Ali, R (on the application of) v Secretary of State for the Home Department

The discretion to register a minor as a British citizen under section 3(1) of the British Nationality Act 1981 is unfettered, but it must be exercised reasonably and with regard to all relevant circumstances. Guidance may identify relevant factors but cannot operate as a rigid rule or automatic bar. The child’s future clearly lying in the United Kingdom was the most important criterion. A parent’s unsettled status was relevant, but the decision-maker had to consider the reasons for it, the likelihood of settlement and any delay caused by the Secretary of State. A decision based on a material misunderstanding of the facts was unlawful and had to be quashed.

The claimant applied for judicial review after the Secretary of State refused to register her children as British citizens under section 3(1) of the British Nationality Act 1981. The refusal relied principally on the fact that their father had not yet obtained indefinite leave to remain, although his settlement application had been outstanding for a lengthy period. The claimant’s naturalisation application had been granted, and the Secretary of State later agreed to review the children’s applications but maintained the refusal. By the time of the review, the father had obtained indefinite leave to remain. The central issues were whether the discretion had been exercised on the correct facts and whether the review had been properly conducted.

1. The claim succeeded. The decisions refusing the children’s applications, refusing to reconsider them and upholding the refusal were quashed. The matter was remitted to the Secretary of State for reconsideration in accordance with the judgment. Registration itself could not be ordered by the court.
2. The discretion under section 3(1) of the British Nationality Act 1981 was unfettered. The Secretary of State’s guidance was an indication of relevant considerations, not a set of rigid rules. The decision-maker had to consider each case on its merits and take all relevant factors into account.
3. The guidance’s expectation that both parents would be settled was not an automatic bar. The father’s immigration status was an important factor, but the Secretary of State had to consider why settlement had not been obtained, the likelihood of the application succeeding and the effect of administrative delay.
4. The child’s future clearly lying in the United Kingdom was identified by the guidance as the most important criterion. Nothing before the Secretary of State suggested that these children intended to live elsewhere. The decision was materially flawed because it proceeded on the mistaken belief that the father had applied neither for citizenship nor settlement, when he had applied for settlement.
5. The delay in deciding the father’s application was relevant but not determinative. It was a circumstance which had to be considered when assessing the significance of his unsettled status.
6. Where the Secretary of State promised a review, the review had to be conducted properly if there were clear grounds for reconsidering the original decision. A more limited exercise, confined to clarifying reasons for refusal, was legally possible, but that was not the review undertaken here.

First-instance judicial review proceedings. The judgment records that permission had been granted by Mr Justice Bean, but no separate appellate history is stated.