Al-Enein, R (On the Application Of) v Secretary of State for the Home Department

The statutory residence requirements for naturalisation prescribe minimum conditions. They do not prevent the Secretary of State from treating earlier breaches of immigration control as relevant to the separate requirement of good character.

Good character requires an assessment of all relevant circumstances and cannot be waived. By contrast, even after every statutory condition has been satisfied, naturalisation remains discretionary and no right to citizenship arises. A policy will be substantively ultra vires if it conflicts with Parliament's express or implied requirements or cuts down a statutory right. A policy applying a ten-year period to immigration non-compliance did neither.

The appellant applied for naturalisation as the spouse of a British citizen. The Secretary of State refused his application because his unlawful residence and unauthorised work during the preceding ten years meant that he did not satisfy her good-character policy.

The Administrative Court dismissed his claim for judicial review in [2018] EWHC 1615 (Admin). It held that the lawful-residence and good-character requirements were separate and that the Secretary of State could adopt the challenged policy.

The appellant contended that the three-year lawful-residence requirement in Schedule 1 to the British Nationality Act 1981 prevented the Secretary of State from considering immigration non-compliance outside that period when assessing good character. The central issue was whether the ten-year policy conflicted with the statutory scheme and was therefore ultra vires.

1. Appeal dismissed. The ten-year good-character policy was compatible with the British Nationality Act 1981. Singh LJ gave the judgment, with which Haddon-Cave and Flaux LJJ agreed.
2. The statutory scheme has three stages. First, the minimum statutory conditions for naturalisation must be satisfied, subject to any permitted waiver. Secondly, the Secretary of State must assess whether the applicant is of good character. That requirement cannot be waived. Thirdly, only after those conditions are met does the Secretary of State have a true discretion whether to grant naturalisation.
3. Section 50A provides an exhaustive and relatively narrow definition of being in the United Kingdom “in breach of the immigration laws” for Schedule 1. It covers, for present purposes, a person present without leave. It does not cover a person who holds leave but contravenes a condition of that leave, such as by working without permission. Such conduct can therefore be considered only under the separate rubric of good character.
4. The statutory lawful-residence period does not carve immigration misconduct out of the broader assessment of good character. The Secretary of State may regard non-compliance occurring outside the three-year period as relevant. The contrary construction would prevent consideration even of serious and plainly relevant immigration offending committed more than three years before the application.
5. A policy or subordinate measure is ultra vires if it conflicts with the express or implied requirements of primary legislation, cuts down a statutory right or otherwise exceeds Parliament's mandate. The challenged policy did not have that effect. The statutory requirements are minimum conditions and create no right to naturalisation. Even when they are met, section 6 provides that the Secretary of State may grant naturalisation if she thinks fit.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 2024, the court unanimously dismissed the appeal and upheld the lawfulness of the Secretary of State's good-character policy.
2. High Court, Administrative Court: In [2018] EWHC 1615 (Admin), a Deputy Judge dismissed the claim for judicial review. He held that lawful residence and good character were separate statutory requirements and that the Secretary of State could apply the ten-year policy.