Ahmed Alibiari, R (on the application of) v Secretary of State for the Home Department

A naturalisation policy may lawfully provide that illegal entry or irregular arrival will normally indicate a failure to satisfy the good-character requirement. The policy must be read as a whole and may allow exceptional cases where mitigating circumstances justify citizenship. It need not expressly identify every circumstance that might reduce moral responsibility.

A refugee’s status does not, without more, explain the means by which the person entered the United Kingdom. A challenge under Article 14 requires proof of differential treatment or disproportionate impact; objective justification may in any event be established by the Secretary of State. The public sector equality duty requires due regard, not a particular form of equality assessment or exhaustive analysis of every affected subgroup.

The claimant, an Egyptian national and recognised refugee, entered the United Kingdom concealed in a lorry after travelling through Italy, France and Belgium. He later applied for naturalisation. His application was refused under version 6 of the Secretary of State’s good-character policy, which normally required refusal where an applicant had entered illegally or arrived without entry clearance after a dangerous journey.

The claimant challenged the policy, but not the refusal of his individual application. He alleged that the policy misstated or irrationally applied the good-character requirement, was incompatible with Article 14 read with Article 8 of the Convention, and was adopted in breach of section 149 of the Equality Act 2010. The central issue was whether the policy was unlawful on any of those grounds.

1. Ground 1 dismissed. The Secretary of State was entitled to treat illegal entry and irregular arrival as conduct capable of indicating lack of good character for the purposes of British Nationality Act 1981, section 6 and Schedule 1, paragraph 1(1)(b). The assessment involves an evaluative judgment, and the Secretary of State may adopt a high standard of conduct for citizenship.
2. Version 6 did not misstate or misleadingly omit the legal position. It required individual consideration of each application, directed attention to positive and negative factors, and provided for exceptional grants where mitigating circumstances justified citizenship. The policy therefore did not require refusal in every case. A refugee might demonstrate that he lacked responsibility for the circumstances of illegal entry or irregular arrival, but the policy was not unlawful because it did not set out that possibility expressly.
3. The reasoning in R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 supplied the applicable approach to unlawful policies. The policy was neither irrational nor procedurally defective. R (Howard) v Secretary of State for the Home Department [2022] 1 WLR 4997 did not confine good character to a propensity for criminal or antisocial conduct.
4. Ground 2 dismissed. Refugees who had a good reason for entering illegally or arriving irregularly were not required by the policy to be treated in the same way as persons without such a reason. The claimant also failed to establish that the policy had a disproportionate impact on refugees. In any event, the policy was objectively justified. Applying the four-stage approach in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, the aim was legitimate, the policy was rationally connected to it, no less intrusive measure had been shown, and a fair balance had been struck.
5. Ground 3 dismissed. The Secretary of State had complied with section 149 of the Equality Act 2010. The equality impact assessment addressed race and sex, identified potential differential impacts and considered justification. Section 149 did not require further analysis of individual ethnic groups, trafficking victims or other subgroups. The court endorsed the proportionate approach described in R Clarke-Holland v Secretary of State for the Home Department [2024] PTSR 617.
6. Conclusion. The claim was dismissed. Version 6 was lawful and compatible with Articles 8 and 14 of the Convention.

This was a first-instance judicial review claim in the Administrative Court. The court dismissed the challenge to version 6 of the policy.