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

The Secretary of State has a broad discretion when deciding applications for British citizenship. Public-law fairness does not generally require a refusal letter to explain how an applicant might overcome the adverse factor or qualify on a future application. The court’s review is principally confined to irrationality and failures to take relevant matters into account. Good character acquired in the United Kingdom and family life must be considered, but the decision-maker may conclude that they do not outweigh admitted participation in torture. A claimant cannot establish an arguable error merely by identifying a factor which was considered but given insufficient weight.

The claimant sought judicial review of decisions refusing his application for British citizenship under section 6(1) of the British Nationality Act 1981. He had admitted involvement in the interrogation and torture of LTTE suspects while serving in the Sri Lankan Army, but relied on alleged duress, his subsequent desertion, good character since arrival in the United Kingdom, and his private and family life.

A paper application was dismissed by Mr James Goudie QC as out of time and totally without merit. On renewal, the court considered whether time should be extended and whether the Secretary of State had acted unfairly, irrationally, or failed to consider relevant mitigating matters.

1. Permission and time. The court granted leave to bring the application out of time because the relevant refusal letter had not been received by the claimant’s solicitors until later. The court declined to describe the case as totally without merit.
2. Fairness and guidance. The Secretary of State’s broad discretion did not create a public-law duty to explain how an applicant might overcome the reason for refusal or what would amount to a material change of circumstances. The authorities, including Al Fayed [1998] 1 WLR 763 and Amirifard [2013] EWHC 279 (Admin), showed that the challenge could succeed only on a recognised public-law ground, principally irrationality. Such a challenge was especially difficult where Parliament had conferred a broad discretion.
3. Application of the principles. The Secretary of State was entitled to treat the claimant’s admitted involvement in torture as decisive against good character. The claimant’s asserted duress and his desertion from the Army did not disclose an arguable error. His good character since arrival had plainly been considered and weighed, as had his private and family life, but the decision-maker was entitled to conclude that those matters did not outweigh the torture.
4. The renewed application for permission was refused. The existing order for £640 costs of the acknowledgment of service stood.

• Administrative Court on the papers: Mr James Goudie QC dismissed the application on 18 June 2013 as out of time and totally without merit.
• High Court (Administrative Court): On renewal, leave was granted to bring the application out of time, but permission for judicial review was refused.