The High Court has overturned the refusal on character grounds by the Home Office of a British citizenship application by a migrant child. Karon Monaghan QC sitting as a Deputy Judge of the High Court held that the Secretary of State had acted unlawfully in fettering her discretion by applying too rigid an approach, failing to carry out an evaluative exercise, ignoring relevant considerations, treating 16 and 17 year olds as if they were adults for character purposes and arbitrarily and disproportionately interfered with the child’s Article 8 private and family life. The Nationality Instructions are also held unlawful in their drawing of a bright line distinction between 16 and 17 year olds and other children.

It would be fair to say that the refusal was held to be than a little bit unlawful. The case is R (on the application of SA) v Secretary of State for the Home Department [2015] EWHC 1611 (Admin).

Refusals of British citizenship to children on grounds of good character is a serious issue. Recent Home Office data showed that hundreds of children were refused on good character grounds, including 25 children aged 10-13.

Good immigration lawyers and social workers who work with migrant children in care know the importance of making British citizenship applications. The effect of separation from parents and the very poor outcomes for children placed in care often lead to such children getting into trouble with the authorities, at which point they become very vulnerable to deportation if they have not applied for citizenship. The Nationality Instructions include a section at Volume 1, Chapter 9, section 9.23 onwards specifically on children in care of which practitioners should be aware.

In this case the citizenship application was made on discretionary grounds: the applicant had no entitlement to British citizenship. The only ground for refusal of the citizenship application was a single unspecified recent criminal conviction. There was no reference in the decision to the offence for which the claimant was convicted or to the sentence, to his age, to the mitigating factors in play (such as his disrupted childhood), or to the evidence of his current good character as evidenced by the references from his foster carer and social worker showing real improvements in his behaviour and a commitment to study and training.

In fact the child concerned had pleaded guilty to a charge of possessing cannabis for which he was given a six-month conditional discharge. He had also, with his foster carer, put forward other material on his character.

The lack of reference to any of the relevant factors proved fatal to the Home Office case because it precluded an argument that any of the flexibility supposedly built into the relevant policy had been applied. The case of Hiri v SSHD [2014] EWHC 254 (Admin) is relied on. The argument in the case was far more wide ranging, though, and welcome and extensive reference is made to the UN Convention on the Rights of the Child and to section 55 of the Borders, Citizenship and Immigration Act 2009, both of which are held to be relevant to the determination of a citizenship application by a child. The following principles are drawn from the authorities and helpfully summarised by the judge at paragraph 64 of the judgment:

a) The defendant may only exercise her discretion to grant citizenship under section 3 where she is satisfied that the person concerned is of “good character” (section 41A(1), British Nationality Act 1981).

b) In determining whether she is so satisfied, the defendant must make an evaluation of the applicant’s character based on all of the material before her. In the case of criminal convictions she will need to take into account the seriousness of the offence, mitigating factors and the severity of any sentence. In assessing the relevance of any convictions for offences committed as a child (that is, under the age of 18), regard will need to be had to the rehabilitative objectives reflected in Article 40 of the UNCRC and the primacy given there to “reintegration.”

c) The defendant must have proper regard to the guidance in the Nationality Instructions in undertaking any assessment of character but these cannot and should not fetter the exercise of the defendant’s discretion in any particular case. The policy reflected in the Instructions must not be applied mechanistically and inflexibly. There must be a comprehensive assessment of character in each case which involves an exercise of judgment. It seems to me too that since it is axiomatic that the opportunities for a child or young person to establish “good” character are likely to be more limited than in the case of an adult (who may refer to patterns of employment, contributions to community or public life and the like) account must be taken of that in weighing the matters relied upon to establish good character as against those pointing the opposite way.

d) Article 8 may be engaged by a decision not to grant citizenship where the necessary threshold for an interference is reached but in any event where that decision is arbitrary or discriminatory. Further, in assessing whether there is justification for any interference with Article 8 in the case of a child (that is a person under the age of 18), regard will need to be had to the material provisions of the UNCRC. There may be little room for justifying an interference with Article 8 where reliance is placed on (at least) non-violent offences committed when a minor, that is under the age of 18, having regard to the terms of Article 40 of the UNCRC.

e) Whilst section 55 of the 2009 Act may be material to the exercising of a relevant discretion in the case of an adult where there has been an historic failure to comply with section 55 which has led to a present injustice, it does not otherwise apply to the exercising of functions at a time when a person has reached the age of majority.

Finally, the judge shows welcome empathy for the position of the applicant and those in a similar position and the difference that citizenship can make.

The importance of citizenship is perhaps obvious but in addition to the subjective experience that may come with it – in particular affecting one’s sense of identity and belonging – a person who has a right of abode in the UK is free to live in, and to come and go to and from, the UK without let or hindrance (section 1(1), Immigration Act 1971). Such a person is in general free from immigration control. A person has the right of abode in the UK if he is a British citizen. So with British citizenship, the claimant would enjoy the comfort of complete security in knowing that he can come and go freely throughout his life. As the defendant’s decisions (albeit the latter overturned on appeal) on leave to remain in the claimant’s case make clear, that is no small matter.

With the huge political and media pressure on the judiciary on the issue of migration and criminality, basic human empathy — a vital quality in a good judge — is in very short supply in some parts of the courts and tribunal system.

A really good result for David Chirico and Liz Barratt of Bindmans.