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

When deciding whether to register a minor as a British citizen, the Secretary of State must have regard to the child’s best interests under Borders, Citizenship and Immigration Act 2009, section 55. The child’s best interests are a primary consideration, but may be outweighed by other relevant factors.

A policy may lawfully structure the exercise of discretion by identifying relevant factors, provided that none is treated as determinative and the statutory duty and guidance are applied. A decision is unlawful where it treats refusal of citizenship as having no impact on the child’s best interests, ignores the intangible benefits of citizenship, or relies on speculative possibilities about the child’s future.

The claimant, a New Zealand national who had lived in the United Kingdom since childhood and held indefinite leave to remain, applied under section 3(1) of the British Nationality Act 1981 to be registered as a British citizen. Neither parent was British, although both supported the application and the claimant’s father held indefinite leave to remain.

The Secretary of State refused the application under a policy concerning minors whose future was expected to lie in the United Kingdom. The claimant challenged the decision on the grounds that the policy and its application failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009, and that the reasoning was unlawful. The central issue was whether the decision properly addressed the claimant’s best interests and the evidence concerning his future.

1. The claim succeeded. The refusal of registration was quashed and remitted for reconsideration.
2. The policy was lawful. It identified a hierarchy of relevant factors, placing the child’s future in the United Kingdom at the forefront. The factors concerning parental nationality and immigration status informed that assessment but were not determinative. The policy expressly required consideration of the child’s best interests where the usual expectations were not met. It had to be read and applied together with the statutory guidance under section 55 ([2014] EWHC 2287 (Admin), paras 17–18).
3. Section 55 did not require the decision to conform to the child’s best interests. It required the decision maker to have regard to them. They were a primary, but not the only, consideration and could be outweighed by other factors.
4. The decision was nevertheless unlawful. The May letter accepted that the claimant’s future lay in the United Kingdom but treated refusal of citizenship as having no adverse effect because he already had indefinite leave to remain. That was a misdirection and a failure properly to have regard to his best interests. British citizenship had intangible benefits, including identity, belonging and fuller participation in community life, even where the child’s day-to-day life would remain substantially unchanged.
5. The August letter introduced a contradictory conclusion that the claimant’s future could not clearly be seen to lie in the United Kingdom. That conclusion was unsupported by the evidence and depended on a fanciful possibility that his mother would be removed or that he would live with his father in New Zealand. The reference to whether it was reasonable for him to live elsewhere was also inappropriate because the nationality decision had no bearing on where he lived.