Poloko Hiri v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 18 February 2014 |
| Neutral Citation | [2014] EWHC 254 (Admin) |
| Docket Number | Case No: CO/10413/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 February 2014 |
[2014] EWHC 254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/10413/2012
Mr Raza Halim (instructed by Duncan Lewis) for the Claimant
Mr Colin Thomann (instructed by The Treasury Solicitor) for the Defendant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant applies for judicial review of the Defendant's decision to refuse his application for naturalisation as a British citizen, which was contained in a letter dated 11 th May 2012 and subsequently confirmed on review, in letters dated 29 th June and 26 th September 2012.
The reason for refusal was that the Defendant was not satisfied that he met the 'good character' requirement for naturalisation because of his conviction for a speeding offence which would not be 'spent' under the Rehabilitation of Offenders Act 1974 until 17 th November 2016.
Charles George QC, Deputy High Court Judge, granted permission on 21 st December 2012.
Facts
The Claimant is a national of Botswana, aged 33 (DOB 28 th April 1980). He was born and brought up in Botswana, and enrolled in higher education, without completing his degree. Since boyhood he had an interest in joining the army, but his family persuaded him to pursue higher education instead.
He arrived in the United Kingdom (UK) on 1 st November 2006, with a working holiday visa valid from 31 st October 2006 until 30 th October 2008.
During this period, some senior figures from the Army of Botswana attended the Royal Military Academy at Sandhurst to take part in training courses. The Claimant's uncle, an army Colonel, was among them. The Claimant met his uncle and his colleagues, and this inspired him to apply to join the British Army.
As a citizen of the Commonwealth, the Claimant was eligible to serve in the British Army. He applied in December 2007, and on 25 th August 2008 he enlisted for a 12 year term as a Private in the Corps of Royal Engineers. It was a term of his engagement that, after completion of 4 years service, he could apply (on 12 months notice) to be transferred to the Reserve, either for 6 years, or for the balance of his term of engagement, if less.
The Claimant trained and served in the Army as a military draughtsman and combat engineer. In August 2011, he gave 12 months notice of his intention to leave the Army, in order to take a BSc degree in Architectural Technology.
The Claimant was convicted on 17 th November 2011 of the offence of exceeding a temporary 50 mph speed limit on the M1 motorway on 9 th April 2011. The circumstances were that he finished duty at Ripon Barracks at 22.00 on the evening of 8 th April 2011, and drove south down the M1 to commence a period of Easter leave. At 01.21, near Swinford, he was captured on a traffic camera travelling at 81 mph in an area where there was a temporary speed limit of 50 mph because of construction works. The Claimant's account was that he was unaware of the temporary speed limit and he was not aware that he had exceeded the 70 mph speed limit.
The Claimant was co-operative in completing the notice of intending prosecution and admitting his guilt. The police indicated that the case would not be dealt with by way of fixed penalty, and he was summonsed to appear at court. He pleaded guilty by post and was given a fine of £100 and 5 points on his driving licence. He had obtained a full UK driving licence on 21 st April 2009 and had no other endorsements on it. The Claimant notified his superior officer of the conviction.
In December 2011, Major N. Worsley of the Directorate of Manning (Army) HQ Land Forces advised commanding officers to brief citizens of Botswana serving in the British Army that they would be at risk of prosecution and confiscation of their passports if they returned to Botswana. The Government of Botswana was now "rigorously enforcing" the Foreign Enlistment Act 1980, which made it a criminal offence to act in the military service of another country, without the permission of the President. A Motswana serving in the British Army had recently been threatened with prosecution upon returning to Botswana to visit relatives. Although the British Army would not disclose details of Batswana personnel, their identities were known to the Government of Botswana, possibly through monitoring of social networks.
On learning of these developments, the Claimant feared that he was at risk of prosecution and lengthy imprisonment if he returned to Botswana. The Botswana Penal Code, in paragraph 39, provides that a person who is in possession of the uniform of the armed forces of any foreign country shall be deemed to threaten the security of Botswana. Such an offence is punishable with 15 to 25 years imprisonment. As a member of the British Army Reserve, the Claimant retains an Army uniform. The campaign mounted on his behalf by the charity Veterans Aid has been widely reported in the Botswana press. The Minister of Foreign Affairs, Phandu Skelemani, has been reported as saying that the Claimant will be prosecuted if he returns.
In February 2012, the Claimant applied for naturalisation. The application was refused by letter dated 11 th May 2012. The reason for refusal was that the Defendant was not satisfied that he met the 'good character' requirement for naturalisation because of his speeding conviction which would not be 'spent' under the Rehabilitation of Offenders Act 1974 until 17 th November 2016. He was advised that a further application prior to 17 th November 2016 was unlikely to be successful. He applied for the decision to be re-considered and submitted a very favourable reference from his commanding officer, Major Plimmer, in support. However, the refusal was confirmed in a further letter dated 29 th June 2012. In response to a pre-action letter, the Defendant reviewed the earlier decisions and upheld them, in a letter dated 26 th September 2012.
On 23 rd February 2012, the Claimant's daughter Peo Balule was born in London to his then partner Lilian Balule. The Claimant was not able to attend the registry office to register the birth because of his Army commitments, but he completed a statutory declaration of acknowledgment of parentage. The Claimant had known Lilian since 2009, and he was in a relationship with her from May 2011. They are now separated, but the Claimant continues to see his daughter regularly. Lilian is also from Botswana, but she has indefinite leave to remain in the UK.
In 2012, the Claimant applied for asylum, on the basis that prosecution and a lengthy prison sentence in Botswana for his service in the British Army would be a disproportionate and discriminatory punishment, in breach of his fundamental human rights. He also relied upon Art. 8. His asylum claim has not yet been determined.
On 31 st August 2012, the Claimant's full time engagement with the Army terminated. He remains an Army Reserve for 6 years thereafter. His duties as a Reserve are to attend training and to respond to a call out order made under the Reserve Forces Act 1996, in the event of major emergency or war.
Whilst a full time serving officer, he was not subject to any condition or limitation on the period of permitted stay in the UK. Ordinarily his leave to remain in the UK would have expired 28 days after his discharge from the Army. The Defendant offered him a grant of limited leave to remain in the UK, on condition that he withdrew the claim for judicial review. He refused the offer. Nonetheless, the Defendant went ahead and granted him limited leave to remain for 30 months, pursuant to paragraph 276 QA Immigration Rules, from 5 th February 2013 to 4 th August 2015.
Legislation
By section 6(1) British Nationality Act 1981, British citizenship may be acquired by naturalisation. Subsection (1) provides:
"If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
Under paragraph 1(1) of Schedule 1 to the Act, an applicant must fulfil the mandatory requirement that "he is of good character", together with other requirements. If he does so, the Secretary of State then has discretion to grant naturalisation, "if he thinks fit". There is no statutory definition of "good character".
Nationality Instructions
The Defendant has issued instructions and guidance to her officers on how to assess and determine naturalisation applications ("the Instructions"). Chapter 18 is headed "Naturalisation at Discretion: Section 6 British Nationality Act 1981". Paragraph 18.1.3 states:
"Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them."
The 'good character' requirement is considered in Annex D to...
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