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

The statutory naturalisation scheme contains separate requirements for lawful residence and good character. A statutory period during which an applicant must not have breached immigration laws does not prevent the Secretary of State from considering a longer period of immigration compliance when assessing good character. The Secretary of State has a broad discretion to determine good character and may adopt a policy that normally treats recent non-compliance, including unauthorised work, as demonstrating that the requirement is not met. Such a policy does not render the statutory lawful-residence requirement otiose or exceed the powers conferred by the British Nationality Act 1981.

The claimant challenged the Secretary of State’s refusal to reconsider the rejection of his application for naturalisation as a British citizen. The refusal relied on his alleged unlawful residence and unauthorised employment between 20 November 2007 and 27 January 2010, and on Annex D, paragraph 9.7(c) of the Nationality Instructions. The claimant argued that the policy was ultra vires because Schedule 1 to the British Nationality Act 1981 specified a three-year immigration-law compliance period for a spouse applicant. Permission was granted on that substantive ground. The central issue was whether the statutory lawful-residence requirements excluded reliance on a longer period of non-compliance in assessing good character.

1. The court determined the substantive ultra vires challenge notwithstanding that the argument had not been raised in the earlier representations. The claimant had sought reconsideration as invited by the refusal letter, and permission had been granted to pursue the ground without restriction.

2. The statutory regime imposes two separate requirements. Schedule 1 paragraphs 3(a) to (d) concern lawful residence, including the requirement that a spouse applicant has not breached the immigration laws during the prescribed three-year period. Paragraph 3(e), referring back to paragraph 1(1)(b), separately requires good character.

3. The Secretary of State has a broad discretion in determining whether an applicant is of good character, as explained in R v The Secretary of State for the Home Department ex parte Mohamed Ali Fayed [2001] Imm AR 134. It was therefore lawful to adopt a policy under which an applicant who had not complied with immigration requirements during the preceding ten years would normally be regarded as failing the good-character requirement. The policy could include unauthorised employment.

4. The ten-year policy did not make Schedule 1 paragraph 3(d) otiose. The statutory three-year requirement remained a distinct lawful-residence requirement, operating alongside the separate good-character assessment.

5. The Secretary of State was lawfully entitled to apply the policy to the claimant’s circumstances and conclude that he did not satisfy the good-character requirement. The claim was dismissed.