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

When deciding whether a minor satisfies the good-character requirement for discretionary registration as a British citizen, the Secretary of State must assess the applicant’s character as a whole. Criminal convictions are relevant, but their significance depends on matters including the offence, mitigation, sentence and time elapsed. Nationality Instructions may guide decision-making but cannot operate as inflexible rules. A policy distinguishing applicants aged 16 or 17 from younger minors must have a rational basis and cannot ignore the age when offending occurred or the rehabilitative objectives of Article 40 of the UNCRC. Article 8 may be engaged by refusal of citizenship where the necessary threshold is met, particularly where citizenship affects family life, private life, identity or security. Section 55 of the Borders, Citizenship and Immigration Act 2009 applies when the relevant function is exercised while the person is a child.

The claimant, a South African national who had lived in the United Kingdom since childhood and had been in local-authority care, applied before his eighteenth birthday for discretionary registration as a British citizen under section 3(1) of the British Nationality Act 1981. The Secretary of State refused the application because of an unspent cannabis conviction and maintained that decision on review. The claimant challenged the decisions for fettering of discretion, failure to consider his best interests, unlawful treatment of 16- and 17-year-olds as adults, and breach of Articles 8 and 14 of the ECHR. The central issues were whether the policy had been applied lawfully, whether section 55 of the Borders, Citizenship and Immigration Act 2009 applied, and whether the refusal was incompatible with Article 8.

1. The claim succeeded. The Secretary of State’s decisions of 3 May and 6 June 2013 were quashed, and the claimant’s application was remitted for reconsideration.
2. Section 3(1) of the British Nationality Act 1981 confers a discretion. The Secretary of State may adopt policy and guidance, but must consider every application on its merits and remain willing to depart from policy in exceptional or unusual cases.
3. For the good-character assessment under section 41A, the decision-maker must evaluate the applicant’s character on all the material before her. In relation to convictions, relevant matters include the seriousness of the offence, mitigating circumstances, the sentence imposed, the time elapsed and, where the offence was committed by a child, the rehabilitative and reintegration objectives reflected in Article 40 of the UNCRC.
4. The decision-maker unlawfully treated the drug conviction as effectively determinative. The policy made no distinction between materially different drug offences and the decisions failed to weigh the claimant’s age, difficult background, minor offending, low sentence, rehabilitation and strong ties to the United Kingdom.
5. The policy distinction between applicants aged 16 or 17 and younger minors lacked a rational basis. It did not reflect the statutory concept of a minor, which extends to under-18s, and was unlawful insofar as it imposed materially different treatment on that basis.
6. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not apply because the relevant decision-making functions were exercised after the claimant had attained 18. The Secretary of State had not caused the delay, since the application was received only one day before his birthday.
7. The refusal engaged Article 8 because of its impact on the claimant’s family and private life, including identity, belonging and security. The arbitrary application of the policy was not justified or proportionate. It was unnecessary to decide the Article 14 claim or whether a conditional discharge constituted a conviction.