The Queen (on the application of Mohammad Al Enein) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 26 June 2018 |
| Neutral Citation | [2018] EWHC 1615 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1247/2017 |
| Date | 26 June 2018 |
[2018] EWHC 1615 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(Sitting as a Deputy Judge of the High court)
Case No: CO/1247/2017
Philip Nathan (instructed by Oaks Solicitors) for the Claimant
Nicholas Chapman (instructed by Government Legal Department) for the Defendant
Hearing dates: 6 June 2018
Rhodri Price Lewis QC:
Introduction:
The Claimant challenges the decision of the Defendant not to reconsider an earlier decision refusing the Claimant's application for naturalisation as a British citizen on the basis that the Claimant had worked illegally in the United Kingdom during the period from the 20 th November 2007 to the 27 th January 2010 and had remained in the UK without leave between those dates and so was not compliant with UK immigration laws. The Defendant determined that on that basis and applying her policy set out in her Nationality Instructions the Claimant failed to meet the good character requirements of the British Nationality Act 1981. Permission to bring this claim was granted by Alexandra Marks sitting as a Deputy High Court Judge at an oral renewal hearing of the Claimant's application to bring the claim. Ms Marks gave permission solely on the second ground of claim, namely that the Defendant's policy is beyond the powers of, or ultra vires, the 1981 Act.
The factual background:
The Claimant is a Palestinian and 41 years of age. He arrived in the UK on the 13 th 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 (“an ARC card”) which was endorsed with permission to work. He has worked as a nurse in this country. On the 5 th March 2007 his asylum claim was refused. He appealed against that decision but his appeal was dismissed on the 14 th May 2007. Following unsuccessful applications for reconsideration of that decision, his appeal rights became exhausted on the 20 th November 2007. On the 18 th November 2008 the Defendant set directions for his removal from the UK and he was detained pending removal. He applied unsuccessfully for judicial review but he was not removed from the UK. On the 23 rd February 2009 the Defendant authorised his temporary admission to the UK with a restriction that he was not allowed to work. The Claimant applied to remain as a Tier 2 worker but that application was refused in September 2009. On the 27 th January 2010 the Claimant was removed to Lebanon.
The Claimant returned to the UK in 2012 with the Defendant's leave as the fiancé of a British citizen. On the 10 th September 20014 the Defendant granted the Claimant indefinite leave to remain in the UK as the spouse of a UK citizen and on the 15 th June 2015 the Claimant applied for naturalisation.
The refusal letter of the 20 th January 2016 states:
“One of the requirements for citizenship is that the applicant is of good character. ‘Good character’ is not defined in the British Nationality Act 1981 but the applicant is expected to have shown due regard for the laws of this country. Where an applicant has not been compliant with UK immigration laws in the ten year period prior to the date of application, the application will normally be refused. This would include where an applicant has been working in the UK without permission.
…
You were here without valid leave in the United Kingdom between 20/11/2007 when your appeal rights against the decision to refuse your asylum claim became exhausted until 27/01/2010 when you were removed from the United Kingdom. You were not therefore compliant with UK immigration laws during this period.
You have provided documentation which clearly shows that you were working here without permission during the period 20/11/2007 to 27/01/2010 and you cannot therefore satisfy the criteria at Chapter 18, Annex D, paragraph 9.7c of the Nationality Instructions. Your application has therefore been refused.
It is open to you to re-apply for citizenship at any time but an application made before 27/01/2020 is unlikely to succeed.”
On the 18 th April 2016 the Claimant's advisers, Good Advice UK, wrote to the Defendant asking for reconsideration of the decision to refuse naturalisation. On the 13 th December 2016 the Defendant wrote to those advisers and maintained the original decision. That letter stated:
“I would advise you that decisions in naturalisation/registration applications can only be reversed where it is clear that the original decision was NOT taken in line with the prevailing policy and nationality law at the time the decision was reached. The onus is on applicants to demonstrate that they satisfy the statutory requirements.
Your client's application was refused on 20 January 2016. The reason for refusal was that your client was in the UK without valid leave to remain between 20 November 2007 and 27 January 2010 and provided evidence that he was working during this time. It was therefore found that your client had not been compliant with the UK immigration laws.
In your submissions you do not dispute that your client was working in the UK between the dates stated above. However, you state that your client only became aware that his appeal rights were exhausted in March 2009 and that he immediately requested to voluntarily depart the UK. You state that your client was prevented from leaving the UK because the Home Office had lost his passport.
…The passport that was lost had expired on 27 March 2005 and as such was not a valid document for travel in March 2009. It also only became apparent that this document could not be located when your client requested its return after he had departed the UK. The loss of the passport therefore did not prevent the departure of your client as he was removed with travel documents and the lost passport was not valid at that time.
You also state that your client acted in good faith throughout his stay in the UK, that he complied with his reporting restrictions and that you claim your client did have the right to work during the dates stated above. In support of this you have provided a copy of your client's ARC card which is endorsed ‘Employment Permitted’ and was issued on 06 February 2007.
I have reviewed your client's immigration history and have noted that on 11 October 2008 your client was served with Immigration Notice IS96 which states: ‘You are not allowed to work or engage in any business unless you have been explicitly granted permission to do so. Failure to comply with any of the above restrictions without reasonable excuse is a criminal offence.’
Therefore this document expressly informed your client that he did not have permission to work and yet he continued to do so and has provided evidence that he was not compliant with this instruction. This document supersedes any previous documents issued (such as the ARC card) and was effective from the day it was served.”
The Claimant's advisers had not invited the Defendant to reverse her decision on the basis that her policy was beyond the powers of the 1981 Act.
The Law:
Section 6 of the British Nationality Act 1981 provides:
“Acquisition 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 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 him a certificate of naturalisation as such a citizen.”
Schedule 1 of the Act 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...
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R Mohammad Al-Enein v Secretary of State for the Home Department
...HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Rhodri Price Lewis QC sitting as a Deputy Judge of the High Court [2018] EWHC 1615 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Philip Nathan (instructed by Oak Solicitors) for the Nicholas Chapman (instructed by ......