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Overturning a citizenship refusal based on character concerns is very difficult
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Deciding whether someone is of good character in the context of a citizenship application is up to the Home Office. Getting that decision overturned in the courts is likely to be very difficult.
This is what we learn from the Court of Appeal’s decision in R (Amin) v Secretary of State for the Home Department  EWCA Civ 439.
The appellant, Mr Amin, is an Iraqi national. His family has been friends with Mullah Krekar’s family since the 1970s. Mullah Krekar is the leader of Ansar al Islam, “regarded as a group with extremist views”. Mr Amin visited Mullah Krekar in Norway in August and November 2004. During the November trip, Mr Amin married Mullah Krekar’s daughter, although they later divorced. He also lived with members of Ansar al Islam in London in 2005.
Mr Amin was arrested in October 2005 and subject to a control order restricting his movements and ability to contact others (the order was subsequently found to be unlawful, and Mr Amin was given compensation). A subsequent (lawful) control order was imposed in August 2006 but withdrawn in July 2008. No criminal charges were ever brought against him.
Mr Amin’s association with Mullah Krekar and other members of Ansar al Islam led the Home Office to believe that he was not of good character and refuse his application to naturalise as a British citizen. There was, it said, no reason to assume that he was unaware of their extremist views. Mr Amin said he did not know, care about or share Mullah Krekar’s political views. He had remarried and had no reason to resume contact with his ex-wife (Mullah Krekar’s daughter). He was no longer associated with any members of Ansar al Islam. 14 years had passed. His life had moved on.
He argued that the decision to refuse his application for British citizenship was unlawful as the Home Office had failed to consider these factors. It was, Mr Amin said, irrational to look at past associations rather than his life now and to assume that Mr Amin shared the views of Mullah Krekar and the other people he associated with in 2005.
Court of Appeal’s decision
The Court of Appeal took the view that all relevant matters had been considered and the decision was not irrational. On the passage of time:
There is no fixed or set period after which earlier associations should be disregarded in deciding whether a person is of good character. The guidance does not set any fixed period. Nor, realistically, can there be any such fixed period. Whether such associations should be disregarded will be a question of fact in each case. The question will often be whether or not the applicant may continue to share, or approve of, the extremist views of those with whom he has been associating in the past. [Paragraph 27]
There was also an absence of positive evidence that Mr Amin had moderated his views (of course his position is that he never held them in the first place!). Also, the cessation of contact with Mullah Krekar was (in the Home Office’s view) due to the control order and the breakdown of his marriage rather than Mr Amin’s choice. As such, the passage of time was not enough. The Court of Appeal held that the Home Office was entitled to make that assessment. It was not irrational.[ebook 57266]
The court also held that Mr Amin’s subsequent marriage had been taken into account, thanks to the following catch-all phrase in the decision letter: “I have considered the information in your latest witness statement and do not feel it negates any of the reasoning behind the refusal”. The judges also noted that his views “may have remained substantially the same”, notwithstanding marriage and family.
On the question of whether Mr Amin shared the views of his associates, the Home Office was entitled to make that assessment. It was “not the result of any failure to have regard to any relevant factor”. The Home Office simply took a different view of the significance of “freely associating with people with extremist views”. That view was adequately explained and was not irrational. The guidance was correctly applied.
Where the applicable guidance has been followed, and detailed reasons are provided in the decision letter, it is likely to be very difficult to overturn a decision that a person is not of good character. Demonstrating that a decision is irrational is very difficult. The starting point, as the Court of Appeal reminds us, is that Parliament has entrusted the Home Office with assessing good character:
The question of whether the respondent is satisfied that the applicant is a person of good character, such that he should be regarded as eligible for the grant of British citizenship, necessarily involves an evaluation or judgment on the part of the Secretary of State. Parliament has assigned that judgment to the Secretary of State. Unless her decision is irrational, or exhibits some relevant failure to observe public law principles, the decision as to whether she is satisfied that the person is of good character in this context is a matter for the Secretary of State. Further, it is for the applicant to satisfy the Secretary of State that he is of good character; it is not for the Secretary of State to prove that he is not of good character. 
The fact that the burden is on the applicant to prove a negative is particularly onerous. It is clear from Amin that pointing to a lack of criminal convictions is not enough. Positive evidence of good character needs to be provided, to contradict the Home Office’s assessment. This may be difficult but, in the context of Mr Amin’s case, understandable.