R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 is another valiant but failed attempt to challenge the Home Office’s good character policy in relation to applications for British citizenship.

The issue in this case was whether the policy of looking back at a person’s immigration status in the decade prior to the application was lawful. Mr Al-Enein had been in the UK without valid leave between 20 November 2007 and 27 January 2010, when he was removed to Lebanon. He returned to the UK lawfully in 2012 as the fiancé of a British citizen and subsequently progressed to indefinite leave to remain. He applied for naturalisation in June 2015, but was refused for failing to meet the good character requirement due to non-compliance with UK immigration laws in the decade prior to application.

The particular challenge attempted here was to argue that the British Nationality Act 1981 already sets out a specific time period over which an applicant for naturalisation must have been resident in the UK and not in breach of the immigration laws. That period is three years for spouses/civil partners of British citizens, or five years for everyone else. This is what Parliament decided in enacting the legislation. But then the Secretary of State, using his or her (I lose track) statutory discretion to determine whether or not a person is of good character, is actually expanding that time period by a further seven or five years depending on the category. Doing so, it was argued, is ultra vires.

If this argument seems familiar, well, it is. I had a pop at this a few years ago (and I’m totally not bitter that no reference whatsoever was made to the Court of Session’s judgment, further fuelling the long-held belief north of the border that nobody outside Scotland bothers to read our case law, even where it raises similar issues).

It seems fundamentally unfair that Parliament, after appropriate debate and scrutiny, specifies a required period of immigration compliance for would-be citizens, only for the Home Office to effectively lengthen it. One would think that if Parliament had intended an examination of a person’s immigration status over a longer period, Parliament would have passed legislation to that effect. But the Court of Appeal, like the Scottish courts, was having none of it: 

Although those requirements laid down by Parliament are statutory minimum requirements, there is no reason in law why the Secretary of State cannot impose an additional or extended requirement relating to breach of immigration laws as properly being a matter which is relevant to the more general question of good character… that requires an assessment or evaluation by the Secretary of State of all the relevant circumstances going to that issue.

In other words, since Parliament has required the Secretary of State to determine whether a citizenship applicant is of good character without specifying how this is to be done, the Secretary of State can apply whatever policy he or she likes.