R Mohammad Al-Enein v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Singh,Lord Justice Flaux |
| Judgment Date | 25 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2024 |
| Date | 25 November 2019 |
| Docket Number | Case No: C4/2018/1671 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2024
Lord Justice Flaux
Lord Justice Singh
and
Lord Justice Haddon-Cave
Case No: C4/2018/1671
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Rhodri Price Lewis QC sitting as a Deputy Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Nathan (instructed by Oak Solicitors) for the Appellant
Nicholas Chapman (instructed by the Government Legal Department) for the Respondent
Hearing date: 29 October 2019
Approved Judgment
Introduction
This is an appeal against the decision of Mr Rhodri Price Lewis QC, sitting as a Deputy Judge of the High Court, given on 26 June 2018, in which he dismissed the Appellant's claim for judicial review of the Respondent's decision not to reconsider her refusal of his application for naturalisation as a British citizen.
Permission to appeal was granted by Asplin LJ on 25 February 2019.
Factual Background
The Appellant was born on 11 November 1977 and is of Palestinian origin. At the hearing before this Court we were informed by counsel on his behalf that the Appellant is stateless but has a Lebanese refugee travel document.
The Appellant arrived in the United Kingdom (“UK”) on 13 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 which was endorsed with permission to work. On 5 March 2007 his asylum claim was refused. He appealed against that decision and his appeal was dismissed on 14 May 2007. Following unsuccessful applications for reconsideration of that decision, his appeal rights were exhausted on 20 November 2007. On 18 November 2008 the Respondent set directions for his removal from the UK and he was detained pending removal. He applied unsuccessfully for judicial review but he was not in fact removed from the UK.
On 23 February 2009 the Respondent authorised the Appellant's temporary admission to the UK with a restriction that he was not allowed to work. He applied to remain as a Tier 2 worker but that application was refused in September 2009. Following the rejection of his submissions in support of a fresh asylum claim on 18 December 2009, the Appellant accepts that he continued to work despite knowing that he was prohibited from doing so.
On 27 January 2010 the Appellant was removed to Lebanon.
The Appellant returned to the UK in 2012, with the Respondent's leave, as the fiancé of a British citizen. He then got married. On 10 September 2014 the Respondent granted the Appellant indefinite leave to remain in the UK as the spouse of a British citizen, and on 15 June 2015 the Appellant applied for naturalisation. This was refused by the Respondent on 20 January 2016 on the basis that the Appellant did not meet the requirement of “good character”, as he had not complied with UK immigration laws in the 10 year period prior to the date of application. This was because he had remained in the UK without valid leave between 20 November 2007 and 27 January 2010, and had worked without permission during that time.
On 18 April 2016 the Appellant's advisers at the time, Good Advice UK, wrote to the Respondent requesting reconsideration of the decision to refuse naturalisation. On 13 December 2016 the Respondent wrote to them maintaining the original decision.
Material Legislation
Section 6 of the British Nationality Act 1981 (“the 1981 Act”) provides:
“(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 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 to him a certificate of naturalisation as such a citizen.”
It is section 6(2) which is of direct relevance in the present case, as the Appellant's application for naturalisation was made on the basis of his marriage to a British citizen.
Schedule 1 to the 1981 Act, so far as material, 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; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and
(c) 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).”
The reference back to paragraph 1(1)(b) means that an applicant must be of “good character.”
By paragraph 4 the Secretary of State is given discretion to waive certain of these requirements. However, she does not have that discretion in relation to the requirement that an applicant must be of good character.
Section 50A of the 1981 Act, as amended by the Borders, Citizenship and Immigration Act 2009, section 48, provides as follows:
“(1) This section applies for the construction of a reference to being in the United Kingdom ‘in breach of the immigration laws’ in – …
(c) Schedule 1.
(2) It applies only for the purpose of determining on or after the relevant day – …
(c) whether, on an application under section 6( 1) or (2) made on or after the relevant day, the applicant fulfils the requirements of Schedule 1 for naturalisation as a British citizen under section 6( 1) or (2).
…
(4) A person is in the United Kingdom in breach of the immigration laws if (and only if) the person –
(a) is in the United Kingdom;
(b) does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971;
(c) does not have leave to enter or remain in the United Kingdom (whether or not the person previously had leave);
(d) does not have a qualifying CTA (common travel area) entitlement;
(e) is not entitled to reside in the United Kingdom by virtue of any provision made under section 2(2) of the European Communities Act 1972 …”
There was a similar provision which was first introduced in section 11 of the Nationality, Immigration and Asylum Act 2002.
The policy under challenge
The Appellant's challenge is to the following paragraph at Annex D to the Nationality Instructions issued by the Secretary of State to her officials:
“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.”
The Decision of the High Court
The claim for judicial review was dismissed by Mr Rhodri Price Lewis QC, sitting as a Deputy Judge of the High Court. He held that the Secretary of State has a wide discretion to decide whether an applicant is of good character before granting a certificate of naturalisation. Consequently, she was lawfully entitled to adopt the policy in paragraph 9.7 of Annex D to the Nationality Instructions, and to apply it to the Appellant's circumstances.
The Deputy Judge considered that the statutory regime established by the 1981 Act contemplates two separate requirements: (i) that the applicant should have lawfully resided in the UK for the requisite periods, and (ii) that he should be of good character. The requirement in Schedule 1, paragraph 3(d), that an 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 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).
Relying on R v Secretary of State for the Home Department, ex parte Fayed [2001] Imm AR 134, the Deputy Judge held that the Respondent has a broad discretion in that matter. It was within that broad discretion to decide that, as a matter of policy, she will normally consider an applicant who has not complied with immigration requirements in the 10 years before his...
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