In the recent decision of R (Sandy) v Secretary of State for the Home Department EWHC 640 (Admin), High Court Judge Sir Nicholas Mostyn, who is due to retire this summer, provided some excellent insight into the issues of irrationality and proportionality in cases where Naturalisation has been refused. Justice Mostyn ruled that challenges to the Home Secretary’s decision to refuse citizenship naturalisation applications can only be brought on grounds of irrationality.
Background To The Case
The Claimant was born in Sierra Leone and aligned himself with coup leader Johnny Paul Koroma. He participated in combat operations, describing himself in his initial asylum application as “main commando qualified military personnel” and as a “freedom fighter” in his statement of facts and grounds for his Judicial Review claims. The Claimant was also one of the country’s top military trainers.
The Koroma regime committed numerous atrocities amounting to war crimes. The Claimant was at the heart of the regime at a time when these crimes were being committed. When the Koroma government fell, the Claimant was imprisoned and tortured by the new regime and miraculously survived an assassination attempt. He fled Sierra Leone in 2001 and came to Britain on a fake French passport via Liberia, Guinea.
The Claimant was granted asylum and Indefinite Leave to Remain. In the 23 years he had lived in the UK he married, had children, and worked as a nurse for an NHS hospital. The Court stated that his conduct whilst in the UK was “irreproachable.”
An application for Naturalisation was made three times by the Claimant, and on each occasion was refused on ‘good character’ grounds.
The Judicial Review claim was based on the following:
“The decision maker erred in law in that in the exercise of her discretion she did not consider the following matters referred to in the published policy:
- the defences available to the Claimant, including duress and superior orders, and the mitigation available to him referable to the facts giving rise to those defences;
- the degree to which the Claimant had distanced himself from his past memberships or associations in Sierra Leone; and
- the degree to which the Claimant was personally and directly involved in the relevant activities in Sierra Leone.”
The ‘Good Character’ Requirement in Naturalisation/British Citizenship Cases
Section 6(1) of the British Nationality Act 1981 provides that if the Secretary of State believes that an applicant for British Citizenship fulfils the requirements set out under Schedule 1 of the Act, they may if they think fit, grant Naturalisation. One of the requirements is that the applicant must be “of good character.”
There is no statutory definition of good character; however, the following will be considered:
- Whether the applicant has a criminal conviction or is suspected of being involved in criminal activity.
- Involvement in international crime or terrorism.
- Financial responsibility.
- Is the applicant notorious for certain behaviour or views.
- Has the applicant deceived the Home Office or otherwise acted dishonestly, for example, falsely claiming for benefits.
- Has the applicant been involved in a type of immigration abuse relevant to the assessment of the good character requirement that occurred within ten years before the date of the decision on the application. Examples may include overstaying, taking part in a sham marriage, or failing to pay litigation costs to the Home Office.
- Any breach of UK immigration rules.
Justice Mostyn’s Decision
On examining the issue of proportionality, Justice Mostyn stated:
“There is no doubt that in the world of judicial review, proportionality has advanced like a cuckoo, occupying the common law nest of traditional assessment, laying its continental eggs in it, and ejecting its home-incubated Wednesbury hatchlings”.
The term Wednesbury refers to the landmark case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, which provided that for a public body’s decision to be unreasonable or irrational, it must be:
“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.
Proving Wednesbury unreasonableness is a high hurdle to jump and narrower in scope than proportionality. Given that the issue of good character is more subjective than objective and the granting of Naturalisation is a long-standing statutory power, Justice Mostyn concluded that any ground for Judicial Review in such a case had to be under the category of unreasonableness rather than proportionality.
Once the ground of unreasonableness was established, Justice Mostyn swiftly concluded that the Secretary of State had not acted irrationally. Returning to ground one of the Judicial Review, he stated that it was totally without merit.
“The reason that the decision-maker did not take into account the defences (or mitigatory effect) of duress and superior orders was because the claimant never raised them. I have explained above that apart from a passing comment in his asylum statement that he was taken to Liberia to train rebels under a do-or-die option, neither in his asylum statement nor in his asylum interview was it his case that he was coerced either directly or via superior orders”.
With regards to the second ground, this too was deemed to be without merit as the evidence showed the Secretary of State did consider the Claimant’s complete severance from “his new life in England and old life in Sierra Leone.
Finally, concerning the third ground, the Claimant was clearly indirectly involved in war crimes and was associated with organisations that perpetrated the atrocities. Therefore, this ground also lacked merit.
Justice Mostyn concluded his judgment by stating the Secretary of State’s reasoning for refusing Naturalisation was a “completely conventional, indeed impeccable, way of assessing the relevant evidence.” This case demonstrates not only that unreasonableness, not proportionality, provided grounds for review in Naturalisation cases, but also that the Claimant must have extremely solid evidence to successfully argue that the Secretary of State’s decision was irrational.
Garth Coates is a leading niche immigration firm based in the heart of London, specialising in all forms of personal and business immigration, including visas, global mobility, sponsorship and compliance, settlement, and citizenship. If you need any assistance with making an application for Naturalisation, bringing a Judicial Review claim, or any other immigration matter, please speak to one of our immigration Solicitors on tel: +44 (0)20 7799 1600 or by completing our online contact form.