DA (Iran), R (On the Application Of) v Secretary of State for the Home Department

An applicant for naturalisation bears the burden of establishing good character under section 6(1) and Schedule 1 to the British Nationality Act 1981. The Secretary of State has a significant measure of appreciation when setting and applying the required standard, subject to rationality and reasonableness.

It would be unreasonable to demand heroic conduct from a person compelled to serve an oppressive regime. Nevertheless, conscription does not itself establish good character or prevent consideration of the applicant’s conduct, length of service and attempts to disassociate himself from wrongdoing. A decision letter need not mention every material consideration expressly where its reasoning and context demonstrate that the matter was considered.

The appellant, an Iranian refugee, had undertaken compulsory military service as a prison guard. His duties included guarding prisoners subjected to torture and escorting condemned prisoners. He later went absent without leave, refused an order to fire on prisoners and escaped from Iran.

The Secretary of State refused to naturalise him under section 6(1) of the British Nationality Act 1981 because his association with crimes against humanity cast serious doubt on his character. Lang J dismissed his judicial review claim in [2013] EWHC 279 (Admin).

The issue on appeal was whether the Secretary of State had failed, or failed adequately, to consider that the appellant’s service had been compulsory and involuntary.

1. Appeal dismissed. The Secretary of State and Lang J had made no error of law. The appellant had not shown that the standard of good character was unrealistically high or that the effect of conscription had been omitted from the assessment.

2. Under section 6(1) and Schedule 1 to the British Nationality Act 1981, the applicant bore the burden of establishing good character. The Secretary of State enjoyed a significant measure of appreciation when determining the appropriate standard. Her judgment remained subject to the requirements of rationality and reasonableness, consistently with R v Secretary of State for the Home Department, ex parte Al Fayed [2000] EWCA Civ 523.

3. It would have been unreasonable to require a heroic standard of conduct from a conscript serving a government which did not tolerate opposition. The applicant nevertheless had to provide the material on which he relied. He supplied no personal explanation for waiting until three years after conscription before first attempting to disassociate himself from his duties. Nor did he provide evidence about his training, what he knew before undertaking prison duties, or the consequences he then faced.

4. The Secretary of State was entitled to consider the appellant’s role, the duration of his service, his delayed attempt to disassociate himself and the circumstances of his eventual escape. She could rationally regard the escape as an act of self-preservation rather than disassociation, even though another decision-maker could justifiably have viewed it as the culmination of his resistance to the regime. The availability of that alternative view did not render her conclusion irrational.

5. The absence of an express reference to conscription in the final reasons did not establish that it had been overlooked or given insignificant weight. The decision was being reconsidered specifically because inadequate attention to conscription had been alleged. The decision-maker’s careful assessment of the period preceding any act of disassociation demonstrated awareness of its importance.

Pitchford LJ gave the judgment. Kitchin LJ and Moore-Bick LJ agreed.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 654, unanimously dismissed the appeal and upheld the conclusion that the Secretary of State had lawfully considered the effect of conscription.
• Administrative Court: Lang J dismissed the claim for judicial review in [2013] EWHC 279 (Admin), holding that the Secretary of State had rationally concluded that the appellant had not sufficiently disassociated himself from the Iranian regime.