R SA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karon Monaghan |
| Judgment Date | 08 June 2015 |
| Judgment citation (vLex) | [2015] EWHC J0608-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 June 2015 |
| Docket Number | Case No: CO/10921/2013 |
[2015] EWHC J0608-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2015] EWHC 1611 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan QC
(Sitting as a Deputy High Court Judge)
Case No: CO/10921/2013
Mr David Chirico (instructed by Bindmans LLP) for the Claimant
Mr Mathew Gullick (instructed by Treasury Solicitor) for the Defendant
Hearing date: 2 February 2015
Karon Monaghan QC (SITTING AS A DEPUTY HIGH COURT JUDGE):
By this claim, the claimant challenges the defendant's refusal of his application for registration as a British citizen, in the first instance by a decision dated 3 rd May 2013 and thereafter by a decision dated 6 th June 2013.
Factual Background
The claimant is a South African national. He was born in Cape Town on 27 th November 1994. As a baby, the claimant lived in South Africa with his mother and his father. Whilst still very young, the claimant moved in with his grandparents when his parents' relationship broke down. His mother began a new relationship and the claimant's younger brother, AA, was born (on 4 th May 2001), also in South Africa. At some point the claimant's mother moved to the UK and arranged for AA to join her, leaving the claimant with his grandparents.
In December 2003, the claimant arrived in the UK (aged 9) to join his mother and his brother, AA. During the course of 2003, AA was granted indefinite leave to remain.
It appears that at some stage the claimant's mother attempted to secure indefinite leave to remain for the claimant. However, for some reason (a reference is made in the documents to her not having the funds to meet the costs of the application), the application was not proceeded with or in any event was unsuccessful. The precise circumstances are unclear.
Unfortunately, at some point the claimant's mother became unable to look after the claimant and AA through difficulties of her own. In consequence, in November 2006 (when the claimant was 11) Slough Borough Council assumed responsibility for the care of the claimant and his brother, AA, (pursuant to section 20, Children Act 1989) at which point both moved in with a foster carer, KW.
On 9 th October 2009 the claimant was made the subject of a care order under section 31, Children Act 1989 and from that date on was a "looked after child". At the date of the making of the order (at the latest) responsibility for the care of the claimant and formal parental responsibility for him, lay with Slough BC. When the claimant reached 18, as is evident from the report provided by Slough BC in support of his application for registration (dated 18 th October 2012), he was to be no longer a "looked after" child but instead entitled to "leaving care" services until his 21 st birthday or 25 th birthday if in full time education.
The claimant's foster carer, KW, had obtained a special guardianship order in respect of AA, giving her parental responsibility for him, but not for the claimant. This was apparently because of AA's much younger age when coming under the care of KW and the claimant's sense of loyalty to his mother. In any event, responsibility for securing the claimant's care and the safeguarding and promotion of his welfare, lay with Slough BC which it met in part by placing the claimant under the care of KW.
In August 2009, Slough BC instructed solicitors to apply for indefinite leave to remain for the claimant. Such an application was made under cover of a letter dated 26 th August 2009, on the basis, it was said, that the claimant's long term future rested in the UK and that he was to remain in the care of Slough BC. That application was supported by a report from Slough BC dated 5 th August 2009 confirming that, at that stage, the children were subject to interim care orders and cared for by Slough BC, pending determination of an application (subsequently granted) for a full care order. The report stated that the claimant's mother and brother had indefinite leave to remain in the UK and that it was in the claimant's best interests for him to be granted the same status.
On 29 th September 2010 the claimant was granted limited leave to remain until 27 th November 2012, his 18 th birthday. It is not clear why he was not granted indefinite leave. Nor is it clear why an application for registration as a British citizen was not made on behalf of the claimant at or before that time, though it appears likely by that stage that his long term future could properly have been said to be in the UK. The decision to grant temporary leave to remain is not, however, challenged in these proceedings and nor is it said that it was in any way flawed.
On New Year's Day 2012, the claimant was arrested for two separate offences – one relating to the possession of cannabis and one in respect of an alleged affray. The affray was not proceeded with (a district judge having found that the claimant had no case to answer in respect of it) but the claimant pleaded guilty to a charge of possessing cannabis for which he was given a six-month conditional discharge in April 2012 by the West London Juvenile Court. As I will come back to, at that point neither the claimant nor KW understood this to amount to a conviction.
On 23 rd November 2012, the claimant's solicitors — who had previously acted on instructions from Slough BC to make an application on behalf of the claimant for indefinite leave to remain — applied on his behalf for registration as a British citizen pursuant to the discretion afforded the defendant under section 3(1), British Nationality Act 1981. This application was made four days before the claimant's 18 th birthday. The operative date for the purposes of determining the application was the date of receipt, namely 26 th November 2012, one day prior to the claimant's 18 th birthday.
The claimant's background was fully set out in support of the application. The claimant described his ties to the UK, including that by then he had a little sister born in the UK (on 5 th December 2009) who is a British citizen. He also referred to the difficulties that he had had to overcome in consequence of his unsettled family life. The difference between the lack of security, in terms of presence in the UK, as between him and his younger brother (and indeed sister) was also identified. A number of character references and other documents were included with the application demonstrating that whilst the claimant had had a difficult and disrupted family background and, perhaps unsurprisingly, some difficulties during adolescence (as described by KW in her letter of 15 th November 2012 in support of his application), he was by the time of his application undertaking a plumbing course and enjoying a fulfilling and appropriate social life.
The claimant did not declare his criminal conviction for possession of cannabis and the fact of his conditional discharge in the application form. This was because neither he nor KW understood that what had occurred constituted a conviction. There is no suggestion that they were anything but honest in that account. The claimant did refer to a spent youth referral order.
By a letter dated 18 th January 2013, the defendant refused the claimant's application. This was on the basis that the claimant did not meet the "good character" requirements of the British Nationality Act 1981. The letter states:
"In certain circumstances, we would disregard a recent conviction for a single, minor offence but normally we would not grant citizenship to a person who has been …… convicted of a non-custodial offence in the last three years …. Your client was convicted on 19 th April 2012 at West London Juvenile Court. As your client's conviction is not one that we would normally disregard, nor can we find grounds to disregard it exceptionally outside our published policy, we cannot be satisfied that the good character requirement is met. The application has therefore been refused."
The letter went on to state that it was open to the claimant to apply again but an application made before 19 th April 2013 would be "unlikely to succeed". The letter went on to record that the defendant's policy on "criminality" changed on 13 th December 2012 (after the date of the claimant's application) "whereby the Rehabilitation of Offenders Act 1974 is no longer used to determine whether an applicant is of good character for citizenship purposes." It is not clear, then, that the claimant's conviction will be disregarded even when "spent" should he choose to make a fresh application (the later decision of 6 th June 2013 suggests that the conviction "will not be clear until 19 th April 2015"). There is no reference in the letter to the offence for which the claimant was convicted or to the sentence (a conditional discharge), to his age, to the mitigating factors in play (such as his disrupted childhood), or to the evidence of his current good character as evidenced by the references from his foster carer and social worker showing real improvements in his behaviour and a commitment to study and training.
On 5 th March 2013, the claimant's solicitor sought a review of the defendant's decision. In that application, the claimant's solicitors explained how the failure to declare the claimant's criminal conviction arose, namely that both he and his foster mother believed that when they were informed no further action was to be taken – in relation to the charge dismissed – they had assumed that that applied equally to...
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