The Queen (on the application of DC) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Charles Bourne |
| Judgment Date | 02 March 2018 |
| Neutral Citation | [2018] EWHC 399 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/20/2016 |
| Date | 02 March 2018 |
[2018] EWHC 399 (Admin)
Mr Charles Bourne QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/20/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Chirico (instructed by Bindmans LLP) for the Claimant
Ms Julie Anderson (instructed by The Government Legal Department) for the Defendant
Hearing dates: 30 th January 2018
Judgment Approved
Mr Charles Bourne QC (Sitting as a Deputy High Court Judge):
Introduction
This is an application for judicial review of a decision by the defendant Home Secretary on 18 June 2015 refusing the claimant's application to be registered as a British citizen, and a decision of 8 September 2015 upholding the first decision on review.
The claim was lodged in the Upper Tribunal on 17 September 2015 and was transferred to this Court on 21 December 2015 because it fell outside the tribunal's jurisdiction. Permission to apply for judicial review was refused on paper, but was granted at an oral hearing on 8 September 2016 by King J.
The Facts
The claimant is a national of Ivory Coast. He was born on 27 November 1996 and is now aged 21. He entered the UK on 10 May 2001 at the age of 4 and was granted temporary admission. It is not clear who his mother was, although he was accompanied to the UK by a woman who claimed to be his mother and by another child who may be his twin brother. The present whereabouts of the woman who claimed to be his mother are unknown. At the start of this hearing I made an anonymity order to prevent disclosure of the claimant's identity.
The claimant suffered neglect as a child while in the care of his father, a naturalised British citizen who also originally came from Ivory Coast. Social services became involved when the claimant was 6 years old and his local authority was granted a care order in respect of him on 21 October 2006 when he was nearly 10. He was assessed as having cognitive difficulties but remained in full-time education until he was 18, then proceeding to an apprenticeship, living at that time with foster carers.
He has unfortunately come to the attention of the criminal authorities. According to the printout from the police national computer, on 24 August 2011 he received a reprimand for an offence of shoplifting committed on 20 July 2011. He was then aged 14. Then, on 17 November 2011 he pleaded guilty to offences of robbery and handling stolen goods committed on 18 September 2011, for which he received a 9 month referral order. On 20 November 2012 he received a further 2 month referral order for possessing a bladed article in a public place. On 25 February 2013 he received a further reprimand for possession of cannabis. At that point he was aged 16.
There are also some more recent offences on the claimant's record to which I shall return below.
Turning to the claimant's immigration history, an application for indefinite leave to remain in the UK was made on his behalf on 6 January 2006 and a short period of leave was granted. Following a further application, on 12 October 2009 he was granted discretionary leave to remain until 12 October 2013. A further application for discretionary leave was made under cover of a letter dated 8 November 2013, and on 17 February 2014 the defendant granted the claimant indefinite leave to remain. Then, on 17 November 2014 the claimant applied for British citizenship. At that time he was 10 days short of his 18th birthday.
The Law
Under the British Nationality Act 1981, a minor may become a British citizen by registration. After majority, a person may become a British citizen by naturalisation.
In respect of registration section 3(1) of the 1981 Act provides:
“If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.”
Section 41A(1) of the 1981 Act provides:
“An application for registration of an adult or young person as a British citizen under section … 3(1) … must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character.”
The requirement of good character is also imposed on adult applicants for naturalisation by section 6 of the Act and paragraph 1(1) of schedule 1 to the Act.
The Home Office maintains published policies relating to applications for naturalisation and registration. At the relevant time, registration was the subject of chapter 9 of the Nationality Instructions, which contained this reminder of the need for guidance to be exercised flexibly:
“9.1.6 IT IS IMPORTANT TO REMEMBER that the guidance in this Chapter does not amount to hard and fast rules. It will enable the majority of cases to be dealt with, but because the law gives complete discretion each case must be considered on its merits. All the relevant factors must be taken into account, together with any representations made to us. If we do not, we are open to criticism for not exercising our discretion reasonably.
9.1.7 It is therefore possible to register a minor under circumstances that would normally lead to the refusal of an application or to refuse when normally a child might be registered if this is justified in the particular circumstances of any case.”
Chapter 9 at the time of the decisions repeated the requirement for children and young persons over the age of 10 to be of good character in order to be registered as British citizens: see paragraph 9.17.28. The guidance told staff that in the case of an applicant for registration, they should:
“… take into account the standards of character required for the grant of citizenship to an adult at the Secretary of State's discretion”.
That guidance had changed between the time of the application and the time of the decisions. There were no transitional provisions and so the later version was applied. I note that the earlier version stated that “the character of a child becomes a more important consideration the nearer the child is to the age of majority” (the old paragraph 9.17.28) and that refusal would be the usual course for a minor aged 16 or over who did not meet the adult standard, whilst refusal should be considered for a minor aged under 16 “if available information suggests serious doubts about character”.
The Court in R (SA) v SSHD [2015] EWHC 1611 (Admin) held that this “bright line” distinction at the age of 16 was irrational and contrary to domestic and international provisions which treated as minors those who were under 18, and the policy was changed as a result. Nevertheless, the earlier version is of interest by revealing the defendant's recognition that less weight might be attached to criminal behaviour which had occurred in childhood and at a lower age.
In this case, then, the policy relating to adults was to be applied “at the Secretary of State's discretion”. That policy is found in Annex D to chapter 18 of the Nationality Instructions. Paragraph 1.3 states that the decision maker “will not normally consider a person to be of good character if there is information to suggest … they have been convicted of a crime …”. Section 2 states:
“Having a criminal record does not necessarily mean that an application will be refused. However, a person who has not respected and/or is not prepared to abide by the law is unlikely to be considered of good character.”
Under paragraph 2.1 an application “will normally be refused” in the case of a “non-custodial sentence or other out of court disposal that is recorded on a person's criminal record” if it occurred in the last three years, whether or not the matter is spent. The last words reflect a policy change which occurred in 2012 whereby the provisions of the Rehabilitation of Offenders Act 1974 no longer applied to immigration and nationality decisions including the grant or refusal of citizenship (see section 56A of the UK Borders Act 2007). This is significant in the present case because, for all other purposes, a reprimand (which is a relevant “out of court disposal”) becomes spent immediately.
Sub-paragraph 2.2 of paragraph 2.1 states:
“Where this section states an application will normally be refused if a person has been convicted, exceptions should only be made in exceptional circumstances.”
Those sections of the policy do not direct a different approach for offences committed when the applicant was a child or young person. However, paragraph 3.8 refers to a discretion to refuse an application where there is a non-custodial sentence or other out of court disposal which is more than three years old, where the circumstances call the person's character into question. It indicates that relevant circumstances may include the number of such sentences/disposals, the period over which they occurred and whether this indicates a pattern of behaviour which could justify refusal, the nature of the behaviour, any other historical or recent convictions and any other factors including the circumstances of the person's life and any positive evidence of good character and, under the heading “Age”:
“Decision makers should take into account a person's age at the time older non-custodial sentences were imposed or other out of court disposals took place. Isolated youthful indiscretions will not generally indicate a person is of bad character if that individual has clearly been of good character since that time.”
The passage concludes by reminding decision makers that “each case will depend on its individual circumstances and must be determined on its own merits”.
Section 10 of Annex D is headed “Exceptional Grants” and provides:
“There may be exceptional cases where a person...
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