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

The statutory good-character requirement for naturalisation cannot be disapplied through interpretation where that would contradict the structure and purpose of the nationality legislation. However, the Home Secretary has discretion over the requirement’s content and guidance. Following the Windrush statement, it was irrational to apply the general guidance without modification to applicants whose long residence and integration had been expressly recognised as requiring special treatment. Some departure was required for minor convictions and recent suspended sentences.

The claim concerned the refusal of Hubert Howard’s application for naturalisation as a British citizen. Mr Howard had arrived in the United Kingdom as a child in 1960, had indefinite leave to remain, and was a member of the Windrush generation. His application was refused because of previous convictions, including a 2018 common-assault conviction resulting in a suspended sentence.

He challenged the refusal and the underlying approach on Convention and common-law grounds. The Convention claim alleged discrimination under article 14 read with article 8. The common-law claim alleged that continuing to apply the general good-character guidance to Windrush applicants was irrational. The application was later granted on compassionate grounds, but the court considered the legality of the earlier decisions.

1. Convention claim. The good-character requirement in paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981 was mandatory. Section 6(2) of the Human Rights Act 1998 therefore required the Home Secretary to apply it. Section 3 of that Act could not be used to read in an exception for the Windrush generation because that would effectively revive the lapsed registration route in section 7 of the 1981 Act and contradict the legislation’s purpose. The requirement was in any event directed to a legitimate objective and was capable of proportionate application.
2. Common-law challenge. The decision whether to modify the content of the good-character guidance was subject to the high Wednesbury threshold, recognised in R (Johnson) v Secretary of State for Work and Pensions [2020] PTSR 1872. The threshold was nevertheless crossed. The Windrush statement recognised the group’s long residence, integration and exceptional difficulties in proving status, and promised that members would be able to obtain citizenship quickly and with assistance. Other requirements were modified accordingly, including the language and life-in-the-United-Kingdom requirements.
3. Against that background, maintaining the general guidance without modification had no sufficient logical connection with the announced policy. Treating minor convictions dating decades earlier as relevant, and applying the ordinary three-year approach to a recent suspended sentence, contradicted the significance attached to long residence and integration. The Home Secretary could not disapply the statutory good-character requirement, but its content was within ministerial control and required some departure from the general approach.
4. The decision in May 2018 to retain the unmodified guidance was unlawful. The subsequent refusals of 5 November 2018, 3 December 2018 and 23 May 2019 were unlawful to the extent that they relied on that guidance. Appropriate relief was a declaration, notwithstanding the later grant of naturalisation.

First-instance judicial review. No prior appellate decision is stated in the judgment.