England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 February 2017

1. MR JUSTICE JAY: This is an application for judicial review brought with the permission of the Deputy High Court Judge against the defendant's decision given on 17 December 2015 refusing the claimant's application for naturalisation as a British citizen.
2. The claimant was born in Jamaica on 30 July 1974. I asked Mr Ishmael Kumi to fill me in with details as to her family in the United Kingdom or elsewhere and he told me that this woman has three children; the youngest is 2 and a half, the oldest is 19, but he has no instructions as to the age of the intermediate child.
3. In December 1999, she came into this country as a visitor. Her leave was extended until 18 January 2002, after which time she overstayed. On 14 August 2008, she applied for indefinite leave to remain, ILR, under the defendant's discretionary policy and it was granted on 27 January 2010.
4. On 26 June 2014, the claimant made an application for naturalisation as a British citizen under section 6(1) of the British Nationality Act 1981. This was refused, first of all on 3 March 2005.
5. The material part of the defendant's decision letter stated:

i. "It has come to our attention whilst you had no valid leave from 31 January 2001, until you were granted indefinite leave to remain on 27 January 2010, that you had been working without permission in the United Kingdom. Therefore, as you have not been compliant with UK immigration laws your application has been refused."

6. I asked Mr Kumi to fill me in with further details as to his client's unlawful working in the United Kingdom and he told me that she worked on a casual basis, hairdressing and the like.
7. On 11 March 2015, the claimant's solicitors submitted written representations against the refusal. The essential point taken was that the defendant's refusal of the claimant's Section 6(1) application was inconsistent with the grant of the claimant's ILR application.
8. On 10 November 2015, the defendant declined to reconsider her decision. Then on 23 November 2015, the claimant's representatives wrote a pre-action protocol letter to the defendant. The target of that letter was the defendant's decision dated 10 November 2015.
9. On 17 December 2015, the defendant wrote two letters to the claimant's solicitors. In the first, she said that:

i. "Having considered the representations that had been presented and taking into account the specific facts of your client's case, it has been decided that we will aim to reconsider the decision within 1 month."

10. In fact, on the self-same day, the defendant gave a substantive response which stated that:

i. "This letter is supplemental to, and should be read in conjunction with, the original decision of 3 March 2015."

11. In my view, no point arises (and none was taken) as to the temporal proximity between the two letters.
12. The second letter of 17 December 2015 dealt in more detail with the defendant's policy; namely, her nationality instructions relating to the issue of good character, (see chapter 19, annexe D, paragraph 9.7C).
13. This policy has effect from 11 December 2014, and states (and I paraphrase) that the decision maker will normally refuse an application if within the preceding 10 years, the applicant has not been compliant with immigration requirements, including "being detected working in the UK without permission".
14. In the decision letter of 17 December 2015, the point was reiterated that the claimant had been working for many years, in the region of one decade, in breach of immigration laws and that no explanation or reasons have been advanced.
15. The letter said at the very end:

i. "If your client still wishes to become a British citizen a fresh application for naturalisation will need to be made. A fresh application made before 27 January 2020 is unlikely to be successful. However, I also note from our records your client was released from prison on 27 October 2015."

16. The claim form was issued on 16 February 2016. Its sole target is the decision given on 17 December 2015, although reference is made in the statement of facts and grounds to the earlier decision.
17. The points advanced in the grounds and Mr Kumi's skeleton argument seem to be me to be threefold.
18. First, it is complained that 17 December letter wrongly asserts that the claimant has been imprisoned. She has not been and this was wrongly taken into account.
19. Secondly, it is said that the defendant failed properly to investigate the claimant's good character (see, for example, Poloko Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin).
20. Thirdly, the point is made that the defendant has maintained inconsistent positions as regards the BNA application on the one hand and the ILR application on the other.
21. In oral argument, Mr Kumi emphasised that the new nationality policy came into effect on 11 December 2014, and effected relevant changes to the old policy. He submitted that although this was not an exceptional case there should be proper exercise of discretion and, in the circumstances of the instant case, there was not.
22. When pressed by me Mr Kumi accepted that this was a Wednesbury case and it was his position that the decision maker had placed "too much weight" on the antecedent unlawful employment.
23. Mr Kumi also took me to the relevant provisions of the now defunct policy DP5 of 96. At the material time, namely 2010, some modifications had been made to that policy: see the policy statement of the (then) responsible minister, Mr O'Brien given on 24 February 1999.
24. This referred to circumstances where claimants for ILR had "a particularly poor immigration history". That had to be weighed against any children in the United Kingdom.
25. Ms Lean's submissions were to this effect that an application for naturalisation is a privilege and not a right; that the burden is on an applicant to show good character and not on the Secretary of State to disprove it; that the threshold is a high one; that the Secretary of State is entitled to have a policy; that no attack has in fact been made to the Secretary of State's policy; and that it cannot be said in all the circumstances of this case that the decision made was Wednesbury unreasonable, particularly when no exculpatory reasons or mitigation were put before the Secretary of State to deal with the question of the unlawful employment.
26. In granting permission for the claimant to proceed with this application the deputy judge did not specify her basis for concluding that arguable points arise. It is not possible therefore to draw any inferences as to which points may have impressed the Deputy Judge and therefore I have to deal with all three grounds in an equivalent manner.
27. It is not in dispute that the claimant worked in this country for 9 years before she was granted ILR. The 3 March 2015 letter states that the claimant's leave expired on 31 January 2001. In fact, it expired on 18 January 2002 because the application, made within time, served to extend the claimant's leave but in my judgment nothing turns on that. She was working in breach of the immigration laws for 9 years.
28. The effect of Section 9.7 of the defendant's instructions in nationality cases is that the claimant's application should be refused, as it was, unless there were exceptional circumstances. As I have already indicated it was not suggested that there were exceptional circumstances in this case and none has been put forward.
29. I accept Mr Kumi's submission that in principle the Secretary of State should look beyond the bare fact of unlawful working and consider whether there are any extenuating circumstances.
30. The difficulty here, again, is that none was put forward. The claimant has not sought to explain how and why she worked in breach of the immigration laws. Her position is the more straightforward one that the Secretary of State is not entitled to take inconsistent positions.
31. But my view, in the event looking at the point more broadly, is that the claimant was working in breach of the immigration laws, not on a haphazard or limited basis but for very many years indeed.
32. In the absence of any mitigation, in the absence of any extenuating circumstances, it was not Wednesbury unreasonable in my judgment for the Secretary of State to have reached the conclusion that the claimant had not demonstrated that she had good character. This is a requirement under the British Nationality Act which was incumbent on the claimant to discharge. Without it being discharged the Secretary of State simply could not accede to the application.
33. Furthermore, in my judgment the defendant has not taken inconsistent positions. Under the defendant's then current discretionary policy for ILR, it is true that the interests of children had to be given particular weight. But, it could not be said that the claimant's immigration history was "particularly poor" and I do not draw the inference that the Secretary of State either formed that view or should have formed that view.
34. In my judgment, the Secretary of State was not somehow estopped by her grant of ILR under a different policy. The analysis I have to say would be the same, whether the defendant's approach to DP5/96, which of course does not apply to BNA cases, was mainstream, on the one hand, or overly generous on the other.
35. If it were overly generous and the Secretary of State should not have granted ILR that is not something which the claimant could properly pray in aid to justify the grant of nationality to her under section 6.
36. The final point concerns the unfortunate mistake in the Secretary of State's decision letter. To be clear, the claimant has not been subject to any period of imprisonment. This error should now be formally corrected and an apology written to the claimant.
37. But the question for this court is whether the defendant's decision dated 17 December 2015, being the only decision under challenge as well as being a reconsideration of her previous decision is flawed or vitiated by that error.
38. On analysis, the defendant's second letter of 17 December 2015 has two separate planks. The first plank, repeating what was said in March, was that the claimant's employment in breach of the rules disqualifies her from the discretionary benefits of section 6(1) of the BNA.
39. The second plank was that, in any event, the claimant was of bad character because she had been imprisoned. Given that the defendant had been able to reach the same conclusion in March 2015, without reference to any sentence of imprisonment, and having regard to the structure and terms of the letter under challenge, I consider that it is inevitable (and that is the right test) that the defendant would have reached exactly the same decision had this unfortunate error never been made.
40. I do have some sympathy for this claimant. She is obviously a hard working woman who has bought up her family in the United Kingdom and I draw the inference without any material blemish. However, that is not the point, unfortunately, for her purposes.
41. She has not been able to demonstrate to the Secretary of State's satisfaction given her employment history in breach of the immigration laws that she is a woman of good character.
42. It remains open to her, as the Secretary of State has indicated, to bring a further application under the British Nationality Act in the year 2020. The Secretary of State has not promised that this application will be favourably considered. The position remains exactly the same, however more time will have elapsed.
43. The claimant would be well advised in relation to her subsequent application to put forward better evidence as to her good character; positive evidence from those within her community as to her credentials; evidence from her church or from people who are in a position to attest to her bona fides/credibility/reliability and good character; and an explanation as to why she acted as she did between the years approximately 2001 to 2010. Equipped with that evidence, the Secretary of State would be in a much better position to consider the merits of this application favourably.
44. But for all these reasons, including the further advice I am giving to the claimant, this application must be refused.
45. MS LEAN: I am grateful, my Lord. There is an application for the Secretary of State's costs.
46. MR JUSTICE JAY: Yes.
47. MS LEAN: I think the schedule should have been sent across but I am not sure if it will have reached you, so if I might hand up another schedule. (Handed)
48. MR JUSTICE JAY: All right. Thank you very much.
49. MS LEAN: My Lord, the headline figure is the Secretary of State seeks fees in the sum of £1,961.
50. MR JUSTICE JAY: All right. I see your fee is £600. Are you going to get £600, given that we have been so economical with the time in the light of the submissions?
51. MS LEAN: My Lord, I think that was based on a skeleton, half day hearing and preparation, so --
52. MR JUSTICE JAY: What will your clerk have to put in? You are obviously "panel" but which panel are you on/
53. MS LEAN: At B, so £100 pounds an hour.
54. MR JUSTICE JAY: How long did it take you to do the skeleton?
55. MS LEAN: The skeleton and prep were 3 hours.
56. MR JUSTICE JAY: So that is £300 and in all conscience, your clerk will put in what for the hearing?
57. MS LEAN: I imagine 10.30 to 1.00, so two and a half hours.
58. MR JUSTICE JAY: It includes waiting time, does it?
59. MS LEAN: I would ordinarily put down the time when I attended at court to when I was released from court.
60. MR JUSTICE JAY: All right, what do you say, Mr Kumi?
61. MR KUMI: On the face of the writ, it seems reasonable, except that the claimant in this matter is a person of very, very limited means and she would have to apply for exemption to file the relevant documents in this case.
62. MR JUSTICE JAY: Yes.
63. MR KUMI: I do appreciate that the winning party of course is entitled to his or her costs. However, the series of skeleton arguments in this case is summary defence, it did not have to be done twice and also the imputation of bad character, the imprisonment and so on, rather lengthened these proceedings.
64. MR JUSTICE JAY: I am not sure they did but, look, I am taking a global view. I am going to allow the sum of £1,750, which is a bit off for counsel and a bit off all round in relation to the fees of the Government Legal Department. In non-taxation it would come out at about that.
65. MR KUMI: Will that be not to be enforced without leave?
66. MR JUSTICE JAY: No.
67. MR KUMI: No.
68. MR JUSTICE JAY: Because you do not have a benefit of a certificate under the Legal Aid Powers of Sentencing Act LASPO 2012, do you/
69. MR KUMI: No, we do not.
70. MR JUSTICE JAY: No. It would be up to the Secretary of State whether she wishes to occupy her time in trying to enforce the order but that is not my business. She is entitled to the order. Whether she enforces it, whether she thinks it would be more expensive even try to is for the Secretary of State.
71. Thank you very much. Any other applications?
72. MR KUMI: No.
73. MR JUSTICE JAY: Thank you very much. I will rise.