The Secretary of State for the Home Department refused the citizenship applications of the wife and two minor children of an Islamist extremist relying on the residual discretion to refuse to naturalise a person imparted by the use of the word “may” in the British Nationality Act 1981. The refusal was justified by the Home Office as punishment by proxy which would have the effect of deterring other extremists. The High Court has declared that unlawful in the case of MM & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin).

The refusal of citizenship on discretionary good character grounds is a growing phenomenon, as has been discussed previously on this blog. Because such decisions are discretionary, though, it means that Home Office officials have a great deal of leeway about how to define what is meant by “good character”. This makes legal challenges very difficult, unless it can be shown that, for example, the Home Office has failed to apply its own guidance or has ignored evidence that should have been taken into account. Some cases do succeed, and this is one such.

There was nothing in the policy on good character or discretionary refusal, set out in the Nationality Instructions at Chapter 18 Annex D, that suggests that one person can be refused on the basis of the conduct of another person; everything about the good character requirement suggests that it is all about one’s own personal character. In this case, there was no suggestion that the applicants were themselves anything other than of good character. Counsel for the Home Office even confirmed at the hearing that there was no “lurking doubt” about the applicants. The only issue was that they were linked by family relationship to someone who was not of good character; the Home Office argued that the refusal of the applications on that basis would have the effect of deterring other extremists in future for fear of harming their own families and that the statutory power to refuse on good character was sufficiently wide to allow for this.

In his judgment, Ouseley J sums up the chilling approach of the Home Office in this case:

No connection between the applicant for naturalisation and such a potential extremist is necessary. It is merely necessary, for the intended deterrent effect to arise, that the potential extremist should know that the SSHD will exercise the discretion against the grant of naturalisation to his or her own family members albeit of good character.

Ultimately, Ouseley J concluded that the statutory power to refuse citizenship applications on good character grounds conferred on the Secretary of State for the Home Department by the British Nationality Act 1981 was limited to considering the character of the applicant and that it was not permissible to exercise that power by considering the character of somebody else:

In view of the statutory focus on the individual applicant, and the very broad express power which the SSHD has to formulate the requirements for measuring the good character of the applicant, and to refuse naturalisation if not satisfied of it, I do not consider that Parliament conferred the discretionary power for the pursuit of broad and general public policy objectives…

The factor which has led to the exercise of the discretion in this case is not one related to the personal or individual qualities, attributes or failings of an applicant. The deterrent possibility may arise because the applicants are related to HY, but the deterrent purpose of the decision is directed not at the applicants but at others. The factor applies regardless of any connection between the individual applicant and any person at whom the deterrent is aimed, and regardless of any ability of the applicant to control what those others may do or think. The use of naturalisation decisions in an attempt to affect the behaviour of those to whom the applicant may or may not be connected – and, in this case, no applicant was said to be connected to a person at whose behaviour the deterrent effect of the decision was aimed – would require a very broad discretion to have been conferred, enabling otherwise successful applicants to be refused for a variety of reasons which served some general public interest as judged to exist by the SSHD. There is no reason on the SSHD’s argument for the connection between refusals of naturalisation and deterrence to stop there, since it could cover all criminal or undesirable activity. Such a purpose does not come within the scope of a limited backstop discretion.

The Home Office decision in this case is astonishing; a citizenship application by blameless family members was refused on good character grounds in order to deter extremists by threatening to punish their families. The outcome of the court case is a reminder of the importance of the judiciary in maintaining the rule of law in the face of an executive that attempts to misuse the powers granted by Parliament.

This blog post has been amended to reflect that the decision to refuse was in this case not based on the good character provision but on the residual discretion of the Secretary of State to refuse to naturalise a person who applies for it.