QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
(deceased, substituted by MARESHA HOWARD ROSE pursuant to CPR 19.2(4) and PD19A)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
SIR JAMES EADIE QC & DAVID BLUNDELL QC (instructed by Government Legal Department) for the Defendant
Hearing dates: 10 and 17 December 2020
Crown Copyright ©
MR. JUSTICE SWIFT
" shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as maybe otherwise lawfully imposed on any person."
Persons without the right of abode are allowed to "live, work and settle in the United Kingdom" only with permission and always subject to regulation and control imposed under 1971 Act. Two further parts of section 1 of the 1971 Act are material. Section 1(2) refers to indefinite leave to remain stating
"(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)."
Section 1(5) (in force until repealed by the Immigration Act 1988) required rules to be made specifically for Commonwealth citizens
"(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed."
Thus, although Mr Howard did not have a right of abode in the United Kingdom he had a right to remain in the United Kingdom.
"As we have not received this evidence from you, your client's application has been considered on the evidence provided with the original application.
Your client is unable to demonstrate that they have been continuously resident in the UK, since being granted settled status and as a result, the Secretary of State is not satisfied that your client is entitled to NTL endorsement and therefore their application has been refused.
As fully explained on page 2 of the guidance notes for the NTL form your client's application fee has been retained by UKVI as we do not refund the fee paid for a refused NTL application.
Your client should note that a fresh application can be made at any time but an application received without the above evidence is unlikely to be successful."
"You have been convicted of a number of criminal offences. In particular, on June 2018 East London Magistrates Court you were convicted of common assault for which you received a 12-month suspended sentence.
Citizenship would not normally be granted where an individual had received non-custodial sentence or other out of court disposal which is recorded on their criminal record in their last three years.
We would normally only exercise discretion in exceptional circumstance where there was strong positive evidence of good character which would outweigh criminal convictions, and the person had not been convicted of an offence in the last 12 months. We have reviewed your application and no evidence has been submitted in support of your good character. We do not consider there to be any such exceptional circumstances in your case, and because of the seriousness of the offences, discretion has not been exercised.
In light of your criminal conviction, an application for citizenship made before 15 June 2021 is unlikely to succeed. It is open to you to re-apply for citizenship for free under the Windrush Scheme at any time, but before you submit a further application you should ensure that you meet all of their requirements."
The letter did make clear that this decision did not affect the grant of indefinite leave to remain in the United Kingdom.
"In your MP's email of 27 November 2018, Diane Abbott made representations that you were "taken aback" by the Windrush Task Force decision to refuse your naturalisation because of the rhetoric used by the Home Secretary and the members of the Government referring to the Windrush generation as "British Citizens". She went on to express your concern that if the Windrush generation are British citizens, you were British at the point you committed the crimes referred to in your response and citizenship would not normally be revoked on these grounds. Furthermore, you instructed your MP you are a reformed character.
I have looked at this carefully, however, this does not change the original decision because.
- Although you have objected to your disqualification from British citizenship for three years due to your conviction on 15 June 2018 for common assault, and the accompanying 12 months suspended sentence, it is highlighted that you were still convicted of the offence detailed above. Published Home Office guidance (Annex D, Chapter 18) explains that those convicted and given a non-custodial sentence of 12 months (in your case suspended, however, that makes no difference) will not be considered as rehabilitated for three years and that they will, therefore, not usually be granted British citizenship. It is open to you to reapply for British citizenship when that period of rehabilitation has expired on 15 June 2021
- It was outlined in the refusal letter that discretion can be exercised in relation to the good character requirement in exceptional circumstances, where evidence demonstrates that strong positive evidence of good character outweighs any criminal convictions and where there have been no further criminal convictions in the last year. It is the case that your conviction was in June of this year which means you cannot be considered for discretion as this is too recent. Furthermore, although you have stated that you are a reformed character you have not supplied any strong positive evidence of this which could be considered exceptional or sufficient to deviate from the published guidance. It is open to you to reapply for British Citizenship when that period of rehabilitation has expired.
- Your belief that, at the point of committing your crime, you were British because of the referral to Windrush citizens as having such status, and that in those circumstance this would not normally be deprived is mistaken. British citizenship cannot be applied retrospectively, and you had not applied for this status prior to your conviction."
"It was detailed in the decision of 5 November 2018 that you do not meet the requirements for naturalisation as a British Citizen as you do not meet the good character requirement. This is because you have been convicted of a number of criminal offences, and in particular because you were convicted on 15 June 2018 at East London Magistrates Court of common assault. You received a 12-month prison sentence that was wholly suspended for 12 months. Your previous criminal convictions include:
- Three convictions for burglary and theft between 23 April 1974 and 14 September 1977 which resulted in Probation Orders being issued against you.
- Three convictions of possession of class B drug between 9 October 1984 and 5 December 1988 which resulted in fines being issued against you.
- A conviction for using threatening, abuse and insulting language on 2 May 2000 which resulted in a Probation Order being issued against you.
I am satisfied that this decision was made correctly. The Home Office policy guidance document at the time of the decision dated 5 November 2018, Nationality Policy: Good Character Requirement, published on 23 April 2018, detailed how Home Office staff should apply the Good Character requirement to naturalisation applications. The document detailed that having a criminal record does not necessarily mean that an application will be refused. However, a person who has not shown respect for or is not prepared to abide by the law, is unlikely to be considered of good character. The document further details that a suspended prison sentence must be treated as a non-custodial sentence.
As detailed in the letter dated 3 November 2018, Citizenship would not normally be granted where an individual has received a non-custodial sentence or other out of court disposal which is recorded on their criminal record in the last three years.
I have carefully considered whether it is appropriate to exercise discretion in your case. Discretion would normally be only exercised in exceptional circumstances where there are strong factors which suggest the person is of good character in all other regards so the decision to refuse would be disproportionate. I have taken in account and attach significant weight to the fact that you came to the UK in 1960 when you are 3 years old have lived here for around 59 years. You have always lived in the UK lawfully and entitled to remain here pursuant to your indefinite leave to remain. I also note you have previously attempted to obtain confirmation of your indefinite leave to remain and have faced difficulties because of the uncertainty as to the evidence of your immigration status. However, despite all these matters, I have come to the conclusion that your application for British citizenship should be refused on account of your criminal record. I do not consider that there are sufficient mitigating circumstances which means it would be appropriate to exercise discretion and grant you citizenship. I appreciate that you may have faced significant difficulties during the time when you were seeking to evidence to entitlement to indefinite leave to remain in the UK. In this respect, I have carefully considered your experiences that were reported and are quoted at paragraphs 5.1.36 to 38 of the letter written on your behalf by your solicitors on 25 February 2019. Your disappointment is understandable. However, in all the circumstances, those matters do not justify an exercise of discretion in your favour.
I understand your concern that you considered yourself to be British at the point at which you committed the crimes referred above and British citizenship would not normally be revoked on these grounds. However, although you had indefinite leave to remain when you committed these crimes and were lawfully residing in the UK you were not a British citizen. British citizenship cannot be applied or granted retrospectively. Although your belief and concern is understandable, it is not a sufficient reason to exercise discretion in your favour and disregard your criminal convictions for the purpose of granting citizenship.
The decision to refuse citizenship is based on the consideration of your criminal convictions. There is no other adverse reason. You are not being treated differently from any other person who is in your position and who has similar criminal convictions. In making this decision, I have not had regard to your race or current citizenship. Those matters are to no relevance to my assessment. It is not discriminatory to refuse you citizenship because of your criminal convictions.
I recognise the need to have due regard to the elimination of discrimination, harassment, victimisation and any other prohibited conduct. I also take account of the need to advance equality of opportunity between persons that share a relevant protected characteristic and persons who do not share it and foster good relationship between such persons. However, despite having due regards to these matters, for the reasons given in this letter, the refusal of your citizenship application on the grounds of your criminal convictions is justified, appropriate and proportionate. Looking at everything at in the round this is not case where criminal convictions should be disregarded in the exercise of discretion.
I have also considered your right to have respect for your private and family life under Article 8 of the ECHR. As noted above, you have indefinite leave to remain in the UK and are entitled to reside and work here without any restrictions. The refusal of your citizenship application does not engage Article 8(1) of the ECHR. In any event, for the reasons given above, even if Article 8(1) is engaged, the refusal of your application on the ground of your criminal conviction is justified and proportionate under Article 8(2) of the ECHR.
As detailed in the letter dated 3 November 2018, in light of your criminal convictions, an application your citizenship made before 15 June 2021 is unlikely to succeed. It is open to you to reapply after that date.
I have reviewed the decision made on your case, and I am satisfied that your case has been considered correctly."
"From the late 1940s to the early 1970s, many people came to this country from around the Commonwealth to make their lives here and to rebuild Britain after the war. All members will have seen the recent heart-breaking stories of individuals who have been in the country for decades struggling to navigate an immigration system in a way that they should never, ever have had to.
These people worked here for decades. In many cases, they helped establish the national health service. They paid their taxes and enriched our culture. They are British in all but legal status, and this should never have been allowed to happen.
Since 1973, many of the Windrush generation would have obtained documentation confirming their status or would have applied for citizenship and then a British passport.
From the 1980s, successive Governments have introduced measures to combat illegal immigration.
But steps intended to combat illegal migration have had an unintended, and sometimes devastating, impact on people from the Windrush generation, who are here legally, but who have struggled to get the documentation to prove their status. This is a failure by successive Governments to ensure these individuals have the documentation they need.
This is why we must urgently put it right, because it is abundantly clear that everyone considers people who came in the Windrush generation to be British, but under the current rules this is not the case. Some people will still just have indefinite leave to remain, which means they cannot leave the UK for more than two years and are not eligible for a British passport. That is the main reason we have seen the distressing stories of people leaving the UK more than a decade ago and not being able to re-enter.
I want the Windrush generation to acquire the status they deserve British citizenship quickly, and at no cost and with proactive assistance through the process. First, I will waive the citizenship fee for anyone in the Windrush generation who wishes to apply for citizenship. This applies to those who have no current documentation, and also to those who have it. Secondly, I will waive the requirement to carry out a knowledge of language and life in the UK test.
Thirdly, the children of the Windrush generation who are in the UK are in most cases British citizens. However, where that is not the case and they need to apply for naturalisation, I shall waive the fee. Fourthly, I will ensure that those who made their lives here but have now retired to their country of origin can come back to the UK. Again, I will waive the cost of any fees associated with the process and will work with our embassies and High Commissions to make sure such people can easily access this offer. In effect, that means anyone from the Windrush generation who now wants to become a British citizen will be able to do so, and that builds on the steps that I have already taken.
We were too slow to realise that there was a group of people that needed to be treated differently, and the system was too bureaucratic when these people were in touch. "
(1) The Convention rights discrimination claim
(2) The common law challenge
"10. We assume that you will still want to maintain some elements of this it could be presentationally difficult to offer free citizenship to someone with serious criminal convictions or who has been associated with terrorism but that you will want to adopt a generally lenient approach in particular perhaps reducing the amount of time before more minor convictions are considered "spent" for citizenship purposes. Having different definitions of good character for different groups is vulnerable to challenge, however, as logically good character should be an objective standard.
11. If you wish to take a more lenient approach to criminality, we would propose, therefore, that we amend the good character guidance to lower the threshold in respect of more minor convictions for anyone resident before 1973 (not just those within scope of this policy), recognising long residence and long-standing ties to the UK, but otherwise leave the guidance in place. Any case where a person is liable to be refused citizenship will be put to Ministers for final decision."
On 25 April 2018 Miss Rudd agreed this recommendation. Civil servants then started work revising the guidance to reflect this approach.