DC, R (On the Application Of) v Secretary of State for the Home Department

The statutory good-character requirement for citizenship registration requires an assessment of the applicant’s character as a whole. A criminal record may be highly relevant, but a decision maker must consider the nature and circumstances of the offending, the applicant’s age, background, disabilities and any other relevant evidence. Published policy must be applied flexibly and must not become determinative of the statutory discretion. Reasons must show that relevant matters were considered rather than merely identifying convictions or reprimands. Where the decision was unlawful for inadequate reasons but it is not highly likely that the outcome would have been substantially different, relief may take the form of a declaration rather than quashing, particularly where materially different up-to-date facts make reconsideration of the historic application inappropriate.

The claimant, a national of Ivory Coast who entered the United Kingdom as a child and was later taken into care, applied to be registered as a British citizen shortly before attaining majority. The Secretary of State refused the application because of two police reprimands received while he was a minor. The refusal was upheld on review.

The claim for judicial review was transferred from the Upper Tribunal to the Administrative Court. Permission was granted on grounds that the policy had been applied inflexibly and that insufficient regard had been given to the claimant’s youth and associated disabilities. The central issue was whether the decision letters showed a lawful assessment of good character and, if not, what relief should be granted.

1. Claim succeeded in part. The decisions of 18 June and 8 September 2015 were unlawful because the reasons given did not show that the Secretary of State had properly exercised her discretion. A declaration was granted, but the decisions were not quashed.

2. The good-character assessment under the British Nationality Act 1981 involves consideration of the applicant’s whole character, not merely whether the applicant has a criminal record. The principle stated in R (Hiri) v Secretary of State for the Home Department [2014] EWHC 254 (Admin) was correct.

3. Criminal conduct may sometimes make the result inevitable, but the decision maker must consider relevant mitigating information. Here, the claimant’s difficult upbringing, evidence of coercion by gangs, cognitive difficulties and the fact that both reprimands arose while he was a minor were matters capable of affecting the assessment of character. The approach described in SA v Secretary of State for the Home Department [2015] EWHC 1611 (Admin) supported taking account of the limited opportunities available to a child or young person to demonstrate good character.

4. The first decision letter treated the recent reprimand policy as effectively determinative and did not identify any mitigating factor or other evidence relevant to character. The review letter did not reconsider the application. The later letter improved matters but still presented the claimant’s circumstances as compassionate factors to be weighed against the reprimands, rather than as matters directly relevant to whether the reprimands were a proper measure of character.

5. The statutory good-character requirement could not be waived, and the court could not substitute its own standard for that rationally adopted by the Secretary of State. Nevertheless, the decision maker remained required to exercise the statutory discretion lawfully and to give sufficient reasons to show that relevant matters had been considered.

6. Section 31(2A)(a) of the Senior Courts Act 1981 did not justify refusing relief because it was not highly likely that the outcome would have been substantially the same. However, by 2018 the claimant had incurred further convictions and custodial or suspended sentences. It was therefore inappropriate to require reconsideration of an application that fell to be decided on the facts as they existed in 2015. A declaration was just and convenient, given the importance of nationality decisions and the public interest in correct application of the policy.

The claim was lodged in the Upper Tribunal on 17 September 2015 and transferred to the Administrative Court on 21 December 2015 because it fell outside the Tribunal’s jurisdiction. Permission was initially refused on paper but granted at an oral hearing on 8 September 2016. The Administrative Court declared the decisions unlawful.