England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/07/2014

The Hon Mr Justice Burnett :

1. The claimant is a New Zealand national born of a Bolivian mother on 30 May 1998 who has lived in the United Kingdom with her since 29 January 2005. She is an overstayer who has been in a long-term relationship with a Spanish national. The relationship between the claimant's parents broke down long ago. His father lives in New Zealand with his wife and children, but has business interests in the United Kingdom which he runs from abroad. He was granted indefinite leave to remain in September 2004. He has no immediate plans to return to live here but intends eventually to do so. He owns a flat in London. The claimant himself was granted indefinite leave to remain on 21 August 2006. The claimant has visited New Zealand twice. His father keeps in touch and provides financial and emotional support.
2. In January 2013 the claimant applied for registration as a British citizen. In addition to the information provided in the form designed for use in such circumstances, a bundle of supporting documents was provided together with a covering letter from solicitors acting on his behalf. His parents gave their consent, indeed their full support. The application was refused by letter dated 20 February 2013. The claimant's solicitors sought a review of that decision, there being no right of appeal. The decision was maintained. Two further decision letters were provided by the defendant, dated 16 May and 7 August 2013.
3. The claimant seeks judicial review of the decision to refuse his application on grounds which might be summarised as follows:

i) The decision is not in accordance with section 55 of the Borders Citizenship and Immigration Act 2009 ["section 55"] (which reflects article 3 of the United Nations Convention of the Rights of the Child) ["UNCRC"] because the defendant has not paid proper regard to the best interests/welfare of FI.

ii) The policy applied by the defendant is unclear on how the best interests of a child applicant for registration should be treated and is thus unlawful.

iii) The defendant misapplied her policy to the claimant and, on the material before her, her conclusion was flawed.

4. Section 3 of the British Nationality Act 1981 makes provision for the registration of minors as British citizens. There are a number of circumstances in which a minor is entitled to registration, but none applies in this case. Subsection (1) provides a broad discretion to the Secretary of State whether to grant an application for registration:

"If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as a British citizen."

There is no statutory lexicon of factors which the Secretary of State must take into account when considering such applications. It is common ground, however, that she is bound to apply section 55 which provides:

"(1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) …

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b) …

(c) …

(d) …

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

5. In discharge of her statutory duty under section 55 the Secretary of State issued guidance in November 2009 entitled "Every Child Matters Change for Children" ["the Statutory Guidance"]. The Statutory Guidance is modelled on guidance issued under section 11 of the Children Act 2004 ["the 2004 Act"]. It explains that safeguarding and promoting the welfare of children includes preventing impairment to a child's development which in turn includes "social development and enabling children to have optimum life chances and enter adulthood successfully" (1.4). It says that where possible the wishes and feelings of the particular child must be taken into account (1.14 and 2.27). It is not suggested that this Statutory Guidance is defective. Much of it is concerned with more immediate issues of welfare which can arise in the context of immigration decisions. In this case the grant of citizenship would have very little practical impact on the claimant. The claimant lives with, and would continue to live with, his mother. His education would continue as before. His life would carry on just as it is, because he has indefinite leave to remain. Miss Weston points to the intangible benefits of citizenship and, in particular, a sense of belonging which she submits are all of significance. She prays in aid the approach to section 55 found in the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.
6. In paragraph 23 of her judgment Lady Hale noted that the international law obligation found in article 3.1 UNCRC to regard the best interests of a child as a primary consideration found its way into domestic law via section 11 of the 2004 Act. It had no application to immigration and nationality decisions because the United Kingdom had entered a reservation in that regard which was not lifted until 2008. Section 55 was the legislative response to that modification of the United Kingdom's international law obligations. The Supreme Court equated the "best interests" test found in article 3.1 UNCRC with the welfare obligation found in section 11 of the 2004 Act and section 55.
7. ZH was a striking case concerning two children who were British citizens through their father, whilst their mother was Tanzanian. The children lived with their mother who was separated from the father. The children had a good continuing relationship with him. The mother had an appalling immigration record and had been unsuccessful in multiple attempts to secure permission to remain in the United Kingdom. An article 8 claim at first failed. The reasoning of the Tribunal had included a finding that the children could reasonably be expected to go with their mother to Tanzania. Lady Hale indicated that in the context of a decision which would result in the departure of the children from the United Kingdom their nationality was not a "trump card". Nevertheless, it is of particular importance in assessing the best interests of the child. This is because forcing children to leave the country of which they are a citizen would deprive them of "its protection and support, socially, culturally and medically and in many other ways evoked by, but not confined to, the broad concept of lifestyle" (paragraph 30). Lady Hale went on to refer to social links and the interference with education should children be forced to leave (paragraph 31). In paragraph 32 she said:

"Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults."

8. It is readily apparent that the claimant's circumstances are markedly different. The obligations which arise under section 55 are in play in the decision relating to citizenship even though the grant or refusal of registration would make not have the type of consequences in play in ZH. Miss Weston pointed to the inconvenience of needing to obtain visas to travel in Europe, although there is no material before me concerning the relevant requirements for New Zealand nationals.

The Secretary of State's Policy

9. As in so many areas where statute confers a broad discretion upon the Secretary of State, staff instructions have been developed to guide decision makers in the exercise of that discretion and to ensure consistency of approach. The parts material for the purposes of the claimant's application are as follows:

"9.1.4 A number of other factors are normally taken into account in deciding whether or not to register a minor under this provision. This Chapter gives guidance about how discretion should normally be used under the law.

9.1.5 IT IS IMPORTANT TO REMEMBER that the guidance in this Chapter does not amount to hard and fast rules. It will enable the majority of cases to be dealt with, but because the law gives complete discretion each case must be considered on its merits. All the relevant factors must be taken into account, together with any representations made to us. If we do not, we are open to criticism for not exercising our discretion reasonably.

9.1.6 It is therefore possible to register a minor under circumstances that would normally lead to the refusal of an application or to refuse when normally a child might be registered if this is justified in the particular circumstances of any case.

9.17.1 Chapter 9.6 to 9.16 deal with applications from minors in a variety of different circumstances. This section deals with all other applications. It sets out, broadly in order of importance, criteria which other minors are normally expected to meet.

Future intentions

9.17.2 The most important criterion is that the child's future should clearly be seen to lie in the UK. A reliable indicator should be the applicant's and/or the family's past behaviour. If that suggests an established way of life in the UK, and we have no reason to think that this will not continue, we should accept at face value that the child intends to live here.

9.17.3 If there is any information to make us doubt that the child's future lies here, for example:

the child, or one or both parents, has recently left the country for a period of more than six months

the child is about to leave the United Kingdom

one or both parents is resident aboard.

we should write to clear up the point. If our doubts are serious, and we are still not satisfied this criterion is met, the application should be refused.

Children in the United Kingdom

9.17.4 In most cases the child's future is straightforward and self-evident. We should normally accept that the child meets this criterion if:

future intentions are confirmed on the application form; and

the residence criteria in 9.17.17-9. 17.29 are met; and

the child has an established home here.

Citizenship and immigration status of the parents

We should normally expect that:

at least one parent is a British citizen or

one of the parents has applied to be registered or naturalised as a British citizen and the application is going to be granted (if the parent's application is to be refused, we should normally refuse the minor's application as well);

and

the other parent is either settled in the United Kingdom (see Annex F to Chapter 6); or

whilst not settled, is unlikely in the short or medium term to be returnable to his or her country of origin (e.g. s/he has been granted Discretionary Leave), and there is otherwise no reason to think that the child's future does not lie in the United Kingdom.

9.17.11 It will rarely be right to register a child neither of whose parents is or is about to become a British citizen. However, each case should be considered on its merits, and there may be exceptional circumstances to justify registration in a particular case, such as for example:

older teenagers who have spent most of their life here, or

minors who require British citizenship in order to follow a particular career (e.g. sport, Armed Forces, etc).

and

the minor's future can clearly be seen to lie in the United Kingdom, and, in relevant cases only,

the person making the application has day to day care and responsibility for the child's upbringing, and either is, or is about to become a British citizen but see section 9.21 on applications made by guardians.

9.17.12 An application which falls outside these criteria should not normally be approved, even if there are British citizen siblings or siblings with entitlements to registration as a British citizen, unless we are satisfied that registration would be in the child's best interests."

(All underlining and emphasis is as in the original)

10. The particular factors in paragraphs 9.6 to 9.16 have no bearing on FI's application. It was considered under paragraph 9.17. The claimant's case is that, on any view of the material before the defendant, it was "clear to be seen" that his future lay in the United Kingdom. Any doubts should have been followed up with the claimant by writing for further information as contemplated by 9.17.3. The claimant recognised in his application that the normal expectation relating to the nationality of his parents was not met but argued that exceptionally it was appropriate to register his citizenship.

The Evidence in More Detail

11. The letter covering the application outlined the background to FI's parents' relationship and the circumstances in which he and his mother used to travel from Bolivia to London, to visit his father. FI obtained his New Zealand passport in September 2000. At the time of FI's application for registration his mother had been living with her Spanish partner in the United Kingdom since 2006 and had made an EEA family application to leave to remain. The letter confirmed that it was her intention to live permanently in the United Kingdom and apply for citizenship in due course. The solicitors went through each relevant part of the Policy and in particular confronted paragraph 9.17.11 which normally requires at least one parent to be a British citizen before a child can be registered. They reminded the reader that FI had been here since he was 7 (in fact he was still 6 when he arrived) and was approaching his 15^th birthday at the time of his application. He had been in the United Kingdom for more than eight years, six of them with indefinite leave to remain. They referred to a letter from one of his teachers, Angela Turpin, which spoke of FI being a credit to his school and excelling in his studies. He had already achieved five GCSEs early. She explained that it would be in his best interests to have citizenship because it would make him feel more settled. The application was supported by copious evidence of his achievements. The solicitors noted that FI does not hold a Bolivian passport and that there was no family support there. The background includes a description of how his mother fell out with her family because her relationship with his father was outside marriage. The point was that his whole life was here. There was no question of FI moving to New Zealand. The letter referred to those parts of the policy which emphasised its flexibility and concluded by explaining the application of section 55 and the Statutory Guidance.
12. The good character requirements were satisfied. The necessary parental consent was provided and Ms Turpin and another individual provided references. FI himself provided a short statement. It was directed towards what the Policy places at the top of the list of factors, broadly in order of importance, namely where his future lay. It covered briefly FI's impressive educational achievements so far and his aspirations. He wants to go to university with his friends and sees his future in London. He confirmed that he would not want to live in New Zealand or Bolivia. He would stay with his mother and her partner. They have lived together since 2006. He concludes by saying that he could only imagine his future in the United Kingdom where all his cultural links were. He had visited New Zealand for holidays but never returned to Bolivia. FI's father provided a statement describing his close contact with FI, the holidays they have taken together and the fact that he pays the rent on the flat in which he lives with his mother. He also paid the £551 fee for making the application for registration. He confirmed that FI's future was in the United Kingdom, his own intention to return and indicated that he had not yet applied for British citizenship because he had not been resident in London for long enough.

The Decision and Reasons

13. The decision refusing registration was conveyed in a short letter dated 20 February 2013. The only reason given was that neither parent was a British citizen and that 'sufficient grounds' could not be found to treat the application exceptionally. The defendant offered to review the decision, on payment of a further fee. By letter dated 2 April 2013, the claimant's solicitors sought a review and asked for reasons, relying on R v Secretary of State ex parte Al Fayed [1998] 1 WLR 763. They reiterated that it was in the best interests of the claimant to be granted citizenship, and referred to section 55. No reply was received. A letter before action followed on 9 May 2013. The facts were again rehearsed. That letter prompted a reply dated 16 May 2013.
14. This decision letter reiterated the core reason for refusal (viz that neither parent was British and that the expectation that at least one would be could not be disregarded). It explained that decisions were taken in accordance with the staff instructions. Applications not covered by those instructions were dealt with in accordance with established precedent, or in especially compelling circumstances a new precedent would be created. The author of the letter acknowledged that the refusal letter, written by a different person, "did not fully explain the rationale behind the decision" nor did it refer to section 55. Further reasons followed. In terms, she accepted that

"as set out in your representations, most of the usual expectations are met. However, the expectations relating to citizenship and immigration status of the parents as described in section 9.17.9–12 … are not."

The status of both the claimant's mother and father was then summarised. It was noted that his mother had no status and was seeking an EU residence card. She would acquire a conditional right to residence only when such a card was issued and gain an unqualified right to residence five years after obtaining that card. The author considered that having failed to satisfy the normal expectation relating to his parents' nationality the claimant did not fall within the exceptions given as examples in paragraph 9.17.11, nor could "a precedent" be found where a minor with similar circumstances had been registered. Consideration was then given to whether, exceptionally, he could be registered as a British citizen. The letter continued:

"However, his circumstances do not appear to be particularly exceptional, nor was it considered that registration would be in his best interests.

As your client has indefinite leave to enter, he is free to remain in the UK without restriction. Failure to register him as a British citizen has no adverse effect on his right to live and study in the UK and has no impact on his current day to day life. As such, we could see no grounds to support the view that it would be in his best interests to register your client exceptionally, outside the published policy as agreed by Parliament.

Accordingly, the application was considered in accordance with our duty under Section 55. Our duty requires the child's interests to be a primary, but not the only, consideration – and your client's interests and wishes have been taken into consideration when determining the outcome of the application."

15. The claimant's solicitors wrote again on 1 August focussing on the Defendant's approach to section 55. In particular they attacked the conclusion that the grant of British citizenship conferred no benefits upon the claimant and thus could not be said to be in his best interests. They pointed to the intangible benefits of British citizenship, including a sense of identity. They quoted from the defendant's own guide relating to the completion of the application form:

"… citizenship is a significant life event Apart from allowing a child to apply for a British Citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up."

The claimant's solicitors reiterated that the claimant's future ties remain in the United Kingdom and that it would be in his best interests to have British citizenship. Finally, they pointed out that were he 18 he would be able to register, subject to sitting the Life in the UK test.

16. This prompted the further decision letter dated 7 August 2013. It was written by a third official. The first three substantive paragraphs are identical to those found in the earlier letter of 16 May. This merely reflects that such letters are constructed around standard paragraphs available on the defendant's database by officials who are under a great deal of pressure. The letter confirmed that neither of the claimant's parents was British so he failed to meet a normal expectation before registration. The author continued:

"When considering the use of discretion in cases that do not meet the usual expectations of this provision, the overriding factor is whether the child's future is seen to lie in the United Kingdom. Your client is currently cared for by his mother and his father albeit resident overseas, has regular contact with him providing both emotional and financial support. Whilst I note your client's preference is to remain in the United Kingdom with his mother it is not unreasonable to conclude that given his mother's undetermined immigration status alongside the potential he could join his father in New Zealand, that he fails to meet the expectation that his future can clearly be seen to lie in the UK.

…

I can assure you that Section 55 is taken into consideration with every application received by the Home Office for persons under 18 years of age. The statutory duty under Section 55 of the 2009 Act requires the Home Secretary to put in place arrangements to make sure that those responsible for carrying out certain duties (including immigration and nationality functions) give due regard to the need to safeguard and promote the welfare of children in the UK …

I note your comments regarding the less tangible benefits of Citizenship, the impact on private life and certainty of identity and future. I should point out that identifying such interests does not lead inevitably to a decision conforming to those interests. Provided no other consideration is treated as essentially more significant than the child's best interests, it is possible for the strength of other considerations to outweigh them. The important thing is to consider the child's best interests first.

The best interests of the child, broadly means the well-being of the child. A consideration of where those best interests lie will involve asking whether it is reasonable to expect the child to live in another country.

Your client currently resides with his mother and she has responsibility for maintaining his welfare and his best interests lie with her. It is maintained that his current well being is not affected by his Nationality status, given his current right to remain in the UK indefinitely ensures that there are no adverse affects on his right to live and study in the UK. As there are no indications that his parents could not continue to ensure his health and wellbeing, irrespective of his lack of British Citizenship and where he resides, the Secretary of States obligations under Section 55 do not affect the decision made in this case.

…

Your client's best interests have been taken into account and it is concluded that they are seen to lie with his family but not to the detriment of current Nationality legislation."

Discussion and Conclusions

17. Miss Weston disavowed any suggestion that the staff instruction found in paragraph 9.17 was unlawful on its face as being inconsistent with section 55. She submits that there is a risk that anyone following the instruction will act unlawfully by ignoring the obligations imposed upon the Secretary of State by section 55 and through the statutory guidance upon officials. In support of the legal proposition that a policy which gives rise to a risk of illegality in its application is itself unlawful, Miss Weston referred in general terms to the decision of Wyn Williams J in R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin). Neither that case, nor the authorities cited by the judge support a submission of quite such broad reach. The two cases cited at paras 138 and 139 of the judgment, namely R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219 and R (Medical Justice) [2010] EWHC 1925 concerned policies which it was suggested were inherently unfair and thus gave rise to a "serious possibility" or "unacceptable risk" of unlawful decision making. In other words the policies themselves, it was said, herded the decision maker towards an unlawful decision. In the context of the policy he was considering, namely detention of families with children pending removal from the United Kingdom, Wyn Williams J adopted the same approach. He asked whether the policy itself gave rise to an unacceptable risk or serious possibility of decision making which ignores the interests of child family members when detention of an adult with children is authorised. In para 222 he described that as a "formidable hurdle". He rejected the argument that the policy in question could not operate in conformity with section 55 and then applying the same reasoning, rejected the "unacceptable risk" test.
18. There are cases in which a policy is challenged in abstract without reference to the facts of an individual case or cases. When an individual case is before the court it is more useful to consider the question of whether the policy operated unlawfully in the individual case. That said, I am confident that the staff instruction in play in this case is lawful. It operates by setting out a hierarchy of factors which places at its top the question of where the child's life will be made, something which engages his best interests. The factors relating to his parents' nationality and strength of ties to the United Kingdom further inform that question. None of the factors is determinative and, in any event, a failure to satisfy the usual expectations is subject to expressly consideration of the child's best interests: see 9.17.12. Section 55 does not itself require that a decision is made in accordance with the best interests of the child, rather that the decision maker have regard to his best interests, which may be outweighed by other factors. Additionally, the Statutory Guidance must be followed in tandem with the staff instruction. In this case the two letters setting out the substantive reasoning (albeit of two different officials not responsible for the underlying decision) explicitly stated that the duty under section 55 was recognised and applied.
19. The real question, in my judgment, is whether the decision is sustainable in public law terms having regard to the reasoning set out in the three letters including that relating to section 55 and the best interests of FI. I have come to the clear conclusion that the decision does not withstand scrutiny and must be quashed.
20. The exiguous reasoning in the decision letter of 20 February 2013 referred only to the claimant failing to satisfy the expectation relating to his parents' nationality and in general terms the conclusion that there were insufficient reasons to register his British citizenship exceptionally. Wrapped up within that statement must have been a conclusion that the decision maker was not satisfied that it was in the best interests of FI to be registered as a British citizen.
21. The reasoning was expanded upon in the letter of 16 May. Importantly, it was accepted explicitly by the writer of that letter that the usual expectations were met save for the status of FI's parents. It was therefore accepted that FI's future was in the United Kingdom. If there were any doubt about it before the original decision had been made the decision maker would have been expected to have written for further information in accordance with paragraph 9.17.3 of the staff instruction. The problem, as explained in that letter, was that there was insufficient in the claimant's case exceptionally to register him as a British citizen given his parents' situation. FI's wishes were taken into account but the conclusion was that refusing registration would have no adverse effects upon him. His best interests would not be advanced by registration. The section 55 duty had been taken into account but the decision had no impact on his best interests. In my judgment that amounts to a misdirection and thus a failure properly to have regard to the best interests of FI.
22. Whilst I accept entirely that the impact of the decision refusing to register FI as a British citizen is marginal in practical terms (and thus to be contrasted with what confronted the children in ZH (Tanzania)), it is wrong to treat the decision as having no impact on his best interests. Citizenship will often be applied for by individuals, whether minors or adults, who are settled in the United Kingdom with indefinite leave to remain. On registration their lives may carry on substantially as before. Yet there are undoubtedly benefits of British citizenship (beyond the prosaic liberation from visa requirements on travelling to Europe and some other destinations). It is unnecessary to appeal to judicial observations on this matter, valuable though they may be, because the Secretary of State captured its essence in her own guide, quoted in paragraph 15 above. FI's teacher also found its essence in her support for registration when she said that he would be more settled were he to become a British citizen.
23. This error was not cured (even if it could have been) by the subsequent exposition of reasoning found in the letter of 7 August. Rather, further failings emerged. The author of that letter suggested, contrary to the earlier explicit acceptance, that FI's future was not clearly to be seen in the United Kingdom. Such a conclusion was not open to the decision maker on the evidence provided by the claimant. There is no question of his going to New Zealand to live with his father. The reasoning in the letter proceeds upon the assumption that because FI's mother's status is uncertain he might be forced to move to New Zealand or with her to Bolivia (despite his having indefinite leave to remain).
24. I have already observed that no inquiries were made of the claimant's solicitors of what might happen were the underlying assumption to come to pass, namely that FI's mother was removed from the United Kingdom before he reached the age of 18. Given this family's circumstances and the unwavering desire for FI to be educated in the United Kingdom, coupled with the indications of some affluence in his father (if not his mother), it is not idle to speculate that arrangements would be made for his education to continue even if he went "home" in school holidays, wherever home might turn out to be. As it happens, FI's mother was not the subject of enforcement action when her application failed on technical grounds.
25. The reality, however, is that there was not, and is not, anything other than a fanciful risk of FI's mother being forced to leave the United Kingdom. She made her application based upon her partner's Spanish nationality. Such an application, based as it is on Treaty Rights, is not subject to a fee. FI's mother could have applied for leave to remain on the basis that she is the mother of a child with indefinite leave to remain, but that is subject to a substantial fee. On instructions Miss Weston explained that the choice was made because of the contrasting position regarding fees. FI's mother has since made the application based upon FI's status. The application is governed by Appendix FM to the Immigration Rules. There are various hurdles which she must overcome. Refusal is not impossible, albeit unlikely. But were those dealing with FI's application to stand back and ask themselves the question whether there was any realistic possibility of his mother being removed to Bolivia in the foreseeable future, the answer would be "no".
26. The letter of 7 August proceeded upon the same fundamental misconception as had the earlier letter. It maintained that the best interests of FI were not affected by the grant of British citizenship. Furthermore, the reference to whether it would be reasonable for FI to live elsewhere (perhaps introduced through use of a standard paragraph from a letter dealing with article 8 ECHR) is difficult to fathom, since the decision in question will have no bearing upon where FI lives. So too is the observation that the claimant's best interests lie with his family.
27. The result of the failings identified is that the decision refusing the claimant's application for registration as a British citizen will be quashed and remitted for reconsideration.