Al Enein, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 1615 (Admin)

Case No CO/1247/2017[2018] EWHC 1615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 June 2018
Before
RHODRI PRICE LEWIS QC(Sitting as a Deputy Judge of the High court)
Between
THE QUEENClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Philip Nathan (instructed by Oaks Solicitors) for ClaimantNicholas Chapman (instructed by Government Legal Department) for DefendantHearing Hearing dates: 6 June 2018
JudgmentRhodri Price Lewis QC :Introduction:
[1]The Claimant challenges the decision of the Defendant not to reconsider an earlier decision refusing the Claimant’s application for naturalisation as a British citizen on the basis that the Claimant had worked illegally in the United Kingdom during the period from the 20th November 2007 to the 27th January 2010 and had remained in the UK without leave between those dates and so was not compliant with UK immigration laws. The Defendant determined that on that basis and applying her policy set out in her Nationality Instructions the Claimant failed to meet the good character requirements of the British Nationality Act 1981. Permission to bring this claim was granted by Alexandra Marks sitting as a Deputy High Court Judge at an oral renewal hearing of the Claimant’s application to bring the claim. Ms Marks gave permission solely on the second ground of claim, namely that the Defendant’s policy is beyond the powers of, or ultra vires, the 1981 Act.

The factual background:

[2]The Claimant is a Palestinian and 41 years of age. He arrived in the UK on the 13th January 2001 on a student visa. He claimed asylum two days later. He was granted permission to work in the UK and in 2005 he was given an Asylum Registration Card (“an ARC card”) which was endorsed with permission to work. He has worked as a nurse in this country. On the 5th March 2007 his asylum claim was refused. He appealed against that decision but his appeal was dismissed on the 14th May 2007. Following unsuccessful applications for reconsideration of that decision, his appeal rights became exhausted on the 20th November 2007. On the 18th November 2008 the Defendant set directions for his removal from the UK and he was detained pending removal. He applied unsuccessfully for judicial review but he was not removed from the UK. On the 23rd February 2009 the Defendant authorised his temporary admission to the UK with a restriction that he was not allowed to work. The Claimant applied to remain as a Tier 2 worker but that application was refused in September 2009. On the 27th January 2010 the Claimant was removed to Lebanon.[3]The Claimant returned to the UK in 2012 with the Defendant’s leave as the fiancé of a British citizen. On the 10th September 20014 the Defendant granted the Claimant indefinite leave to remain in the UK as the spouse of a UK citizen and on the 15th June 2015 the Claimant applied for naturalisation.[4]The refusal letter of the 20th January 2016 states:
“One of the requirements for citizenship is that the applicant is of good character. ‘Good character’ is not defined in the British Nationality Act 1981 but the applicant is expected to have shown due regard for the laws of this country. Where an applicant has not been compliant with UK immigration laws in the ten year period prior to the date of application, the application will normally be refused. This would include where an applicant has been working in the UK without permission. … You were here without valid leave in the United Kingdom between 20/11/2007 when your appeal rights against the decision to refuse your asylum claim became exhausted until 27/01/2010 when you were removed from the United Kingdom. You were not therefore compliant with UK immigration laws during this period. You have provided documentation which clearly shows that you were working here without permission during the period 20/11/2007 to 27/01/2010 and you cannot therefore satisfy the criteria at Chapter 18, Annex D, paragraph 9.7c of the Nationality Instructions. Your application has therefore been refused. It is open to you to re-apply for citizenship at any time but an application made before 27/01/2020 is unlikely to succeed.”
[5]On the 18th April 2016 the Claimant’s advisers, Good Advice UK, wrote to the Defendant asking for reconsideration of the decision to refuse naturalisation. On the 13th December 2016 the Defendant wrote to those advisers and maintained the original decision. That letter stated:
“I would advise you that decisions in naturalisation/registration applications can only be reversed where it is clear that the original decision was NOT taken in line with the prevailing policy and nationality law at the time the decision was reached. The onus is on applicants to demonstrate that they satisfy the statutory requirements. Your client’s application was refused on 20 January 2016. The reason for refusal was that your client was in the UK without valid leave to remain between 20 November 2007 and 27 January 2010 and provided evidence that he was working during this time. It was therefore found that your client had not been compliant with the UK immigration laws. In your submissions you do not dispute that your client was working in the UK between the dates stated above. However, you state that your client only became aware that his appeal rights were exhausted in March 2009 and that he immediately requested to voluntarily depart the UK. You state that your client was prevented from leaving the UK because the Home Office had lost his passport. …The passport that was lost had expired on 27 March 2005 and as such was not a valid document for travel in March 2009. It also only became apparent that this document could not be located when your client requested its return after he had departed the UK. The loss of the passport therefore did not prevent the departure of your client as he was removed with travel documents and the lost passport was not valid at that time. You also state that your client acted in good faith throughout his stay in the UK, that he complied with his reporting restrictions and that you claim your client did have the right to work during the dates stated above. In support of this you have provided a copy of your client’s ARC card which is endorsed ‘Employment Permitted’ and was issued on 06 February 2007. I have reviewed your client’s immigration history and have noted that on 11 October 2008 your client was served with Immigration Notice IS96 which states: ‘You are not allowed to work or engage in any business unless you have been explicitly granted permission to do so. Failure to comply with any of the above restrictions without reasonable excuse is a criminal offence.’ Therefore this document expressly informed your client that he did not have permission to work and yet he continued to do so and has provided evidence that he was not compliant with this instruction. This document supersedes any previous documents issued (such as the ARC card) and was effective from the day it was served.”
[6]The Claimant’s advisers had not invited the Defendant to reverse her decision on the basis that her policy was beyond the powers of the 1981 Act. 7. The Law: Section 6 of the British Nationality Act 1981 provides:
“Acquisition 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 him a certificate of naturalisation as such a citizen. 2. If, on an application for naturalisation as a British citizen made by a person of full age and capacity who, on the date of the application, is married to a British citizen or is the civil partner of a British citizen, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection he may, if he thinks fit, grant him a certificate of naturalisation as such a citizen.”
Section 6 of the British Nationality Act 1981 provides:[7]Schedule 1 of the Act provides: 1. “Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it-(a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph; and(b) that he is of good character; and(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and (ca) that he has sufficient knowledge about life in the United Kingdom. …. “3. Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it: (a) that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270 days; (b) and that the number of days he was absent from the United Kingdom in the period of twelve moths so ending does not exceed 90; (c) and that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and(d) that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws; and(e) the requirements specified in paragraph 1(1)(b), (c) and (ca).” (a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph; and (b) that he is of good character; and (c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and (ca) that he has sufficient knowledge about life in the United Kingdom. Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it: (a) that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270 days; (b) and that the number of days he was absent from the United Kingdom in the period of twelve moths so ending does not exceed 90; (c) and that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and (d) that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws; and (e) the requirements specified in paragraph 1(1)(b), (c) and (ca).”[8]In R v The Secretary of State for the Home Department ex parte Mohamed Ali Fayed [2001] Imm AR 134 Nourse LJ observed:
“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 rather a 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 court 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.”
[9]Annex D to the Defendant’s Nationality Instructions sets out her policy on “the good character requirement.” Its purpose is explained, at paragraph 1.1, as being “to explain how the good character requirement is assessed in relevant nationality applications.” It goes on to explain at paragraph 1.2:
“there is no definition of ‘good character’ in the British Nationality Act 1981 and therefore no statutory guidance as to how this should be interpreted or applied.”
Paragraph 1.3 is entitled “Aspects of the Requirement” and explains that “the decision maker will not normally consider a person to be of good character if there is information to suggest” and there are then set out seven categories of activity that applicants might have been involved in, including being convicted of a crime and failing to pay taxes and also that “they have assisted in the evasion of immigration control.” It is pointed out that this is a non-exhaustive list but further guidance on evasion of immigration control is provided at paragraph 9.7 which reads:
“9.7 Evasion of immigration control The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having: (a) failed to report (b) failed to comply with any conditions imposed under the Immigration Acts (c) been detected working in the UK without permission.”
[10]It is this last paragraph 9.7c which was expressly relied upon in the original decision letter dated the 20th January 2016 refusing the Claimant’s application for naturalisation as a British citizen.

Submissions on behalf of the Claimant:

[11]Mr Nathan submits that as the 1981 Act by section 6(2) and Schedule 1 paragraph 3(d) requires that an applicant for naturalisation should not at any time within the period of three years ending with the date of his application be in breach of the immigration laws it is not permissible for the Defendant’s policy as set out in Annex D of the Nationality Instructions to indicate that an application for naturalisation will normally be refused if the applicant has not been compliant with immigration requirements for the tenyears before the application. He submits that the Defendant’s “good character” policy by extending the qualifying period from the three years provided by the Act to ten years renders otiose provisions of the enabling Act, specifically paragraph 3(d) of Schedule 1. He submits that if the Defendant had wished to extend the relevant period from three to ten years he should have sought an amendment to the 1981 Act from Parliament.[12]He relies on a passage in the speech of Lord Morris of Borth-y-Gest in Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] A.C. 295 at 349B-D where Lord Morris remarked:
“ …whereas the courts of law could not declare an Act of Parliament was ultra vires it might be possible for the courts to declare the making of an order (even though affirmatively approved by Parliament) was not warranted within the terms of the statutory enactments from which it purported to derive its validity. In the statutes to which I have referred Parliament gave the power to the executive to make certain orders: any order must, however, be within the mandate given by Parliament.”
Mr Nathan submits that if that dictum applies to an Order approved by Parliament then it must apply all the more so to the Defendant’s policy here and he submits that that policy is not “within the mandate given by Parliament.”[13]He submits that this is an important issue to be determined by the court and the court should not be precluded from determining the substance of it by the absence of a timely challenge to the original decision in January 2016 when the Claimant’s advisers sought a reconsideration of that decision nor by the absence of this argument from the letter seeking determination. Mr Nathan points out that permission to pursue this ground was given by Ms Marks following the oral renewal hearing when these preliminary points were taken by the Defendant. The matter is very important for the Claimant because without a passport he cannot visit family in Germany.[14]Mr Nathan made similar submissions in respect of paragraph 9.5 of Annex D but that paragraph deals with illegal entry and that is not relevant to this claim.

Submissions on behalf of the Defendant:

[15]Mr Chapman on behalf of the Defendant points out that the ultra vires argument being advanced on behalf of the Claimant was not raised in any representations prior to the decision under challenge made in December 2016 not to reconsider the original refusal of the application for naturalisation in January 2016. The argument is not itself readily discernible or obvious and the Defendant cannot have made a public law error in failing to identify it for herself when considering whether her earlier decision should stand.[16]He submits that the substantive argument that the policy is ultra vires the Act is in any event flawed. He submits that there is a distinction in the statutory regime between the lawful residence requirement, to be found in Schedule 1 paragraph 3 (a) to (d), and the good character requirement, to be found in paragraph 3 (e) referring back to paragraph 1(1)(b). He submits that these requirements are not to be conflated and an applicant has to comply with both requirements before the Defendant has the power in her discretion to grant a certificate of naturalisation.[17]He draws attention to paragraph 1 of Schedule 1 to the Act which deals with applications under section 6(1) where the applicant is not a spouse. There the first requirement (a) is that that the applicant meets the requirements set out in sub-paragraph (2) which all relate to the requirements as to lawful residence. The last in paragraph 3 (2) (d) is that the applicant was not at any time during the period of five years ending with the date of the application in breach of the immigration requirements. These mirror the requirements for spouses in paragraph 3 (a) to (d) save that the periods are shorter for spouses. The second requirement for non-spouses in paragraph 1(1)(b) is “that he is of good character”. The next requirements are as to knowledge of the languages of the United Kingdom, knowledge of life in the United Kingdom and intention to live in the United Kingdom or undertake relevant service. The requirements as to good character, knowledge of relevant languages and knowledge of life in the United Kingdom are also requirements for spouse applicants: see paragraph 3 (e). Comparing the requirements for spouses and non-spouses shows that there are two types of requirement: the one relating to lawful residence for the requisite period, the other relating to good character. The requirement in Schedule 1 paragraph 3 (d) that the applicant should not at any time within the three years before his application be in breach of the immigration laws is part of the lawful residence requirement. The good character requirement is separate, is dealt with separately in paragraph 3(e) referring back to paragraph 1(1)(b) and it is that requirement which is the subject of the policy in Annex D. It is open to the Defendant rationally to adopt a policy which sets a period of ten years compliance with immigration requirements as part of determining whether an applicant is of good character. She has a broad discretion in determining whether an applicant is of good character and it is open to her to have a policy that an applicant who has not complied with immigration requirements in the ten years before his application should not be considered of good character: see Mohammed Ali Fayed supra and R (oao DA( Iran)) v Secretary of State for the Home Department [2014] EWCA civ 654 at [4].

Discussion:

[18]I consider that the court should determine the substantive argument here as to whether the policy in Annex D at paragraph 9.7 is within the powers of the 1981 Act. It was appropriate for the Claimant’s advisers to pursue the course available to them of seeking a reconsideration of the decision to refuse a certificate of naturalisation on the basis of the representations they then made rather than immediately seeking a judicial review. The course of seeking a reconsideration was expressly identified as an opportunity open to them in the original refusal letter. Further, permission has been granted to pursue the claim on this ground of ultra vires after an oral renewal hearing in October 2017 and the learned Deputy High Court Judge did not seek to limit argument on the substantive ground in any way by reason of the history of the claim.[19]However, on the substantive argument, I agree with the submissions on behalf of the Defendant. The statutory regime clearly contemplates two separate requirements that the applicant should have lawfully resided in the United Kingdom for the requisite periods and that he should be of good character. The requirement in Schedule 1 paragraph 3(d) that a spouse applicant should not have been in breach of the immigration laws during the three years before his application is part of the lawful residence requirement to be found in paragraphs 3(a) to (d). The requirement that he should be of good character is a separate requirement to be found in paragraph 3(e) referring back to paragraph 1(1)(b). So an applicant has to meet the lawful residence requirements including that he has not been in breach of the immigration laws for the three years that are required in order to meet the lawful residence requirement that Parliament has set. But Parliament has left it to the Defendant to decide whether he considers an applicant to be of good character, as a separate and different requirement. The Defendant has a broad discretion in that matter as Ali Fayed supra makes clear. It is within that broad discretion to decide that as a matter of policy he normally will consider an applicant who has not complied with immigration requirements in the ten years before his application, including by working in the United Kingdom without permission, to not be of good character. That does not render the part of the lawful residence requirement in Schedule 1 paragraph 3(d) otiose. That is a separate and different requirement from the good character requirement.

Conclusion:

[20]I do not doubt for a moment the importance of this matter to the Claimant. He has indefinite leave to remain in the United Kingdom as the spouse of a British citizen but I understand the severe limitations on travelling abroad that the refusal of a naturalisation certificate has meant and will continue to mean but in my judgment the Defendant was lawfully entitled to adopt the policy in Annex D at paragraph 9.7 and to apply it to the Claimant’s circumstances. The Defendant has a wide discretion to decide whether an applicant is of good character before granting a certificate of naturalisation and it was lawfully open to the Defendant to decide in the circumstances here that the Claimant did not meet that requirement.[21]The claim is therefore dismissed and I invite Counsel to agree an order if possible.