The High Court has found that a decision to refuse to register a child as a British Citizen was lawful, despite the “barely stated” reasons given. The case is R (OBN (a minor) by his litigation friend ASM) v The Secretary of State for the Home Department [2024] EWHC 1833 (Admin).

Background

The claimant was born on 19 December 2013 in Bangladesh. He arrived in the UK with his mother on 13 September 2020 when he was six years old, with leave to enter until 22 April 2023. His father, ASM, naturalised as British in 2021 and the claimant’s sister was born on 18 September 2021 as a British citizen. On 25 February 2023 his father applied for the claimant to be registered as a British citizen under section 3(1) of the British Nationality Act 1981, which is for registration at the discretion of the Home Secretary.

The application was refused on 26 April 2023. The refusal letter said that the claimant did not meet the criteria in the guidance as he was not settled and although one of his parents was British, the other was not settled. The letter concluded by saying that “I have considered whether there are grounds to exercise discretion to register you as a British citizen, however, I am not satisfied there are sufficient grounds to do so. As you are a child, I have considered your best interest in making this decision.”

The claimant (via his father) sought judicial review of this decision.

Preliminary issue: failure to request an administrative review of the refusal

The refusal letter said that the claimant had the right to ask for an administrative review of the decision. The claimant instead proceeded to a judicial review. The Home Secretary took issue with this and sought to have the claim dismissed on the grounds that there was another remedy available.

This was resisted by the claimant on the basis that the outcome of an administrative review would have been the same. This was supported by the fact that a detailed response had been sent to the pre action letter rebutting the points made and declining to make a different decision.

The judge said that “In these circumstances, whilst I consider that the claimant’s father should have exercised the right to request a review, I do not consider that I should refuse the claim on the grounds that he failed to do so.”

The High Court’s decision

The claimant’s main submission was that discretion under section 3(1) is wide and there was no requirement for the claimant or his mother to be settled in the UK, as had been referred to in the refusal letter. The claimant relied on R (on the application of K (A Child)) v Secretary of State for the Home Department [2018] 1 WLR 6000 where the High Court said in relation to section 3(1) that “The Secretary of State’s discretion under that section is an open ended one which may take into account any matter which the Secretary of State rationally considers relevant”.

The decision was also challenged on the grounds that the refusal letter did not demonstrate that the Home Secretary had discharged the duty to safeguard and promote the claimant’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009.

The refusal letter simply said “As you are a child, I have considered your best interest in making this decision. You can find out more about why and how we consider a child’s best interests at https://www.gov.uk/government/publications/children-nationality-policy guidance.” The claimant argued that provision of a URL (which I learned from the decision stands for “uniform resource locator”) was insufficient to demonstrate that the section 55 duty had been discharged.

The High Court rejected the challenge, holding that:

I am satisfied that the reasons leading to the refusal to grant the claimant British citizenship is adequately, if somewhat barely, set out in the of refusal letter. There is sufficient information contained in the refusal letter for those acting on behalf of the claimant to understand why he did not satisfy the criteria in the Guidance, and why after consideration of his best interests, the SSHD did not exercise his discretion to permit his registration as a British citizen.

Conclusion

Leaving aside the substantive decision, I think the decision on the administrative review point really could have gone either way. This case is a good reminder of the importance of checking whether judicial review is the appropriate remedy or whether there is another option that should be pursued first.