R Lakaj v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 25 November 2014 |
| Neutral Citation | [2014] EWHC 4273 (Admin) |
| Docket Number | CO/3755/2013 |
| Date | 25 November 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 4273 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lewis
CO/3755/2013
Mr C Jacobs (instructed by Marsh and Partners) appeared on behalf of the Claimant
Mr A Wagner (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is a claim for judicial review of a decision of the defendant dated 9 January 2013, by which the defendant refused the claimant's application for naturalisation as a British citizen. The basis for the decision was that the Secretary of State was not satisfied that the claimant was of good character. The defendant relied on guidance that had been published on 13 December 2012.
The key reason for the defendant's decision is expressed in the following terms:
"Your Client came to the UK and claimed asylum as a refugee from Kosovo, when in fact he is from Albania. The Home Secretary considers that this constitutes a deliberate attempt to mislead her. As such, she cannot be satisfied that your client meets the good character requirement for naturalisation and his application is refused."
The claimant challenges that decision on two grounds: First, he contends that the guidance that should be applied to his case was the not the guidance that had been issued in December 2012. He says the guidance that was applicable to his case is the earlier guidance which was in force at the time when his application for naturalisation was made. He claims that under the earlier guidance, he would have been found to be of good character.
Secondly, the claimant says that, in any event, he had a legitimate expectation derived from an announcement on a Government website that the earlier guidance would apply to cases such as his, where the application for naturalisation had been made prior to the issuing of the December 2012 guidance.
Facts
The claimant came to the UK on 20 April 1999, when he was aged 26 years old. He claimed asylum on 23 April 1999. He told the Home Office officials that he was a Kosovan, and that he feared attacks by the Serbian police in Kosovo.
He said that he had been badly beaten and tortured in Kosovo. He said that the Serbs had forced him to leave Kosovo. He also said that he was a Catholic and that he feared attacks by Islamic extremists in Kosovo.
The claimant was refused asylum, but he appealed. At the appeal hearing the claimant did not give evidence himself. He did instruct counsel on his behalf, and that counsel maintained the claimant's story that he was from Kosovo. The appeal failed, as the Tribunal considered that he did not have a well founded fear of persecution by reason of his ethnic origins or his religion.
The claimant sought indefinite leave to remain in the United Kingdom. Again, neither he, nor those acting on his behalf, told the Secretary of State that his earlier story was false. He was ultimately granted indefinite leave to remain on 22 October 2010.
That decision was based on his personal circumstances. Those circumstances, of course, were believed to include the fact that the claimant was from Kosovo. The account that the claimant gave and maintained for over 12 years, was not true.
He is not a Kosovan, and was not from Serbia. He had never been beaten or tortured by police in Serbia. He had not been forced out of Serbia by the police. He did not fear extremist attacks in Kosovo because he did not live in Kosovo. He is an Albanian national from Albania.
The claimant accepts now, that, as is put in his skeleton argument, he maintained a false account on arrival in 1999 when applying for asylum as a Kosovan national. Put bluntly, he lied and sought to deceive the Home Office officials and to obtain asylum by deception. He maintained those lies before the First-tier Tribunal. He did not inform the Secretary of State of the untruths in his story when he continued his application for indefinite leave. He maintained the false stories for over 12 years.
In any event, the claimant applied for naturalisation as a British national on 16 May 2011. For the first time, he informed the authorities that he was a national of Albania, not, as he had pretended, a national of Kosovo.
It was that application which the defendant rejected for the reasons I have previously set out.
Applications for naturalisation are dealt with in accordance with the British Nationality Act 1981. Section 6(1) provides as follows:
" 6. Aquisition 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 to him a certificate of naturalisation of such a citizen."
Schedule 1 sets out a series of requirements. A person applying for naturalisation must show that he is of good character. The operation of that statutory provision is dealt with by Lang J in R (I) DA (Iran) v Secretary of State for the Home Department 2013 EWHC 279 (Admin).
At paragraph 39, the judge says this:
"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."
The defendant has issued guidance as to how the question of good character will be assessed. At May 2011, when the claimant applied for naturalisation, the relevant part of the of the guidance was section 9 headed: "Deception." It provided as follows:
"9. Deception.
"Case workers should count heavily against an applicant any attempt to lie or to conceal the truth about an aspect of the application for naturalisation, whether on the application form or in the course of enquiries. Concealment of information or lack of frankness in any matter must raise doubts about an applicant's truthfulness in other matters."
At section 9.5 there is a section dealing specifically with evidence of fraud in the immigration and nationality processes. Section 9.5(1), so far as material, dealt with situations where there was evidence to suggest that the applicant had employed fraud in a previous immigration application process where the fraud was directly material to the accusation of immigration leave, or to the application for citizenship.
In those circumstances, the earlier guidance said that the applicant should be refused unless the circumstances of 9.52 apply. Section 9.52 provided that:
"Where deception has been employed on a previous immigration application and was identified and dismissed by UKBA or was factually immaterial to the grant of leave caseworkers should not use that deception as a reason by itself to refuse the application under section 9.5.1."
There are then various examples of the circumstances in which deception would not be regarded as material and where the application would not necessarily be refused. Mr Jacobs, for the claimant, relies in particular on example B of that guidance.
In December 2012, and prior to the decision in this case, the defendant issued new guidance. Section 1 is the introduction. It refers to the fact that there is no definition of good character in the British Nationality Act, and no statutory guidance. It points out that the Secretary of State must be satisfied that the applicant is of good character. It says that to facilitate the applicant must answer all questions asked of them during the application process honestly and in full. Then there is a series of sections dealing with particular matters that are potentially relevant to an assessment of a person's good character.
Section 3 deals with criminal activity, and that section is divided into two parts: 3.1 deals with applications made on or after 13 December 2012. That section reflects certain changes made, I am told by statute to the Rehabilitation of Offenders' Act 1974 and the fact that certain convictions are no longer to be regarded as spent when making an assessment of good character.
Section 3.2 deals with applications made on or before 12 December 2013, and provides for a different test of assessment of good character in relation to convictions.
There are then sections dealing with a number of different potentially relevant matters including, for example, financial soundness, what is described as "notoriety" and then, finally, there is section 10 headed: "Deception."
The opening paragraph of section 10 says this:
"Caseworkers should count heavily against an applicant any attempt to lie or conceal the truth about an aspect of a previous UKBA immigration application as well as the current application of naturalisation — whether on the application form or in the course of enquiries. Concealment of information or a lack of frankness in any matter must raise doubts about an applicant's truthfulness in other matters."
At section 10.4, there is a section headed: "Evidence of deception in the immigration and nationality process". That provides as follows:
"10.4.1 Caseworkers should refuse the application where there is evidence to suggest that an applicant has employed deception either:
a. during citizen application process or.
b. in previous immigration applications processes.
"10.4.2.
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