OBN (a minor), R (on the application of) v The Secretary of State for the Home Department

The discretion under section 3(1) of the British Nationality Act 1981 is open-ended. The Secretary of State may adopt guidance identifying matters normally expected to be satisfied, provided the guidance remains flexible and each case is considered on its merits. The statutory criteria are not thereby converted into rigid conditions.

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the decision must show that the child’s best interests were considered. A brief decision may suffice where its reasoning demonstrates that the duty was discharged. Refusal of discretionary citizenship will not generally engage Article 8 where the applicant continues to enjoy family and private life in the United Kingdom and the decision is not arbitrary.

The claimant, a Bangladeshi child born in Bangladesh, applied under section 3(1) of the British Nationality Act 1981 to be registered as a British citizen. His father was British, his mother was not settled, and the claimant was subject to immigration time limits.

The Secretary of State refused the application by reference to nationality guidance stating that settlement was normally expected. The claimant sought judicial review, alleging unlawful fettering of discretion, failure to comply with the section 55 duty to safeguard and promote his welfare, breach of Article 8 of the ECHR, unreasonableness and inadequate reasons.

The court also considered whether the claim should be refused because an available review had not been requested.

1. Preliminary issue. The claimant should generally have used the review procedure identified in the refusal letter. However, the Secretary of State’s detailed response to the pre-action protocol letter indicated that a review would probably have produced the same result. The claim was therefore not refused on that procedural ground.
2. Section 3(1) discretion. The power under section 3(1) of the British Nationality Act 1981 is open-ended and permits the Secretary of State to take into account any matter rationally considered relevant. The guidance provides a framework for the exercise of discretion, but its criteria are not exclusive and do not impose definitive rules. The refusal letter showed that the Secretary of State considered the relevant framework and did not materially misdirect himself ([20]).
3. Best interests. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 required more than mere awareness of the duty. The refusal letter expressly stated that the claimant’s best interests had been considered. Its reference to the claimant’s British father and sister, his schooling and family life, and the conclusion that his best interests did not require citizenship were sufficient, though barely stated, to discharge the duty ([21]).
4. Fettering. The Secretary of State was entitled to determine which factors were relevant and what weight they should receive, subject to public law principles. The refusal letter did not demonstrate an inflexible policy or unlawful fettering of discretion ([26]).
5. Article 8 and reasonableness. On the facts, refusal of discretionary citizenship did not significantly interfere with interests protected by Article 8 of the ECHR. The decision was not arbitrary. Nor was it unreasonable in the Wednesbury sense. The reasons were brief but adequate to explain why the guidance criteria were not met and why discretion was refused. In any event, no substantial prejudice from any deficiency in reasoning was established, since a fuller letter would have reached the same conclusion ([28]-[33]). The claim was dismissed ([34]).

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