Rushiti & Anor, R (on the application of) v Secretary of State for the Home Department

In assessing whether an applicant for naturalisation is of good character, the Secretary of State must consider all relevant circumstances. Deliberate deception of immigration authorities is inherently relevant and may prevent the applicant satisfying the statutory requirement, even where the deception did not secure the immigration leave sought. An unsuccessful attempt to obtain a benefit remains evidence of dishonesty. Published nationality instructions identify circumstances in which deception may not be determinative, but they cannot require relevant deception to be ignored or operate as an inflexible rule. Applications for travel documents made after leave has been granted may also be relevant, even though they are not immigration applications within the relevant policy provision.

The claimants were Albanian nationals who had entered the United Kingdom and pursued asylum claims while falsely presenting themselves as Kosovans. Their asylum claims failed, but they later obtained indefinite leave to remain under the legacy programme and Home Office travel documents using the false nationality. They disclosed their true identities when applying for naturalisation as British citizens.

The Secretary of State refused both applications because the claimants’ prolonged deception meant that she was not satisfied that they were of good character. The central issue was whether the Nationality Instructions required the deception to be disregarded because it had not been material to the grant of indefinite leave to remain.

1. Applications dismissed. The Secretary of State was entitled to refuse naturalisation because she was not satisfied that either claimant was of good character.
2. Under section 6(1) and paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981, the applicant bears the burden of satisfying the Secretary of State that he is of good character. Good character is a necessary, but not sufficient, condition for naturalisation. The Secretary of State cannot waive the requirement.
3. The assessment must consider all the circumstances. Deliberate deception of immigration authorities is necessarily relevant and is ordinarily powerful evidence against good character. The fact that deception did not produce the intended benefit does not materially reduce its relevance. An unsuccessful fraudulent attempt remains evidence of dishonesty.
4. The Nationality Instructions were not a rigid code. Paragraph 9.5.2 identified limited circumstances in which previous deception might not be determinative, but it did not require the Secretary of State to ignore the deception. The claimants’ travel-document applications were also outside the expression “immigration application processes” and could independently be taken into account.
5. The example concerning deception immaterial to a grant of indefinite leave to remain was materially different. It assumed that the deception was known to, and consciously disregarded by, the immigration authorities when leave was granted. Here the deception was not then known. Treating the relevant policy as wiping the slate clean would unlawfully fetter the statutory discretion.
6. The Secretary of State was entitled to regard the claimants as having obtained benefits from the deception, including remaining in the United Kingdom while their claims were pending and obtaining travel documents which would not otherwise have been issued.

The conclusion was consistent with R (Kurmerkaj) v Secretary of State for the Home Department [2014] EWHC 1701 (Admin).