevailing policy and current published instructions”. The defendant went on to state that: “Section 55 of the Borders Act 2009 was also given consideration in the course of determining your client’s application, alongside current Nationality instructions. The best interests of any child are always considered but not to the extent current policy and legislation is disregarded. Failure to register him as a British citizen under section 3(1) of BNA 1981 does not affect his day to day life, it is therefore concluded that section 55 of the Borders Act 2009 is not engaged in this case….. No grounds could be found to support the view that it would be in [the claimant’s] best interests to register him exceptionally, outside the published policy as agreed by Parliament”.

[21]This claim was issued on 2nd August 2013 and proceeds with the permission of Mr Justice Foskett granted on 3rd October 2013.

[22]In the meantime, the claimant had sought to regularise his immigration status by an application for further leave to remain. It appears that this was refused by a decision dated 21st January 2014. That decision was subject to an appeal heard before the First - Tier Tribunal (Immigration and Asylum Chamber) on 29th September 2014 which allowed the claimant’s appeal by a decision dated 31st October 2014. Findings of fact were made during the course of that hearing but as both parties agree, those findings of fact and the decision on appeal do not bear on the issues that are presently before me (though they may become relevant later, no doubt depending on the outcome of this claim).

[23]The claimant challenges the decisions of 3rd May 2013 and 6th June 2013 on four grounds: that in making the decisions, the defendant, firstly, fettered her discretion and consequently failed to have regard to material circumstances; secondly, failed to have regard to the claimant’s “best interests” though he was a child at the material time and, to the extent that the policy compels a disregarding of those interests, the policy and its application in the claimant’s case is irrational; thirdly, acted unlawfully in adopting and applying a blanket policy that treats sixteen and seventeen year olds as adults for the purposes of determining “good character” and fourthly, breached the claimant’s Article 8 and 14, ECHR rights.

Legal and Policy Context

[24]As to the legal and policy context for the defendant’s decisions, the starting point is section 3 of the British Nationality Act 1981 (side noted “Acquisition by registration: minors”). This provides for the registration of minors as British citizens, as follows:

“(1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.”

[25]As can be seen, in considering the application of section 3(1) to any case, it is the date of application for registration that is material, not the date of its determination. However, the date of determination may be highly material for other purposes, as I shall come to.

[26]The importance of citizenship is perhaps obvious but in addition to the subjective experience that may come with it - in particular affecting one’s sense of identity and belonging - a person who has a right of abode in the UK is free to live in, and to come and go to and from, the UK without let or hindrance (section 1(1), Immigration Act 1971). Such a person is in general free from immigration control. A person has the right of abode in the UK if he is a British citizen. So with British citizenship, the claimant would enjoy the comfort of complete security in knowing that he can come and go freely throughout his life. As the defendant’s decisions (albeit the latter overturned on appeal) on leave to remain in the claimant’s case make clear, that is no small matter.

[27]It is accepted that the claimant had no entitlement to citizenship but instead required the favourable exercise of the defendant’s discretion under section 3 of the British Nationality Act 1981 if it was to be granted to him. Section 41A(1) of that Act addresses “good character” and provides as follows: “(1) An application for registration of an adult or young person as a British citizen under section … 3(1)…. must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character. ….. (5) In this section, “adult or young person” means a person who has attained the age of 10 years at the time when the application is made”.

[28]In Hiri v SSHD

[2014] EWHC 254 (Admin)

, Lang J reviewed the authorities on “good character” and its application to naturalisation as follows:

“24. In R v Secretary of State for the Home Department ex p Al Fayed (No 2) [2001] Imm AR 134, Nourse LJ described the requirement of "good character" in these terms: "41. In R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763, 773F–G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances." 25. 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. Although the Secretary of State must exercise her powers reasonably, essentially the test for disqualification is subjective. … The Secretary of State's decision is only reviewable by the courts on traditional public law grounds. As Nourse LJ said in ex p. Al Fayed (No. 2): "40. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances.” ” "41. In R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763, 773F–G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances." "40. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances.” ”

[29]The defendant has published guidance covering the exercise of her discretion under section 3 of the British Nationality Act 1981 and her assessment of “good character” in any particular case.

[30]This is set out in Chapter 9 of the defendant’s “Nationality Instructions” in place at the time (“Registration of Minors at Discretion: Section 3(1) British Nationality Act 1981”).

[31]This provides that:

“9.1.5 It is important to remember that the guidance in this Chapter does not amount to hard and fast rules. It will enable the majority of cases to be dealt with, but because the law gives complete discretion each case must be considered on its merits. All the relevant factors must be taken into account, together with any representations made to us. If we do not, we are open to criticism for not exercising our discretion reasonably. 9.1.6 It is therefore possible to register a minor under circumstances that would normally lead to the refusal of an application or to refuse when normally a child might be registered if this is justified in the particular circumstances of any case.”

[32]The criteria applicable to minors applying for registration are set out under paragraph 9.17. It provides, as is material, that:

“9.17.2 The most important criterion is that the child's future should clearly be seen to lie in the UK. A reliable indicator should be the applicant's and/or the family's past behaviour. If that suggests an established way of life in the UK, and we have no reason to think that this will not continue, we should accept at face value that the child intends to live here. … Character 9.17.28 The character of a child becomes a more important consideration the nearer the child is to the age of majority. 9.17.29 In considering applications for the registration of children aged 16 or over we should, therefore, have regard to the standards of character required for the grant of citizenship to an adult at the Secretary of State’s discretion (See Annex D to Chapter 18). 9.17.30 We should normally refuse an application for a minor aged 16 or over if we consider these standards are not met. 9.17.31 We should also consider refusing an application for a minor aged less than 16 if available information suggests serious doubts about character.”

(emphasis added)

Character

[33]Annex D to Chapter 18, applicable to adults and to persons aged 16 and 17 (see paragraph 9.17.29 above) provides that:

“There is no definition of Good Character in the British Nationality Act 1981 and therefore no statutory guidance as to how this requirement should be interpreted or applied. However, nationality law makes clear that the Good Character test is to be applied to all persons over the age of ten who apply for naturalisation or registration as a British citizen [save in certain circumstances which do not apply here.] … The Secretary of State must be satisfied that the applicant is of good character on the balance of probabilities. To facilitate this, applicants must answer all questions asked of them during the application process honestly and in full. They must also inform the UK Border Agency of any significant event (for example, such as a criminal conviction) that could have a bearing on the good character assessment.”

[34]Section 2 of Annex D provides that “caseworkers should not normally consider applicants to be of good character if, for example, there is information to suggest” that “they have not respected, and/or are not prepared to abide by the law (for example, they have been convicted of a crime…)” (paragraph 2.1(a)).

[35]Section 3.2 of Annex D addresses applications made on or before 12th December 2012 (applicable in the claimant’s case, therefore). It states that such applications will be considered in light of the provisions of the Rehabilitation of Offenders Act 1974 and spent convictions disregarded in assessing the good character requirement. As I have already mentioned, the position would be otherwise after 12th December 2012 and accordingly were the claimant now to make a fresh application it would fall to be considered under the revised policy. Annex D also states that a “[f]ailure to declare an unspent conviction may itself cast doubt on the applicant’s truthfulness and therefore whether or not they are of good character” (paragraph 3.2.2). However, as I have already said the claimant’s failure to disclose his conviction is not given as a reason for refusing the claimant’s application for registration.

[36]Section 3.3 of Annex D then gives guidance on “when minor convictions may be disregarded”. It reads as follows:

“3.3.1 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: … b. an absolute or conditional discharge 3.3.2 Caseworkers should not normally disregard any conviction that falls into the following categories irrespective of the severity of the sentence imposed: … d. Offences involving drugs.”

[37]There is no reference made or distinctions drawn as to the age of the applicant or to the age at which any offending behaviour took place, or to the seriousness of the drugs offences.

[38]I interpose to observe that the defendant in this claim sought to argue that this Guidance had the seal of approval granted to it by Burnett J in R(FI by his litigation friend GI) v SSHD

[2014] EWHC 2287 (Admin)

. The defendant in my judgment is wrong about that. In FI, Burnett J was not concerned at all with the “good character” requirements. Further, as is apparent from the reasoning and decision in FI, the fact that a policy may be lawful on its face does not preclude illegality in its application to a particular case. Even if it is generally lawful, a person remains entitled to challenge any illegality in its application to his or her own case.

[39]The approach that a decision maker ought to adopt in applying the Nationality Instructions was reviewed, again by Lang J, in Hiri v SSHD

[2014] EWHC 254 (Admin)

. It is worth setting out her summary of the authorities and conclusions in that case at some length because of the light they shed on the issues that arise in this claim: “30. In SK (Sri Lanka), Stanley Burnton LJ described the Nationality Instructions, at [36], as "in the main practical instructions to decision makers as to how they are to go about deciding whether to be satisfied that an Applicant for naturalisation has shown that he is of good character"; not "guidance as to policy in the sense of a statement as to the Secretary of State's exercise of a discretion or power". Whilst this is obviously correct, the Instructions on the treatment of criminal convictions do appear to reflect a policy adopted by the Defendant, and it is apparent from the different versions of the Instructions which I have seen that the policy has changed from time to time. 31. The Defendant was entitled to adopt a policy, provided that she exercised her statutory function lawfully. The applicable principles were set out by Lord Browne-Wilkinson in R v Home Secretary ex parte Venables

[1998] AC 407

, at 496H: "When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd

[1919] 1 KB 176

; British Oxygen Co. Ltd. v Board of Trade

[1971] AC 610

[1983] 2 AC 613

, in which the House of Lords held that it was permissible to adopt general policy guidelines for determining whether applicants for housing had a "local connection" with the area (within the meaning of the statutory definition), provided that the authority reached its conclusion by reference to the facts of each individual case (per Lord Brightman at 627H -628B). 33. The Claimant also referred to a passage in the judgment of Sedley LJ in Pankina v Secretary of State for the Home Department

[2010] 3 WLR 1526

, at [28]: "A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week's dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule … then there is no discretion and no judgment to be exercised." 34. De Smith's Judicial Review 6th ed. (2007) helpfully explains the rationale behind these principles at paragraph 9-005: "The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness. While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case." 35. How do these principles apply in the circumstances of this case? In my judgment, in deciding whether an applicant for naturalisation meets the requirement that "he is of good character", for the purposes of the British Nationality Act 1981, the Defendant must consider all aspects of the applicant's character. The statutory test is not whether applicants have previous criminal convictions – it is much wider in scope than that. In principle, an applicant may be assessed as a person "of good character", for the purposes of the 1981 Act, even if he has a criminal conviction. Equally, he may not be assessed as a person "of good character" even if he does not have a criminal conviction. Plainly, criminal convictions are relevant to the assessment of character, but they are likely to vary greatly in significance, depending upon the nature of the offence and the length of time which has elapsed since its commission, as well as any pattern of repeat offending. So, in order to conduct a proper assessment, the Defendant ought to have regard to the outline facts of any offence and any mitigating factors. She ought also to have regard to the severity of the sentence, within the sentencing range, as this may be a valuable indicator of the gravity of the offending behaviour in the eyes of the sentencing court. Although I asked for details of the number of applications she has to process, none was provided. Her letter of 26th September 2012 stated that the majority of applicants do not have any unspent convictions. I was not provided with any evidence to support a view that it was too onerous for her to consider individual convictions. 36. The Defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her caseworkers, but it should not be applied mechanistically and inflexibly. There has to be a comprehensive assessment of each applicant's character, as an individual, which involves an exercise of judgment, not just ticking boxes on a form. 37. The Defendant's decision dated 11th May 2012 was made by an official in the UKBA, at grade "ECT1". In a one page letter, he referred to the conviction and the fact that it would not be spent until 17th November 2016. He concluded: "In certain circumstances we would disregard an unspent conviction. Our policy in this regard is published on our website …. It is highly unlikely that we would disregard an unspent conviction outside this policy. You were convicted on 17 November 2011 for a motoring offence for which you received a £100 fine. This will not be spent under the Rehabilitation of Offenders Act 1974 until 17 November 2016 As your conviction is not one that we would normally disregard, nor can we find grounds to disregard it exceptionally outside our published policy, we cannot be satisfied that the good character requirement is met. The application had therefore been refused. It is open to you to re-apply for citizenship at any time but an application made while you have an unspent conviction is unlikely to succeed." 38. In my view, this letter indicates that the assessment of the Claimant's character was based entirely upon the fact that he had an unspent conviction; there is no reference to any other aspect of his character and background. This was not an adequate assessment of the Claimant's character, as required by law. No references were sought from his employer, or his personal referees, and there was no interview with the Claimant. I also consider that the official made an error of law in stating that any departure from the "normal" policy in relation to the Claimant's conviction would be "highly unlikely": this indicates an excessive adherence to the terms of the policy, without proper consideration of the case on its individual merits. 39. The Claimant invoked the review procedure and a second decision was made on 29th June 2012 by a UKBA official with the grade of "ECT1 Senior Caseworker". This was also a one page letter which stated, inter alia: "…We do not examine the circumstances surrounding the conviction(s) nor any mitigating circumstances put forward at the time of conviction as this will have been considered by the court prior to sentence. We would not normally naturalise a person with an unspent conviction unless it is a 'one-off' minor offence, e.g. contravention of a motoring regulation, and we would not normally overlook an unspent conviction in any circumstances if it falls into one of the following categories, none of which we consider to be minor:a. Offences involving dishonesty (e.g. theft, fraud)

b. Offences involving violence

c. Offence involving unlawful sexual activity

d. Offences involving drugs

e. Offences which would constitute "recklessness" – e.g. drink-driving, excessive speeding, driving without tax/ insurance or whilst using a mobile phone.

f. Offences involving a serious deliberate criminal act that do not fit into points a) to d) above e.g. arson. You were convicted on 17 November 2011 for speeding and fined £100 and 5 penalty points. We do not consider this offence to be minor and could find no grounds to disregard it exceptionally outside our normal policy. As we could not be satisfied the good character requirement for naturalisation was met, his [sic] application was refused. … A fresh application made before 17 November 2016, i.e. the date on which your conviction becomes spent, is unlikely to be successful." 40. The Claimant's application for review was supported by unusually strong evidence of his good character from a senior army officer, whose reliability as a referee was not in question. … 42. In my view, it is apparent from the letter of 29th June 2012 that the official did not properly weigh in the balance the strong countervailing evidence of the Claimant's good character against the fact of his conviction. He applied the terms of the Instructions mechanistically and inflexibly, concluding that as he had a conviction for an offence which involved "excessive speeding" within paragraph 3.2.5(e), he was not "of good character". 43. The official deliberately excluded from his consideration the circumstances of the offence and the mitigating factors, on the grounds that these would have been taken into account by the court prior to sentence. The implication is that the severity of the sentence imposed by the court would be an indication of the seriousness of the offending behaviour. However, paragraph 3.2.5. of the Instructions states that it applies "irrespective of the sentence imposed", and no consideration was given to the fact that the Claimant's sentence was at the lower end of the sentencing range. 44. Paragraph 3.2.5 identifies types of offending behaviour such as dishonesty, violence, sexual offences, arson, and drug abuse which are viewed particularly seriously by the Defendant and she instructs that they should not normally be disregarded when assessing character. Also included in the list are driving offences which, in her view, "constitute recklessness", such as drink driving, driving without tax/insurance, using a mobile telephone, and "excessive speeding". Since under paragraph 3.2.5, it is the type of offending behaviour which triggers more stringent treatment, it was all the more important to assess the circumstances of the offence… 45. The sentence imposed was at the lower end of the range, reflecting the nature of the offence and his mitigation… 46. The May and June decisions were reviewed by the Defendant on 26th September 2012, in her response to the Claimant's pre-action letter. This was a much more detailed letter, written by an official at CT3 grade in the UKBA. The material parts of the letter stated: "Your client was driving at 81 mph in a 50 mph zone – over 60% faster than the speed limit in force at that time and in excess of the maximum UK speed limit of 70 mph. Whilst no legal definition of "excessive speeding" may exist, the Secretary of State is of the opinion that exceeding the speed limit to this extent constitutes excessive speeding and as such, would not normally disregard an unspent conviction resulting from this offence having been committed."...Furthermore, the fact that the applicant has served in the armed forces for four years does not alter the fact that he is required to meet the good character requirement for naturalisation in the same manner as those received from civilians. Since the established policy does not cover your client's particular circumstances, I have looked for a precedent where we have naturalised an applicant who has an unspent speeding conviction where the speed was considered excessive. As there are no existing precedents that match his circumstances, I have considered whether they are sufficiently different from other applicants who have unspent speeding convictions to justify your client's naturalisation. I can see no grounds which might support the view that the circumstances of your client's conviction are sufficiently different to those where applications are routinely refused to warrant applying discretion exceptionally in the face of established policy. Having fully reviewed the case, I disagree that the decision to refuse was irrational, disproportionate and unreasonable. As detailed above, the decision was taken fully in accordance with nationality law and published policy, and as such, there are no grounds to reopen the case and naturalise your client as a British citizen." 47. Although the official had Major Plimmer's reference and the Claimant's solicitor's letter referring to evidence of his good character, she did not weigh the powerful countervailing evidence of good character in the balance, in order to make an overall assessment of his character, as is required. When deciding that she could find no grounds upon which to depart from the normal policy in respect of offences of excessive speeding, she made no mention of the factors pointing to his good character. … 49. As in the case of the June letter, no regard was given to the circumstances of the offence, the mitigating factors or the severity of the sentence imposed. For the reasons I have already given, this meant that the assessment was inadequate. 50. In my view, the September letter demonstrates how inflexibly the policy on criminal convictions was being applied in practice, since the official considered she had to find a precedent case to justify a finding that the Claimant was "of good character". The Claimant was entitled to have his application determined on its individual merits, even if his case was unique. As the extract from De Smith states, public law requires "the full rigour of certainty and consistency [to] be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case." … 53. The Claimant submitted that the references in the decision letters to overlooking or disregarding the Claimant's convictions demonstrated an erroneous approach in law. 54. These terms are in the Instructions, and so it is understandable that the officials used them. However, I agree with the Claimant that his conviction should not be overlooked or disregarded; it should be weighed in the balance against the countervailing evidence of good character, in order to assess his character as a whole.” "When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd

[1919] 1 KB 176

; British Oxygen Co. Ltd. v Board of Trade

[1971] AC 610

. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp 506 et seq., paras 11-004 et seq." "A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week's dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule … then there is no discretion and no judgment to be exercised." "The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness. While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case." "In certain circumstances we would disregard an unspent conviction. Our policy in this regard is published on our website …. It is highly unlikely that we would disregard an unspent conviction outside this policy. You were convicted on 17 November 2011 for a motoring offence for which you received a £100 fine. This will not be spent under the Rehabilitation of Offenders Act 1974 until 17 November 2016 As your conviction is not one that we would normally disregard, nor can we find grounds to disregard it exceptionally outside our published policy, we cannot be satisfied that the good character requirement is met. The application had therefore been refused. It is open to you to re-apply for citizenship at any time but an application made while you have an unspent conviction is unlikely to succeed." "Your client was driving at 81 mph in a 50 mph zone – over 60% faster than the speed limit in force at that time and in excess of the maximum UK speed limit of 70 mph. Whilst no legal definition of "excessive speeding" may exist, the Secretary of State is of the opinion that exceeding the speed limit to this extent constitutes excessive speeding and as such, would not normally disregard an unspent conviction resulting from this offence having been committed."...Furthermore, the fact that the applicant has served in the armed forces for four years does not alter the fact that he is required to meet the good character requirement for naturalisation in the same manner as those received from civilians. Since the established policy does not cover your client's particular circumstances, I have looked for a precedent where we have naturalised an applicant who has an unspent speeding conviction where the speed was considered excessive. As there are no existing precedents that match his circumstances, I have considered whether they are sufficiently different from other applicants who have unspent speeding convictions to justify your client's naturalisation. I can see no grounds which might support the view that the circumstances of your client's conviction are sufficiently different to those where applications are routinely refused to warrant applying discretion exceptionally in the face of established policy. Having fully reviewed the case, I disagree that the decision to refuse was irrational, disproportionate and unreasonable. As detailed above, the decision was taken fully in accordance with nationality law and published policy, and as such, there are no grounds to reopen the case and naturalise your client as a British citizen."

[40]Lang J concluded that the decision-making process was legally flawed, and that the defendant should re-consider the application, in accordance with the law. The similarities in the approach adopted by the decision maker in Hiri and that in the claimant’s case are self-evident.

[41]Also of relevance to the claimant’s case, he contends, is section 55 of the Borders, Citizenship and Immigration Act 2009, which came into force on 2nd November 2009. This provides that:

“(1) The Secretary of State must make arrangements for ensuring that - the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom… (2) The functions referred to in subsection (1) are – any function of the Secretary of State in relation to immigration, asylum or nationality …” any function of the Secretary of State in relation to immigration, asylum or nationality …”

[42]As is apparent, section 55 will be relevant to the making of a decision on registration in the case of a child. Ordinarily a refusal to register a child as a British citizen will have an impact on their “best interests” (to which section 55 is directed) (R (FI by his litigation friend GI) v SSHD

[2014] EWHC 2287 (Admin)

, paragraph 22), notwithstanding the defendant’s suggestion otherwise in their decision letter of 6th June 2013.

[43]The question whether section 55 applied to the making of the defendant’s decisions in the claimant’s case (an issue on which the defendant’s position has altered) is addressed below.

[44]In addition to section 55 of the 2009 Act, the claimant relies on material provisions of the United Nations Convention on the Rights of the Child (UNCRC).

[45]Article 3(1) of the UNCRC provides that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

[46]A child for the purposes of the UNCRC is “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”(Article 1). As I shall come back to, the claimant therefore asserts that if a “bright line” is to be drawn between adults and children, it should be drawn at age eighteen, not sixteen, as paragraph 19.17.29 and Annex D do. For this, the claimant relies on the decisions in R (HC) v SSHD and Commissioner of Police of the Metropolis

[2013] EWHC 982 (Admin)

;

[2014] 1 WLR 1234

, paragraphs 75-89 and R (Refugee Action) v Secretary of State for the Home Department

[2014] EWHC 1033 (Admin)

, paragraphs 155-158.

[47]The UNCRC makes explicit provision in relation to offending behaviour by children and gives considerable weight to the need to ensure that rehabilitative aims are promoted in dealing with a child’s offending. Article 40 of the UNCRC thus provides that:

“(1) States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

[48]The need to promote the rehabilitation of children who have offended is reflected in the UK’s youth justice system and the statutory framework in which it sits (see, for example, Children and Young Persons Act 1933, section 44) and that need has been acknowledged judicially (see, R(R) v Durham Constabulary

[2005] UKHL 21

;

[2005] 1 WLR 1184

, paragraph 24 per Baroness Hale: “It is in everyone’s interest that children should be brought up to be decent law-abiding members of society. Both national and international law recognise that the criminal justice system is part of that process of bringing them up. The straightforward retributive response which is proper in the case of an adult offender is modified to meet the needs of the individual child.”).

[49]In ZH (Tanzania) v SSHD

[2011] UKSC 4

;

[2011] 2 AC 166

, Lady Hale (with whom the other justices agreed) considered the significance of Article 3, UNCRC in that case in determining the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents. As Lady Hale observed:

“For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3.1 of the UNCRC...... This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.” [The defendant]acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8.2. Both the Secretary of State and the tribunal will therefore have to address this in their decisions. Further, it is clear from the recent jurisprudence that the Strasbourg court will expect national authorities to apply article 3.1 of UNCRC and treat the best interests of a child as “a primary consideration”” (paragraphs 23-25; see too paragraph 46, per Lord Kerr).”

[50]If section 55 were engaged then it would be very significant for the issues that arise in the claimant’s case. I address its application below.

[51]As to Article 8, ECHR (Human Rights Act 1998, Sch 1) on which the claimant in this claim also relies, it provides that:

“1. Everyone has the right to respect of his private life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

[52]As is well-known, in an immigration context the Razgar formulation is generally adopted in determining whether any violation of Article 8 has occurred. The five stage test requires the following questions to be answered: “1. Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for this private or (as the case may be) family life? 2. If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? 3. If so, is such interference in accordance with the law? 4. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? 5. If so, is such interference proportionate to the legitimate public end sought to be achieved?” (Razgar v SSHD

[2004] UKHL 27

;

[2004] 2 AC 368

at paragraph 17, per Lord Bingham)

[53]Razgar concerned a removal but the framework set out above is equally apt to test the issues that arise in this claim.

[54]The defendant says that Article 8 is not ordinarily engaged in the context of a naturalisation decision, relying on the decision in AHK v Secretary of State for the Home Department

[2013] EWHC 1426 (Admin)

. AHK was a very different case to the claimant’s. The background to AHK concerned the impact of a refusal to grant naturalisation based on the requirement for “good character” where limited reasons were given because according to the Secretary of State it would have been harmful to national security to do so.

The judge in that case, Ouseley J, noted that:

“The engagement of Article 8 has already received some consideration in these cases. In MH and Others v SSHD [2008] EWHC 25, the first instance directions decision which was under appeal in AHK v SSHD [2009] EWHC Civ 287, [2009] 1WLR 2049, Blake J held that in the cases before him, (which included the four individuals in this hearing): “grounds for refusing naturalisation that the Claimants would otherwise qualify for, do have an adverse impact on social reputation, render it more difficult to travel, and leave the Claimants in a vulnerable state of either statelessness as refugees, or unable to obtain future security as to their continued residence here.” (paragraph 41)” “grounds for refusing naturalisation that the Claimants would otherwise qualify for, do have an adverse impact on social reputation, render it more difficult to travel, and leave the Claimants in a vulnerable state of either statelessness as refugees, or unable to obtain future security as to their continued residence here.” (paragraph 41)”

[55]Ouseley J went on: “A submission that the mere nature or degree of effect of a refusal of naturalisation, without some further quality of arbitrariness or discrimination, suffices to engage Article 8 seems to me ill-founded on [the] ECtHR jurisprudence. It has not actually held, so far as I am aware, that where the refusal of naturalisation impacts sufficiently seriously on any of the aspects of life covered by the full width of Article 8, it is then for the state to prove why it should not be granted.” (paragraph 45)

[56]In the judgment of Ouseley J, then, case law from ECtHR did not go so far as to require the state to justify a refusal of naturalisation absent an arbitrary or discriminatory decision, pointing in particular to the decision of the ECtHR in Genovese v Malta

[2012] FLR 10

in which the court reiterated that Article 8 does not guarantee a right to acquire a particular nationality (paragraph 30). However, the court in Genovese went on to hold that “the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity” (paragraph 33). With the greatest of respect, I do not, therefore, read Genovese as precluding a claim under Article 8 in respect of a refusal to grant naturalisation where the necessary threshold for the engagement of Article 8 is met (see, Razgar, supra; AG (Eritrea) v SSHD

[2007] EWCA Civ 801

, paragraph 28 and VW (Uganda) and AB (Somalia) v SSHD

[2009] EWCA Civ 5

at paragraph 22). The facts in AHK were very different from here. They concerned adults each of whom were refused naturalisation but without any impact on their existing status or ability to live with their family or ability to travel. Whilst they may have felt less secure in their future that did not engage Article 8 and any perceived risk of reputational damage did not add much according to Ouseley J. The impact on the claimant of a refusal of citizenship nationality is likely to be very different. This is because his home and future are rooted in the UK; both his siblings are British citizens (AA was not granted citizenship until 24th September 2013 - after the claimant’s refusal – but the fact of his impending application was made known to the defendant in the claimant’s application: see, letter from claimant’s solicitors to the defendant, dated 23rd November 2012) and he has had a disrupted childhood. These factors are likely to mean that a sense of belonging and security will be of special importance to his continuing development. In any event, for reasons I give later on, I consider the reason for the refusal of the claimant’s application arbitrary.

[57]Further, where the interests of a child are involved, the provisions of the UNCRC will be relevant to any Article 8 enquiry. In particular, if Article 8 is engaged “then it must be interpreted in harmony with the general principles of international law including …. the UNCRC” (R (C) v Secretary of State for the Home Department

[2013] EWHC 982 (Admin)

;

[2014] 1 WLR 1234

, paragraph 81, per Moses LJ; see too, paragraphs 80-84, 86, 89).

[58]The Grand Chamber in Maslov v Austria (1638/2003) [2009] INLR 47 considered the impact of Article 40, UNCRC in the case of a child (aged sixteen) subject to an expulsion order made in consequence of his criminal offending, in the context of an Article 8 claim:

“The Court considers that where offences committed by a minor underlie an exclusion order, regard must be hadto the best interests of the child. The Court’s case-law under Article 8 has given consideration to the obligation to have regard to the best interests of the child in various contexts ... The Court considers that the obligation to have regard to the best interests of the child also applies if the person to be expelled is himself or herself a minor, or if – as in the present case – the reason for the expulsion lies in offences committed when a minor. In this connection, the Court observes that European Union law also provides for particular protection of minors against expulsion (…Article 28 § 3 (b) of Directive 2004/38/EC). Moreover, the obligation to have regard to the best interests of the child is enshrined in Article 3 of the United Nations Convention on the Rights of the Child ... 83. The Court considers that, where expulsion measures against a juvenile offender are concerned, the obligation to take the best interests of the child into account includes an obligation to facilitate his or her reintegration. In this connection, the Court notes that Article 40 of the Convention on the Rights of the Child makes reintegration an aim to be pursued by the juvenile justice system….. In the Court’s view this aim will not be achieved by severing family or social ties through expulsion, which must remain a means of last resort in the case of a juvenile offender… 84. In sum, the Court sees little room for justifying an expulsion of a settled migrant on account of mostly non-violent offences committed when a minor… 85. Conversely, the Court has made it clear that very serious violent offences can justify expulsion even if they were committed by a minor…”

[59]In Maslov, the applicant had committed a series of offences over a period of a year and three months when aged fourteen and fifteen years old (paragraph 77). They were of a certain gravity in consequence of which he was sentenced to a total of two years and nine months unconditional imprisonment (paragraph 80). The Grand Chamber concluded that, having regard to, in particular the (with one exception) non-violent nature of the offences committed whena minor and the State’s duty to facilitate his reintegration into society, the length of the applicant’s lawful residence in Austria, his family, social and linguistic ties with Austria and the lack of proventies with his country of origin, the imposition of an exclusion order, even of a limited duration, was disproportionate (paragraph 100). Consequently, there had been a violation of Article 8 (paragraph 101).

[60]Where a decision made in respect of a child falls within the scope of the UNCRC, then, its provisions should be had regard to in determining the applicability of Article 8 and compliance with it. In this respect, the facts of this case are very different to those in AHK. If Article 3 and/or 40 are applicable in the claimant’s case, then that may inform the answer to the question whether there was any interference in Article 8 by reason of the refusal to grant his application for registration as a British citizen, in addition to whether there was any justification for such interference.

[61]The issue then arises whether the claimant was a “child” at material times for the purposes of section 55 of the 2009 Act and/or the UNCRC. The UNCRC treats as a child a person below the age of 18, as does section 55, Borders, Citizenship and Immigration Act 2009 (section 55(6))which translates the “spirit” of Article 3 into national law; ZH (Tanzania), paragraph 23, per Baroness Hale). A decision taken without regard to section 55 where it applies will not be “in accordance with the law” for the purpose of Article 8(2) ZH (Tanzania), paragraph 24, per Baroness Hale).

[62]The defendant in this case says that since the claimant was over the age of 18 when his application was determined, these provisions do not bite. The defendant also points out that no blame can be attached to her for the fact that the claimant did not enjoy any benefit that these provisions may have conferred (and none is admitted) because the fact that his application was determined after he reached the age of 18 was attributable to the fact that it was not received until one day before his 18th birthday. Certainly the Secretary of State cannot be criticised for not deciding the application before the claimant’s 18th birthday when it was received only a day before. Given those circumstances, the defendant says, the judgment of the Court of Appeal in KA (Afghanistan) v SSHD

[2013] 1 WLR 615

does not assist the claimant, as the claimant asserts, and indeed supports the defendant’s contention that section 55 cannot apply to the decisions in the claimant’s case.

[63]In KA, the central issue concerned the Secretary of State’s failure to comply with her “tracing” duties and section 55 in the case of the claimants who were, at material times but not at the date of the relevant decisions, minors. The claimants, who entered the United Kingdom as unaccompanied minors, were granted leave to remain until the age of 17 ½ years. At aged 17 they applied for asylum/humanitarian protection and were refused. The question arose whether the claimants enjoyed the continued advantage of their minority on appeals against those refusals though the appeals were not heard until after the claimants had attained their majority. Much of the lead judgment in that case (delivered by Maurice Kay LJ) concerned the meaning and extent of the duty to trace and the impact of a failure to comply with that duty on a subsequent asylum application. Of importance to this claim, the court considered the impact of an historic failure to comply with duties owed to minors on a later decision, post the attainment of their majority. The Court of Appeal considered the impact of the principle (which it titled the Rashid/S principle in recognition of the cases from which it originated) that whilst the Secretary of State’s discretion in any case should be exercised on the basis of present circumstances, those circumstances might include the present need to remedy injustice caused by past illegality. In KA, the court concluded on the facts as they appeared in the cases before it, that “even if [a claimant] has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace” (paragraph 25). The Court of Appeal did not, it seems to me, suggest that section 55 of the 2009 Act had any freestanding life after the age of majority, merely that a breach of it in the case of a child may be a relevant factor in the exercise of discretion when that child had reached adulthood.

[64]Drawing these threads together, in my judgment the following principles emerge from the case law and apply where the defendant is determining whether the “good character” standard is met in the case of a child: a) The defendant may only exercise her discretion to grant citizenship under section 3 where she is satisfied that the person concerned is of “good character” (section 41A(1), British Nationality Act 1981). b) In determining whether she is so satisfied, the defendant must make an evaluation of the applicant's character based on all of the material before her. In the case of criminal convictions she will need to take into account the seriousness of the offence, mitigating factors and the severity of any sentence. In assessing the relevance of any convictions for offences committed as a child (that is, under the age of 18), regard will need to be had to the rehabilitative objectives reflected in Article 40 of the UNCRC and the primacy given there to “reintegration.” c) The defendant must have proper regard to the guidance in the Nationality Instructions in undertaking any assessment of character but these cannot and should not fetter the exercise of the defendant’s discretion in any particular case. The policy reflected in the Instructions must not be applied mechanistically and inflexibly. There must be a comprehensive assessment of character in each case which involves an exercise of judgment. It seems to me too that since it is axiomatic that the opportunities for a child or young person to establish “good” character are likely to be more limited than in the case of an adult (who may refer to patterns of employment, contributions to community or public life and the like) account must be taken of that in weighing the matters relied upon to establish good character as against those pointing the opposite way. d) Article 8 may be engaged by a decision not to grant citizenship where the necessary threshold for an interference is reached but in any event where that decision is arbitrary or discriminatory. Further, in assessing whether there is justification for any interference with Article 8 in the case of a child (that is a person under the age of 18), regard will need to be had to the material provisions of the UNCRC. There may be little room for justifying an interference with Article 8 where reliance is placed on (at least) non-violent offences committed when a minor, that is under the age of 18, having regard to the terms of Article 40 of the UNCRC. e) Whilst section 55 of the 2009 Act may be material to the exercising of a relevant discretion in the case of an adult where there has been an historic failure to comply with section 55 which has led to a present injustice, it does not otherwise apply to the exercising of functions at a time when a person has reached the age of majority.

Conclusions

[65]I shall take each of the claimant’s grounds in turn.

[66]Firstly,it is clear to me that the defendant failed to properly exercise the discretion Parliament conferred upon her by section 3 of the 1981 Act but instead rigidly adhered to the policy expressed in paragraph 19.17.29 and Annex D (“in considering applications for the registration of children aged 16 or over we should…. have regard to the standards of character required for the grant of citizenship to an adult at the Secretary of State’s discretion” and ”caseworkers should not normally disregard any conviction .. [for] offences involving drugs”) and in doing so unduly fettered her discretion. The fact that the defendant has a policy relating to the matters relevant to the assessment of “character” on convictions is itself unobjectionable but she must exercise her discretion lawfully in respect of each application she receives.

[67]As is evident from defendant’s decision letters of 18th January 2013, 3rd May 2013 and 6th June 2013, the only matter considered by the defendant as relevant to the exercise of her discretion was the existence of a conviction for a drugs offence. In the first decision under challenge, the inflexible and mechanistic approach to the policy is readily apparent (“Whilst your client has a single conviction it is not a conviction that can be disregarded due to its nature. Our published staff instructions at the time of your client’s application specifically state … caseworkers should not normally disregard any unspent convictions that involve drugs irrespective of the severity of the sentence imposed. This is applicable in your client’s case, his application was therefore refused correctly in accordance with the instructions”). As the defendant made clear, in accordance with the Instructions the fact of the conviction was sufficient alone to make a refusal almost inevitable (if not indeed inevitable) however serious the offence or severe the sentence. In the claimant’s case, of course, it was (plainly) the most minor of drug offences with a sentence at the very lowest end imposed. There is a world of difference between the importation of Class A drugs, on the one hand, and the possession of a small amount of cannabis for personal use on the other, but the defendant’s Instructions make no distinction between the two. The inflexibility of the approach adopted by the defendant is apparent too in her failure to consider any mitigating features of the claimant’s case. These included the claimant’s difficult background, which would have been troubling for any young person. It also included his age at the date of conviction. No doubt this is because Annex D is intended to apply to any applicant aged 16 or 17, whenever the crime concerned was committed (as Mr Gullick has confirmed in counsel’s “joint additional note”). The latter is especially important given the State’s obligations under Article 40, UNCRC.

[68]The defendant adopted the same approach in her letter of 6th June 2013. Apart from the reference to section 55 of the 2009 which I have set out above, the letter is in substance the same.

[69]No other features of the claimant’s case find expression in the defendant’s decision letters. There appears to have been no consideration given to the fact that the claimant’s future could clearly be seen to lie in the UK given the length of time that he had been present in the UK and his family and other ties, or to the other matters addressed by his referees. There was no weighing in the balance the countervailing aspects of the claimant’s character, instead the focus was entirely on his (minor) conviction which assumed prime importance.

[70]This itself reveals an unlawful exercise – or a fettering – of the defendant’s discretion warranting the quashing of her decisions to refuse the claimant registration as a British citizen. I have not overlooked the fact emphasised by Mr Gullick in argument that the Nationality Instructions refer in terms to the discretion that must be exercised by the decision maker in each case, and the need to ensure that the guidance is not treated as amounting to “hard and fast rules” (paragraph 9.1.5). However, in this case it is very clear that the decision maker did indeed treat the Instructions as imposing hard and fast rules and did not exercise any evaluative judgment of the sort required.

[71]As to the claimant’s second ground, the claimant contends that the defendant acted unlawfully in failing to have regard to his “best interests”, in particular under section 55 of the Borders, Citizenship and Immigration Act 2009. The defendant’s position in relation to this point has somewhat shifted. As can be seen from the extracts from the defendant’s decision letter of 6th June set out above, the defendant appears to have proceeded on the basis that section 55 could have been engaged but for the fact (the defendant said) that a failure to register the claimant did not affect his “day to day life”. The defendant now says that section 55 could not have been relevant in any event since the claimant was over 18 at the date the defendant made the decisions under challenge. In my judgment, though the defendant was wrong in the view (which presumably she intended to convey by the terms of her decision) that a child’s best interests would not be affected by a decision on registration (see, R(FI by his litigation friend GI) v SSHD

[2014] EWHC 2287 (Admin)

, paragraphs 22 and 26, per Burnett J), section 55 did not in fact apply to the making of the decision in the claimant’s case. This was because of his age at the date the decisions under challenge were taken. I am mindful of the fact that section 3 of the 1981 Act focuses on the age of the applicant (whether they were a child) at the date of “application” – and the claimant was a child at the date of his application – and much of the guidance in the Nationality Instructions proceeds on that basis. However, section 55 is concerned with the date on which a relevant function is exercised. It seems to me that the relevant functions here are the assessment and determination of the claimant’s application for registration, at which point the claimant was an adult.

[72]Whilst in the limited circumstances that I have described above, section 55 might be relevant to a decision made in the case of an adult (to remedy an injustice caused by a past failure to comply with it), those circumstances do not pertain in the claimant’s case. If it could be said that the fact that the claimant’s application for registration was not determined until after his 18th birthday, so depriving him of the benefit of section 55, was attributable to some failure by the defendant, then this might be a relevant consideration. However, the defendant cannot be criticised for failing to determine the claimant’s application until after his 18th birthday when it was only made one day before it.

[73]Thirdly, the claimant contends that the defendant acted unlawfully in adopting and applying a blanket policy that treats sixteen and seventeen year olds as adults for the purposes of determining “good character.”

[74]The defendant says in her Detailed Grounds of Defence that there was no blanket policy that a child of 16 or 17 would be treated as if s/he were an adult for the purposes of “evaluating their criminality” (paragraph 44, Detailed Grounds of Defence). She also says that the provisions addressing convictions are responsive to the sentencing arrangements since a sentencing court “would have already considered the fact that the person was a minor when applying a sentence commensurate with the offence(s) in question” and an applicant is not entitled to a “double discount” (paragraph 51). The second of these points was not pursued in argument before me by Mr Gullick (who did not settle the Detailed Grounds of Defence) no doubt for good reason. It is unclear what is meant by it. If it is suggested that it would be to confer an unjustified benefit on a younger applicant if he were to enjoy a “more lenient” (as it is put in the Defence) sentence for his crime because of his youth and then have the fact of that leniency taken into account in an application for registration, then that is a hopeless argument. Apart from anything else, Annex D does not look to sentencing where drugs offences are concerned (a criticism I have already made); it looks only to the character of the offence. Further, and in any event, there is no “double discount” in taking account of the seriousness of any sentence – it is indicative of the seriousness of the crime. It would be rational to take account of it and may in some cases be irrational or arbitrary to ignore it.

[75]Mr Gullick focussed on the first argument – that there was no blanket policy. He pointed again to the continued references to “discretion” and to the qualification “normally” in parts of the guidance. However, as with the observations above, it is quite apparent that the policy reflected in the Instructions of treating child applicants aged 16 and over as adults for the purposes of the “good character” requirement was treated as a blanket rule, at least in the claimant’s case. In any event, on the face of the Instructions a distinction is drawn between children aged 16 and over and those below so that “normally” an application from a child aged 16 or over will be refused if the adult “good character” requirements are not met (paragraph 19.17.29-30). It is said, therefore, that the Instructions on their face are unlawful.

[76]In my 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. Such a distinction is not one that is found in any of the applicable statutory provisions (cf. R (C) v Secretary of State for the Home Department

[2013] EWHC 982 (Admin)

;

[2014] 1 WLR 1234

, paragraph 77). It is contrary to the approach adopted by the UNCRC; section 55 of the 2009 Act (which will commonly be applicable and did not apply in the claimant’s case only because of the lateness of the application) and section 3 of the 1981 Act, all of which treat minors as those under 18 years of age (a “minor” is a person “who has not attained the age of eighteen years”; section 50(1), 1981 Act). It also frustrates the objects reflected in Article 40, UNCRC and those of our domestic juvenile criminal justice scheme and is inconsistent with the case law under Article 8 (to which I return below). The context for the making of the distinction is described at paragraph 19.17.28 set out above (“The character of a child becomes a more important consideration the nearer the child is to the age of majority”). But as I have already mentioned, the distinction is drawn not by reference to the age at which an offence was committed, but by reference to the age at application. There might be a rational basis for weighing convictions for offences committed very close to the age of majority more heavily in the balance (particularly where serious or violent offences) than those committed at a younger age. But that is not what the impugned Instructions say. Accordingly, paragraph 19.17.29 -30 with Annex D to the extent that they treat differently an applicant aged 16 or 17 from applicants under the age of 16 fail the test of rationality and are to that extent unlawful.

[77]Fourthly, the claimant says that the defendant acted in breach of the claimant’s rights under Articles 8 and 14 (read with Article 8). I accept the claimant’s argument that his application for registration as a British citizen and its determination fell within the scope of Article 8 and reached the threshold for its engagement. It touched closely on his family life given that it would have been plain that the future of his siblings (and probably his mother) lay in the UK. It also touched upon his “private life” given the breadth of that expression. Article 8 captures the right to develop and maintain relationships with others (see, for example, R (C), paragraph 79) and for the claimant that included with his siblings, mother and foster carer. In some cases it may also cover social identity (Maslov, paragraph 63), something which may be especially important in the case of the grant of citizenship (see, by analogy the comments of Burnett J in FI on the applicability of section 55 of the 2009 Act in this context; paragraphs 15 and 22). The refusal of the claimant’s application in my view interfered with both his family life and his private life 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. I accept that not every refusal of citizenship will engage Article 8 but the claimant’s ties to the UK were particularly strong – his future plainly lies in the UK, a matter which is said by the defendant to be of first importance in the case of a minor (paragraph 19.17.2 of the Instructions, see above) – and the stability and sense of belonging that would likely follow the grant of citizenship would be especially important in a young person who had experienced such disruption in his childhood. Even if I am wrong in my conclusion that Article 8 applies because of these matters - for the reasons given by Ouseley J in AHK v Secretary of State for the Home Department

[2013] EWHC 1426 (Admin)

– in my judgment the refusal of registration in the claimant’s case involved a further quality of arbitrariness.

[78]It is this arbitrariness that also makes the interference unjustifiable under Article 8(2), especially when read with the UNCRC. There is no rational basis for distinguishing between a child of 16 or above and a child below that age in this context. As I have already said, the British Nationality Act 1981 does not make that distinction and nor does the UNCRC. The stated basis for the distinction (viz. the character of a child becomes a more important consideration the nearer the child is to the age of majority) is not rationally connected to the line drawn since the policy does not concern itself with the age of the applicant at the date of conviction but instead at the date of application. An applicant aged 17 ½ will be treated in the same way whether a conviction relates to an offence committed at age 11 or 17. The distinction drawn by the policy reflected in the Nationality Instructions and its application in the claimant’s case is entirely arbitrary. That arbitrariness is aggravated by the absence of consideration given to mitigating or other circumstances and the fact that it is in friction with the UK’s obligations under Article 40 of the UNCRC. There is no rational connection between the stated aims of the defendant and/or Article 8(2) and in the circumstances the interference, arbitrary as it is, cannot be said to be necessary in pursuit of any such aim or proportionate. For this reason too I hold that the decision in the claimant’s case was unlawful.

[79]In view of my decision on Article 8, it is unnecessary for me to consider Article 14, the claimant’s claim in respect of which in essence covers much of the same ground as his claim under Article 8.

[80]For completeness, at the hearing of this claim and in reliance upon the decision of the Upper Tribunal in Omemna (Conditional discharge – not a conviction of an offence)

[2014] UKUT 00314

(IAC), Mr Chirico argued that a conditional discharge – the sentence handed down for the claimant’s conviction – does not constitute a “conviction” and so did not need to be declared by the claimant in any event. This was not a pleaded argument (the decision of the Upper Tribunal post dated the date of the claim) and a formal amendment to the grounds was not sought. In any event, the holding in Omemna seems more complex than the short argument I describe might suggest. Further the claimant accepts that if I find that the claim succeeds on other grounds, it may be unnecessary to reach a settled conclusion on this point. I have found that the claimant has succeeded on other grounds and in view of that I consider that it is unnecessary for me to decide the point.

[81]For the reasons given above the claim succeeds and the defendant’s decisions refusing the claimant registration as a British citizen are quashed and the claimant’s application for British citizenship falls for reconsideration.

[82]Finally, I must apologise to the parties for the delay in handing down this judgment. The vacation period followed by an extended period out of London has meant that there have been difficulties in finding a date on which I could hand down.

SA, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1611 (Admin)

Factual Background

Legal and Policy Context

Character

The judge in that case, Ouseley J, noted that:

Conclusions

Cited in 4 later judgments