Hiri v Secretary of State for the Home Department

In assessing the statutory “good character” requirement for naturalisation, the Secretary of State must consider the applicant’s character as a whole. A criminal conviction is relevant but is not determinative. The decision-maker should consider the nature and circumstances of the offence, mitigation, the time elapsed and the severity of the sentence. A policy may promote consistency, but it must be applied flexibly and must not replace individual judgment. An approach which treats an unspent conviction as conclusive, excludes relevant circumstances and favourable evidence, or requires a precedent before making an exception is unlawful. The court may not substitute its own assessment of character, but may quash the decision for legal error and require reconsideration.

The claimant sought judicial review of the refusal of his application for naturalisation as a British citizen. The refusal relied on his unspent conviction for excessive speeding and the policy in the Nationality Instructions. The decision-makers did not regard his long and exemplary Army service, his commanding officer’s reference, the circumstances of the offence, mitigation or the relatively low sentence as sufficient to justify an exception.

The central issues were whether the Secretary of State had lawfully assessed the statutory good-character requirement and whether the policy had been applied inflexibly. The court rejected the irrationality challenge but considered whether the decision-making process was otherwise legally flawed.

1. Legal framework. Section 6(1) of the British Nationality Act 1981, read with paragraph 1(1) of Schedule 1, makes good character a mandatory requirement, although naturalisation remains discretionary. The statutory question is whether the applicant is of good character, not simply whether he has an unspent conviction. The assessment is subjective in the sense that the Secretary of State must be satisfied, but it remains reviewable on traditional public law grounds.
2. Scope of the assessment. The Secretary of State must consider all aspects of the applicant’s character. Convictions may vary greatly in significance according to the offence, the time elapsed and any pattern of offending. The decision-maker should consider the outline facts, mitigating factors and the sentence imposed, since the sentence may indicate the seriousness attributed to the conduct by the sentencing court.
3. Use of policy. The Secretary of State was entitled to adopt policy guidance, but it could not be applied mechanically. The decision-maker had to exercise judgment in the individual case, weigh favourable and unfavourable matters, and remain willing to make exceptions where relevant circumstances required it.
4. Application. The May, June and September decisions treated the unspent speeding conviction as effectively decisive. They failed to weigh the powerful evidence of good character, consider the circumstances and mitigation, or take account of the relatively low sentence. The September decision also wrongly treated the absence of a precedent as a reason against naturalisation.
5. The claim succeeded to the extent that the decision-making process was legally flawed. The Defendant was required to reconsider the decision in accordance with the law. The court did not find the refusal irrational on the high threshold applicable to the statutory discretion.

First-instance judicial review in the Administrative Court. The judgment states that permission was granted on 21 December 2012; no earlier judgment is identified.