R Calvopina v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | McKenna,HIS HONOUR JUDGE |
| Judgment Date | 30 January 2017 |
| Neutral Citation | [2017] EWHC 3615 (Admin) |
| Docket Number | CO/3790/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 January 2017 |
[2017] EWHC 3615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
HIS HONOUR JUDGE McKenna
CO/3790/2017
APPEARANCES
Mr A Habteslasie (instructed by Londonium Solicitors) appeared on behalf of the Claimant.
Mr E Brown (instructed by Government Legal Department) appeared on behalf of the Defendant.
INTRODUCTION
In this claim the claimant challenges the Secretary of State's decision dated 5 th November 2016 refusing to reconsider her refusal decision dated 23 rd February 2016 and the Secretary of State's decision dated 13 th December 2016 in which she maintained the original refusal decision to refuse the claimant's application for naturalisation as a British subject.
Permission was granted by Upper Tribunal Judge Plimer on 1 st June 2017, since when this claim has been transferred into the Administrative Court for proper determination, the Upper Tribunal not having the required jurisdiction.
The basis of the challenge to the decision is that the Secretary of State failed to apply her own policy guidance on the issue appropriately and/or fairly. In particular, what is said is that the Secretary of State unreasonably strictly applied her policy guidelines dealing with the claimant's mitigating circumstances or, put another way, she unfairly fettered her discretion by excluding factors which it is said she was lawfully required to consider or failed to give adequate reason.
The second ground is an unreasonable failure to accept that the failure by the claimant to disclose a caution was an innocent mistake. The third ground goes to the alleged disproportionality of the decision.
FACTUAL BACKGROUND
The factual background can be put very shortly. The claimant is a national of Ecuador whose date of birth is 11 th July 1965. He entered the United Kingdom and claimed asylum in September 1996 and applied for, and subsequently was granted, indefinite leave to remain in March 2004. He resides in the United Kingdom with his wife and three children.
On 4 th July 2015, whilst at Brixton Recreation Centre with his son, he hit his son. The police were called and the claimant admitted the assault. He was administered with a caution for assault occasioning actual bodily harm.
On 7 th November 2015 the claimant applied for naturalisation as a British citizen. In fact, he did not disclose the caution. On 23 rd February 2016 the claimant's application was refused on good character grounds.
On 1 st April 2016 the claimant through his solicitors, Messrs Londonium Solicitors, requested reconsideration and on 5 th November 2016 the refusal was maintained. The letter was addressed to Londinium Solicitors. The text of that decision letter is as follows:
“I refer to your letter of 01 April in which you request that we reconsider the decision to refuse your client's application for naturalisation as a British citizen. I am sorry not to have replied sooner.
Your client received a caution on 07 July 2015. He applied for naturalisation on 07 November 2015. We would not normally naturalise a person who has received a non-custodial sentence or out of court disposal such as a caution or a warning in the three years immediately prior to an application for naturalisation.
We would consider doing so exceptionally where a person has one single non-custodial sentence or out of court disposal and it occurred within the first two years of the three years immediately prior to the application, i.e. the person has no offences within the previous twelve months, and there are strong countervailing factors which suggest the person is of good character in all other regards and the decision to refuse would be disproportionate. Your client does not come within these criteria. The Secretary of State could find no grounds to naturalise him exceptionally outside these criteria and his application was refused.
A decision to refuse an application for naturalisation can only be reversed where it is clear that it was not taken in line with prevailing policy and nationality law. I have reviewed the consideration given to your client's application and the decision made on it and I am satisfied that the correct procedures were followed and the correct decision was taken to refuse it. There are no grounds to reopen the application.
Where a person fails to declare to us a conviction or out of court disposal which would lead to the refusal of their application, as in your client's case, our policy is to advise that the failure to declare will be taken into account on any fresh application made within ten years from the date of our refusal decision and in the absence of any strong countervailing factors is likely to lead to such an application being refused.”
There is then a final paragraph suggesting what should be done if the claimant wishes to make a fresh application, which I do not need to recite.
LEGAL BACKGROUND
There are no significant issues between the parties as to the relevant law. It can be summarised in this way and which I take from the Secretary of State's helpful skeleton argument.
Among other requirements, a person wishing to be naturalised as a British Citizen must satisfy the SSHD that he/she is of good character. The term ‘good character’ is not defined in the British Nationality Act 1981, but the SSHD has published guidance on the good character requirement (Annex D to Chapter 18 of the Nationality Instructions…)
The SSHD is required to make an evaluation of the applicant's character on the basis of the material before her, having proper regard to her guidance. The onus is on an applicant to satisfy the SSHD that he or she is of good character.
A decision that an applicant is not of good character may only be challenged on rationality grounds.
Applicants are required to disclose, on application form AN, all criminal convictions, including simple cautions.
An application for naturalisation made by a person who has received a simple caution within the 3 years immediately preceding the date of their application will normally be refused (see section 2 of the SSHD guidance).
Exceptionally, such an application may be granted where the person has one single non-custodial sentence (like a simple caution) which occurred within the first 2 years of the 3 (i.e. the person has had no offences within the last 12 months), there are strong countervailing factors which suggest the person is of good character in all other regards and the decision to refuse would be disproportionate (see section 10 of the SSHD's guidance).”
The burden of proof rests on the applicant.
Failing to disclose a simple caution which, if disclosed, would result in refusal of the...
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