Reassessing Proportionality: Implied Limitations and Judicial Review under Section 6 of the British Nationality Act 1981

The public law principles permit a judicial review on grounds such as “legality, procedural impropriety, and irrationality”, which may not be watertight, and “may include others such as proportionality or abuse of power”.²

Section 6(1) of the BNA 1981 provides:

Paragraph 1(1) of Schedule 1 to the BNA 1981 provides:

It is not necessary to set out the requirement of sub-paragraphs 2 and 3 which are concerned with periods of absence from the United Kingdom.

Paragraph 2 of Schedule 1 to the BNA 1981 gives the Secretary of State power “in the special circumstances of any particular case” to waive, or treat an applicant as satisfying, certain specified requirements under para. 1. The good character requirement is not among the requirements specified.

Section 44 of the BNA 1981 provides:

In R (on the application of Al-Enein) v SSHD [2019] EWCA Civ 2024, the Court of Appeal considered the correct construction of the statutory scheme, though section 44 does not appear to have been referred to in that case. After considering the minimum statutory requirements, which are not relevant here, the Court of Appeal set out the correct construction of the scheme as follows at [31]:

The concept of proportionality is ancient. It may be as old as the code of Hammurabi,³ namely an eye for an eye and a tooth for tooth fame. In the UK domestic order, it has been held that proportionality is based on the concept of fairness and avoids arbitrary or excessive decisions, owing its origins in modern times as a standard in public law to the Enlightenment where the relationship between the citizen and the state was based on a social contract.⁴

In the notable case of Kreuzberg⁵, the Prussian Supreme Administrative Court developed the notion that the state required special permission to interfere with a citizen’s civil liberties. Specific provisions of the law empowered the police to adopt such measures as are necessary for the maintenance of public order. The Court held, that, to test this reliance, it had to examine whether the police measures exceeded in intensity what was required by the pursued objective. This principle evolved into a proportionality principle.

In due course, proportionality became a constitutional principle, so that the legislature was also bound by it. The German Federal Constitutional Court, which was established after World War II, adopted and developed the proportionality principle into three elements: suitability (the measure should be suitable for the purpose), necessity (the measure should be necessary), and fair balance (the measure should not be disproportionate to the restriction which it involved).

The Federal Constitutional Court applies the proportionality principle as a generalized head of review for administrative action, and so proportionality plays a key role in the administrative decisions in Germany. In the context of citizenship, the Federal Constitutional Court has applied proportionality to citizenship on the basis that the criteria for citizenship are personal with the effect that a strict proportionality view would be necessary.⁶

In the UK domestic order, it has been held that proportionality is based on the concept of fairness and avoids arbitrary or excessive decisions, owing its origins in modern times as a standard in public law to the Enlightenment where the relationship between the citizen and the state was based on a social contract.⁷

In Bank Mellat⁸, Lord Reid referred to a common law test of proportionality with reference to the judgment of Dickson CJ in Oakes, which he held was “the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning” (74). As Lord Reid held (with whom Lord Sumption agreed) “its attraction is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit” (74, 20). It is evident from the reasoning in Bank Mellat that the proportionality test at common law in the United Kingdom involves a four-stage test, which is designed to ensure that a decision does not have unjust or arbitrary consequences through a fair balance test:

• i. The objective of the measure as having sufficient importance to justify the measure;

• ii. Suitability – in the sense of being connected to the relevant purpose;

• iii. Necessity – in the...