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Refusing citizenship for historic evasion of immigration control confirmed as lawful

Refusing citizenship for historic evasion of immigration control confirmed as lawful

A quick note on an unsuccessful challenge to a good character naturalisation refusal. The claimant sought to argue that the policy of refusing citizenship on the ground of bad character where the person had broken immigration laws in the preceding decade was ultra vires the British Nationality Act 1981. The case is R (Al Enein) v Secretary of State for the Home Department [2018] EWHC 1615 (Admin).

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Mr Al Enein is a Palestinian. Since 2014, he has had indefinite leave to remain as the spouse of a British citizen. But he had previously applied unsuccessfully for asylum in the UK. Between November 2007 and January 2010, he remained in the UK despite having no further avenue of appeal against the refusal to grant asylum. Documents included in his naturalisation application showed that he had been working for part of that time. The Secretary of State took that as evidence of bad character and refused naturalisation.

The refusal letter cited Home Office policy on good character. It says that a naturalisation application will normally be refused “if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having… been detected working in the UK without permission”.

Mr Al Enein argued that since the British Nationality Act 1981 already provided for refusal if an applicant had breached immigration laws, but only if the breach took place within the three years preceding the application, it was not open to the Secretary of State to make a breach that took place more than three years previously a deal-breaker. The court perhaps summarises the argument better:

as the 1981 Act by section 6(2) and Schedule 1 paragraph 3(d) requires that an applicant for naturalisation should not at any time within the period of three years ending with the date of his application be in breach of the immigration laws it is not permissible for the Defendant’s policy as set out in Annex D of the Nationality Instructions to indicate that an application for naturalisation will normally be refused if the applicant has not been compliant with immigration requirements for the ten years before the application.

The policy, he argued, makes paragraph 3(d) redundant.

Rhodri Price Lewis QC, sitting as a deputy High Court judge, disagreed. “The statutory regime”, he said, “clearly contemplates two separate requirements”. One is length of lawful residence, the other is good character. They are distinct:

Parliament has left it to the Defendant to decide whether he considers an applicant to be of good character, as a separate and different requirement. The Defendant has a broad discretion in that matter as Ali Fayed supra makes clear. It is within that broad discretion to decide that as a matter of policy he normally will consider an applicant who has not complied with immigration requirements in the ten years before his application, including by working in the United Kingdom without permission, to not be of good character.

Worth a try.

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.

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