QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| POLOKO HIRI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Colin Thomann (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 7th February 2014
Crown Copyright ©
Mrs Justice Lang:
"If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
"Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them."
"2. Aspects of the requirement
2.1 Caseworkers should not normally consider applicants to be of good character if, for example, there is information to suggest:
a. They have not respected, and/ or are not prepared to abide by the law (e.g. they have been convicted of a crime or there are reasonable grounds to suspect (i.e. it is more likely than not) they have been involved in a crime) (see sections 3 and 4);
"3. Criminal activity
3.1 The Rehabilitation of Offenders Act 1974
3.1.1 In assessing the impact of previous convictions on the assessment of good character, caseworkers must have regard to the provisions of the Rehabilitation of Offenders Act 1974 ('the 1974 Act'). Under the 1974 Act a conviction becomes "spent" after a specified rehabilitation period, which will vary depending on the sentence imposed. Spent convictions should not be taken into account in assessing the character requirement…
3.1.2 Caseworkers should normally refuse an individual who has an unspent conviction, however there is discretion to overlook some minor one-off offences. Please see criteria in paragraphs 3.2.2 – 3.2.4 for further details.
3.1.3 Caseworkers should further note that where an individual has a conviction that can never become spent they will not normally be granted British citizenship; unless there are exceptional circumstances. Sentences that cannot become rehabilitated include:
(a) Imprisonment .. for life; or
(b) Imprisonment … for a term exceeding 30 months; or
(c) Preventive detention; or
(d) Detention during her Majesty's pleasure; or
(e) Imprisonment or detention for public protection … or an extended sentence under ... the Criminal Justice Act 2003."
"3.2 Convictions – general
3.2.1 All convictions should normally be spent under the 1974 Act before an application ... is approved…
3.2.2 Where the applicant is of good character in all other respects caseworkers should normally be prepared to overlook a single minor unspent conviction resulting in:
a. A bind-over order
b. An absolute or conditional discharge
d. A relatively small fine or compensation order
e. A fixed penalty notice and Scottish fiscal fines – these fines are not classed as convictions and as such do not attract a spent period (see paragraph 3.2.3).
3.2.3 Caseworkers should note that if a fixed penalty notice or fiscal fine has been referred to a court due to the non-payment of the fine or if the notice has been challenged by the applicant and subsequently upheld by the court then this is treated as a conviction for the purposes of the 1974 Act … and will attract a "spent" period…
3.2.4 In determining whether an applicant meets the "good character" requirement, caseworkers should not normally take into account fixed penalty notices, unless the applicant has received more than one fixed penalty notice in the last 12 months, and this would suggest a pattern of offending. If an application is refused on this basis, the applicant should be advised that he or she can reapply at a time when he or she does not have more than one fixed penalty notice in the twelve month period before making an application.
3.2.5 Caseworkers should not normally disregard any unspent conviction that falls into the following categories irrespective of the severity of the sentence imposed:
a. Offences involving dishonesty (e.g. theft, fraud)
b. Offences involving violence
c. Offence involving unlawful sexual activity
d. Offences involving drugs
e. Offences which would constitute "recklessness" – e.g. drink-driving, excessive speeding, driving without tax/ insurance or whilst using a mobile phone. (NB Caseworkers should remember that fixed penalty notices do not constitute offences – see 3.2.2.e above).
f. Offences involving a serious deliberate criminal act that do not fit into points a) to d) above e.g. arson.
3.2.6 Where, exceptionally, it is proposed to grant citizenship to a person whose conviction resulted in a custodial sentence of 30 months or more (and which, therefore, can never become spent under the 1974 Act) prior approval should be sought from the Chief Executive or from a Board member acting in her absence."
i) The Defendant's conclusion that she was not satisfied that the Claimant met the requirement of 'good character' was irrational.
ii) The Defendant failed to have proper regard to all the factors which were material to an assessment of his character. She had unlawfully fettered her discretion by applying her policy of refusing applications from applicants with unspent convictions for "excessive speeding" inflexibly, without properly exercising her statutory duty to assess his character as a whole. In particular, she failed to weigh in the balance, against the conviction, the powerful countervailing evidence of his excellent character. In assessing his character, she also erred in refusing to take into account either the circumstances of his offence or the severity of the penalty imposed by the court.
iii) Although the Instructions referred to the discretion to "overlook" or "disregard" unspent convictions, the proper approach was to take all matters into account, both favourable and unfavourable, to assess whether he met the "good character" requirement.
iv) The decision letters indicated that a test of exceptionality was applied, yet under the terms of the Defendant's Instructions, a test of exceptionality was only applicable to serious offences which could never become spent under the Rehabilitation of Offenders Act 1974 and registered sex offenders.
i) Her conclusion was rational and reasonable, and one which she was entitled to reach in the exercise of the broad statutory discretion conferred upon her. The authorities cited confirmed that she was entitled to adopt a high standard provided that it was reasonable in the circumstances. Moreover, the Claimant was free to re-apply once his conviction was spent, five years after the date of conviction. New Instructions had now been issued, with effect from 13th December 2012, which would operate more favourably in the Claimant's case, as applications would normally be refused only if a conviction resulting in a non-custodial sentence occurred in the last three years, not five years as previously.
ii) The Defendant was entitled to apply a policy (the Instructions), in the interests of consistency and fairness. The policy had been correctly applied on the facts of this case.
iii) The Defendant did not fetter her discretion unlawfully nor apply the policy inflexibly. In particular, she took into account the evidence of the Claimant's good character. It was reasonable for her not to consider the circumstances of individual offences, and it was reasonable for her to rely solely upon the conviction and sentence imposed by the court.
iv) The Instructions to officers that they could "overlook" or "disregard" unspent convictions in certain circumstances did not mean that they would be left out of account.
v) Use of the word "normally" in the Instructions denoted that officers could depart from the Instructions in appropriate cases. It was permissible to describe any such departure as an exception to the general rule (see MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192, per the Master of the Rolls at )). The Claimant overstated the significance of the references to exceptionality in the Instructions; these did not purport to lay down a different rule in those categories of convictions.
"41. In R v. Secretary of State for the Home Department, ex parte Fayed  1 WLR 763, 773F–G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances."
"40. It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances."
"The test for irrationality is set high, namely, that no rational decision-maker could have reached this conclusion. This test is especially difficult to satisfy in an area where Parliament has conferred a broad discretion on the Secretary of State and the Court of Appeal has declared that "it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances" (per Nourse LJ in ex p. AL Fayed (No. 2))."
"When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.
These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd  1 KB 176; British Oxygen Co. Ltd. v Board of Trade  AC 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp 506 et seq., paras 11-004 et seq."
"A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week's dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule … then there is no discretion and no judgment to be exercised."
"The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law) may be balanced by another equally legitimate public law value, namely, that of responsiveness. While allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case."
"In certain circumstances we would disregard an unspent conviction. Our policy in this regard is published on our website …. It is highly unlikely that we would disregard an unspent conviction outside this policy.
You were convicted on 17 November 2011 for a motoring offence for which you received a £100 fine. This will not be spent under the Rehabilitation of Offenders Act 1974 until 17 November 2016 As your conviction is not one that we would normally disregard, nor can we find grounds to disregard it exceptionally outside our published policy, we cannot be satisfied that the good character requirement is met. The application had therefore been refused.
It is open to you to re-apply for citizenship at any time but an application made while you have an unspent conviction is unlikely to succeed."
"…We do not examine the circumstances surrounding the conviction(s) nor any mitigating circumstances put forward at the time of conviction as this will have been considered by the court prior to sentence.
We would not normally naturalise a person with an unspent conviction unless it is a 'one-off' minor offence, e.g. contravention of a motoring regulation, and we would not normally overlook an unspent conviction in any circumstances if it falls into one of the following categories, none of which we consider to be minor:
a. Offences involving dishonesty (e.g. theft, fraud)
b. Offences involving violence
c. Offence involving unlawful sexual activity
d. Offences involving drugs
e. Offences which would constitute "recklessness" – e.g. drink-driving, excessive speeding, driving without tax/ insurance or whilst using a mobile phone.
f. Offences involving a serious deliberate criminal act that do
not fit into points a) to d) above e.g. arson.
You were convicted on 17 November 2011 for speeding and fined £100 and 5 penalty points. We do not consider this offence to be minor and could find no grounds to disregard it exceptionally outside our normal policy. As we could not be satisfied the good character requirement for naturalisation was met, his [sic] application was refused.
…A fresh application made before 17 November 2016, i.e. the date on which your conviction becomes spent, is unlikely to be successful."
" I am writing to you on behalf of Sapper Poloko Hiri who is a serving soldier under my command in 73 Armoured Engineer Squadron, 21 Engineer Regiment. Sapper Hiri joined the Army in August 2008 and has served as a Military Draughtsman and Combat Engineer since completing his training. He has been employed within 73 Armoured Engineer Squadron since March 2011. He has decided to leave the Army in order to attend a university course …a decision I fully support.
Sapper Hiri is an intelligent, motivated and hard working soldier. Sapper Hiri has an EXEMPLARY record of conduct since he has been employed within the Armed Forces. His character has been put to the test on various military training exercises where his peers have had to depend on him in austere and challenging environments. To see that Sapper Hiri has been denied British citizenship for what is deemed as 'bad character' directly contradicts his performance as a serving soldier. I have spoken to him about his speeding fine and he regrets his actions and has paid his fine. However, it appears that one moment's act of misjudgement has defined and tarnished his otherwise good character. The offence was a foolish mistake but it is not a reflection of his character from my experience as his Officer Commanding.
Not only has Sapper Hiri served in the British Army for 4 years, there is also a genuine concern that Batswana soldiers serving in foreign armies are being prosecuted by their governments when returning home to Botswana. Please find attached a copy of an email from Directorate of Manning (Army) Land Forces Head Quarters with a further attached document entitled 'Enforcement of the Foreign Enlistment Act by the Government of Botwana', highlighting the Army's concerns on the matter. "
"I cannot emphasise how unique it is for a Veteran to have left service without receiving a single charge. Soldiers frequently get into trouble and are disciplined; it is what they do. However, Poloko served without any blemish whatsoever. If Poloko were good enough to carry a weapon for this country, then surely he is good enough to be a citizen."
I consider that these points in the Claimant's favour would have been fairly obvious to any reader of Major Plimmer's letter.
"Your client was driving at 81 mph in a 50 mph zone – over 60% faster than the speed limit in force at that time and in excess of the maximum UK speed limit of 70 mph. Whilst no legal definition of "excessive speeding" may exist, the Secretary of State is of the opinion that exceeding the speed limit to this extent constitutes excessive speeding and as such, would not normally disregard an unspent conviction resulting from this offence having been committed."
"Furthermore, the fact that the applicant has served in the armed forces for four years does not alter the fact that he is required to meet the good character requirement for naturalisation in the same manner as those received from civilians.
Since the established policy does not cover your client's particular circumstances, I have looked for a precedent where we have naturalised an applicant who has an unspent speeding conviction where the speed was considered excessive. As there are no existing precedents that match his circumstances, I have considered whether they are sufficiently different from other applicants who have unspent speeding convictions to justify your client's naturalisation. I can see no grounds which might support the view that the circumstances of your client's conviction are sufficiently different to those where applications are routinely refused to warrant applying discretion exceptionally in the face of established policy.
Having fully reviewed the case, I disagree that the decision to refuse was irrational, disproportionate and unreasonable. As detailed above, the decision was taken fully in accordance with nationality law and published policy, and as such, there are no grounds to reopen the case and naturalise your client as a British citizen."
" The current policy is to disregard a single conviction for a minor offence that results in a relatively small fine. Although it was difficult to assess whether this could be regarded as a "relatively small fine", consideration was given to the fact that courts are encouraged to relate fines to offender's means. The applicant's honesty in notifying us of his conviction was also taken into account."