Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 152
P213/13	OPINION OF LORD GLENNIE in the cause DIVINE MULEKA KASONGA and DAVID BADIBANGA KASONGA Petitioners; For judicial review of a decision by the Secretary of State for the Home Department to refuse to register each of the petitioners as a British citizen. ________________

Pursuer: Caskie; McGill & Co

Defender: McKendrick; Office of the Advocate General

10 September 2013

Introduction

[1] The petitioners are citizens of the Democratic Republic of Congo. By this petition they each seek judicial review of the refusal by the Secretary of State for the Home Department to register them as British citizens.

The decision and reasons for it

[2] The petitioners are sister and brother. David is the elder. He is now 19 years old, having been born on 18 May 1994. Divine was born on 7 June 1996 and is now 17 years old. They came to the UK with their mother (Alphonsine) in 2002. They and their mother were each granted Indefinite Leave to Remain in the United Kingdom on 4 February 2008. On 1 November 2010 they and their mother applied to become British citizens. Those applications were refused on 9 February 2011. Further reasons for that refusal were given on 1 April 2011 in response to a request that the application be reconsidered. At the date both of the application and of the refusal - though it is the date of the application which matters - the petitioners were respectively 16 and 14 years old.

[3] The reason for refusal of the mother's application was that she had been convicted of driving without displaying "L" plates (respect of which she was admonished and her licence was endorsed) and driving without insurance (in respect of which she was fined £200 and received another 6 penalty points on her licence). Those convictions led the Secretary of State to conclude that she did not meet the "good character" test, which is one of the tests relevant to the process of naturalisation, because she had an "unspent" conviction which would only become "spent" on 14 February 2015. No challenge is made to that part of the Secretary of State's decision.

[4] Separate consideration was given to the position of the petitioners. In the initial decision letter dated 9 February 2011 the Secretary of State said this:

"I refer to the application for the registration of Divine & David as British citizens under section 3(1) of the British Nationality Act 1981.

The registration of minors under this provision is at the Secretary of State's discretion. Normally, minors will not be registered if, as appears in this case, neither parent is a British citizen. Therefore their applications have also been refused."

In a subsequent letter dated 1 April 2011 further details were given of the reason for the decision. It said this:

"I refer now to the application to register David and Divine as British citizens under section 3(1) of the British Nationality Act 1981.

The Nationality Staff Instructions advise that it will rarely be right to register a child neither of whose parents is or is about to become a British citizen. You suggest that discretion be applied to disregard this expectation on the grounds that David and Divine are older teenagers who have spent most of their lives here.

'Older teenagers' are those approaching the age of 18. Divine, at the age of 14, cannot be considered an older teenager therefore it is not considered appropriate to apply discretion to disregard the expectation that a parent is a British citizen on this basis. David turned 16 just before the application was submitted and has been resident in the UK for just over eight years. Whilst I note that he has now spent just over half of his life here, as he has spent almost half of his life abroad, he is not considered to have spent 'most' of his life here, therefore it is not considered appropriate to apply discretion on this basis.

Since the established policy does not cover the children's particular circumstances, I have looked for a precedent where we have registered a child with matching circumstances. As there are no existing precedents that match their circumstances, I have considered whether they are sufficiently different from other children born outside the UK who have been resident for a lengthy period and whose parents have been refused British citizenship who have been refused under section 3(1) to justify their registration. I can see no grounds which might support the view that it would be in David and Divines best interests to be registered as British citizens in the face of established policy. Consequently, the decision to refuse their applications is maintained."

[5] On 25 July 2012 the Secretary of State made a decision in another case to grant British citizenship to an individual to whom I shall refer as "JK". He is four days younger than Divine. He entered the UK in January 2001 and he and his family were granted Indefinite Leave to Remain in May 2008. In November 2011 JK and his father made an application to become British citizens (his mother did not apply, recognising that she was unable yet to satisfy the knowledge of life in the UK requirements). The father's application was refused because he was to be prosecuted in connection with the unlawful importation of cigarettes. However, notwithstanding that neither of his parents were or were about to become British citizens, JK's application was granted. At the time of his application he was 15 years old and had been in the UK for about one year longer than the petitioners.

[6] On their solicitors becoming aware of the case of JK, which appeared to them to be an inconsistent decision on very similar facts and implied a decision to treat the 15 year old JK as an "older teenager", permission was obtained from the K family for their case to be used in support of the petitioners' application. Armed with this further information, solicitors for the petitioners wrote a "pre-proceedings letter" dated 7 February 2013 pointing out that JK was registered as a British citizen when his circumstances were comparable to those of the petitioners and arguing that the same conclusion should have been reached in the case of the petitioners. The Secretary of State's response is set out in a letter dated 20 February 2013, the material parts of which read as follows:

"Your clients' application was determined on 25^th of January 2011. On this date, David was 16 and Divine was 14, and both had been resident in the UK for just over eight years. As explained in my previous letter, at the age of 14 Divine was not considered to be an older teenager, and despite David being 16 years old, as he had not spent 'most' of his life here, it was not deemed appropriate to disregard the normal expectation that at least one parent is, or is about to become, a British citizen for either child.

[J's] application was determined on 25^th of July 2012. On this date he was 16 years old and had been resident in the UK for 11.5 years. Applying the same policy is applied to your client it was considered appropriate to exercise discretion in that particular case, as he was an older teenager who had spent most of his life here.

Having reviewed both cases, I am satisfied that the same test has been applied in both cases and the individual circumstances are such it was reasonable to reach differing conclusions in each. I can see no grounds to support the view that failure to register David and Divine was unreasonable or unlawful.

If David and Divine still wish to become British citizens fresh applications will need to be made. As David is now aged 18 he may apply for naturalisation (subject to meeting the statutory requirements), whereas an application for Divine's registration as a minor may be submitted prior to [her] 18^th birthday on 7 June 2014. Any fresh application will be decided on the basis of enquiries carried out at that time, however as Divine is now an older teenager who has been resident in the UK for over 10 years, the usual expectation for registration under section 3(1) that at least one parent is a British citizen may be disregarded in accordance with the policy previously described."

The relevant legislation

[7] The process by which an adult who is not British may become British is by way of naturalisation. Various conditions require to be met for a person may become British by naturalisation. The process by which a child who is not British may become British is different. Such a child has to apply for registration under section 3(1) of the British Nationality Act 1981. This provides as follows:

"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 such a citizen."

The language ("may, if he thinks fit") shows that the Secretary of State has a discretion whether or not to register the applicant. That section goes on to deal with cases where a minor is entitled as of right to be registered as a British citizen if certain requirements are met. It is not suggested that those provisions apply here. Accordingly, whilst the Secretary of State has published guidance on who she will register, the decision under section 3(1) is a discretionary one and may be granted to any child who is not already British.

[8] I was referred also to section 41A of the 1981 Act which provides, in subsection (1), that an application for registration under inter alia section 3(1) must not be granted unless the applicant is of good character.

Published guidance

[9] As is to be expected, the Secretary of State has published guidance as to how her discretion whether or not to register an applicant under section 3(1) of the 1981 Act will be exercised. That guidance is contained in Chapter 9 of the UKBA Staff guidance, instructions and country information, which is concerned with "Registration of Minors at Discretion" under section 3(1) of the Act. In the introductory section, at paragraph 9.1.1, it is pointed out that persons may be registered under section 3(1): if applications are made while they are minors; and if aged 10 or over on the date of the application, the Secretary of State is satisfied that they are of good character; and if the Secretary of State thinks fit to register them. Paragraph 9.1.2 points out that those are the only statutory requirements. Paragraph 9.1.3 sets out the requirement for applications to be supported by two referees known to the child personally. Paragraph 9.1.4 makes it clear that a number of other factors are normally taken into account in deciding whether or not to register a minor under this provision, and explains that Chapter 9 gives guidance about how the discretion should normally be exercised. But it is emphasised in paragraph 9.1.5 that the guidance set out in Chapter 9 does not amount to "hard and fast rules". It says that 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. It concludes, in paragraph 9.1.6, that it is therefore possible, depending on the particular circumstances of the case, to register a minor under circumstances that would normally lead to the refusal of an application; and, equally, it is possible to refuse to register a minor where normally that minor might expect to be registered.

[10] The guidance goes on to set out, in paragraphs 9.6 - 9.17, criteria which may have to be satisfied if an application is to be successful. As is made clear in paragraph 9.2.4, paragraph 9.17 sets out the full list of criteria which minors are normally expected to meet; but there are a number of other categories, covered by paragraphs 9.6 - 9.16, covering situations where not all the criteria in paragraph 9.17 have to be met. Where the minor has neither an automatic claim to British citizenship nor an entitlement to registration, and where he or she does not fall into any of the categories in paragraphs 9.6 - 9.16, the proper approach in any case is to see whether the criteria in paragraph 9.17 are met and, if not, whether there are any grounds for making an exception to the normal criteria. It was not suggested that in the present case either of the petitioners had an automatic claim to British citizenship or an entitlement to registration. Nor was it suggested that either of them fell within any of the categories in paragraphs 9.6 - 9.16. In those circumstances, it was necessary to see whether the criteria in paragraph 9.17 were met. Paragraph 9.17.2 states that the most important criterion is that the child's future should "clearly be seen to lie in the UK". There was no reason in the present case to consider that that criterion was not met. Other criteria are set out which it is not necessary, for present purposes, to rehearse. The focus of the dispute in the present case related to paragraphs 9.17.11 and 9.17.12. I should set those out in full.

"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 ...

9.17.12 An application which falls outside these criteria should not normally be approved, even if there are British citizens 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."

[11] It is accepted that neither of the petitioners' parents is or is about to become a British citizen. In those circumstances, as paragraph 9.17.11 makes clear, it is necessary to consider whether there are exceptional circumstances justify registration in these particular cases. The argument addressed to the Secretary of State was that there were exceptional circumstances in that they were both older teenagers who had spent most of their lives in the UK. That submission was rejected by the Secretary of State. She did not regard Divine, who was 14 at the date of the application, as an "older teenager". She was prepared to regard David, aged 16 at the date of the application, as an older teenager, but did not consider that he had spent "most" of his life in the UK.

Submissions and discussion

[12] Mr Caskie, for the petitioners, submitted that David, who was accepted to be an older teenager, had spent "most" of his life in the UK. As at the date of the application, which he accepted was the relevant date (see Gowa v Attorney-General [1985] 1 WLR 1003 at 1009E) David was just over 16 years old and had spent just over 8 years in the UK. "Most" meant most, in other words "more than half". That was the only proper interpretation of the guidance, otherwise there was scope for uncertainty and inconsistency.

[13] I cannot accept that argument. The word "most" is somewhat flexible. It may refer to a bare majority of time, of votes or whatever may be the subject matter of the discussion. But it may also be used to mean something significantly more or less than that. If a person says that he spends "most of the winter" in France, he probably does not simply mean that he spent a bare majority of the winter there. If a person is discussing the likelihood of one of a number of events occurring, the most likely will simply be that which is more likely than the others, even though the degree of likelihood is less than 50%. Accordingly, depending upon the context, the word "most" may have a less precise, almost qualitative, meaning. It seems to me that, in applying her own guidance, the Secretary of State was entitled to take the view that, notwithstanding that he had been in the UK for a bare majority of his 16 years, David had not spent "most" of his life in the UK.

[14] This same argument does not arise directly in the case of Divine. She was 14 at the date of the application and, having spent eight years of her life in the UK, might well be thought to have spent "most" of her life here. However, the Secretary of State did not regard her as an "older teenager". I do not understand how this can be challenged. On the face of it, a 14-year-old cannot properly be described as an "older teenager".

[15] Recognising, as I think he did, the difficulties with this part of his argument, Mr Caskie placed considerable reliance on a comparison with the case of JK to which I have referred earlier. He argued, under reference to cases such as Arthur JS Hall & Co v Simons [2002] 1 AC 615, 688H and Shirazi v SSHD [2003] EWCA Civ 1562 at paras. [29] and [31], that it was a fundamental principle of justice that people in the same position be treated equally and liking cases be treated alike. I have no difficulty in accepting this proposition. It is fundamental to the proper administration of justice. Where I join issue with Mr Caskie is in identifying a breach of that principle in the present case. JK was 15 when he applied and he had been resident in the UK for 111/2 years. Being aged 15, he was treated as an "older teenager". His case cannot be used to support an argument that Divine, who was 14 at the time of her application, should have been treated as an "older teenager". His time in the UK had, at the date of the application, been for considerably more than a bare majority of his life (111/2 years out of 15). So his case is not a precedent for an argument that a bare majority of the time should be regarded as sufficient to meet the test of the applicant having spent "most" of his life in the UK.

[16] On this basis the petition falls to be refused.

Mora, taciturnity and acquiescence

[17] On behalf of the Secretary of State it was argued, as a preliminary point, that the petition should be refused on grounds of mora, taciturnity and acquiescence. I was referred to the usual cases, viz. Somerville v Scottish Ministers 2007 SC 140 and United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831. I was also referred to Lutton v The General Dental Council [2011] CSIH 62 and OWA Ptr [2013] CSOH 52 on the question of whether prejudice was an essential element of the plea. I do not need to address this matter in detail since I have refused the petition on its merits. Suffice it to say that I would not have dismissed the petition for any of these facets of delay. I am satisfied that there was good reason for the petitioners to reopen the matter once they came to hear of the manner in which JK's application had been dealt with. While before then they may have become resigned to what had occurred, I do not see why this should mean that they would not be entitled to complain when a new ground appeared to open up for them. That is sufficient, in my opinion, to negative any complaint along these lines.

Disposal

[18] For the reasons which I have given, I shall refuse the petition. I shall reserve all questions of expenses.