One of the requirements in order to register or naturalise as a British Citizen is to be of 'good character'. This applies to anyone over the age of 10 at the date of application.
This requirement has been discussed in detail in a previous blog post. This post looks at one aspect of good character – breach of immigration laws – and in particular, the findings of the Court of Appeal in R (Al-Enein) v v Secretary of State for the Home Department [2019] EWCA Civ 2024 (25 November 2019).
Background
Mr Al-Enein, the spouse of a British Citizen, made an application to naturalise under the 3-year route, section 6(2) of the British Nationality Act 1981 ("the Act").
The Secretary of State's guidance to officials on how to assess 'good character' then in force, was set out in Annex D to the Nationality Instructions, which stated:
"9.7 Evasion of immigration control
The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having:
1. failed to report
2. failed to comply with any conditions imposed under the Immigration Acts
3. been detected working in the UK without permission."
Mr Al-Enein's application was refused, as in the 10 year period preceding his application he had overstayed in the UK and during this time he had worked, with no right to do so.
Issues
Mr Al-Enein challenged the lawfulness of the guidance, arguing that as the Act already required an applicant to not have been 'in breach of the immigration laws' during the 3 or 5 year qualifying period, defining 'good character' in the manner set out in the policy was ultra vires by effectively extending the periods set out in the Act to 10 years. This was argued to go beyond the limits of the power that Parliament had given the Secretary of State to assess good character, as Parliament had already set out in statute the time periods for which immigration breaches were relevant.
Findings
The Court of Appeal considered that government policy could be ultra vires if it sought to cut down or negate rights created by primary legislation, approving the Supreme Court decision in Alvi.
The Court of Appeal decision in Fayed was also approved. This case confirmed that the Secretary of State has a broad discretion to define 'good character', and that this requirement is mandatory, unlike some other requirements in the Act which could be modified or dispensed with.
The Court observed that the phrase 'in breach of immigration laws' was narrowly and exhaustively defined in section 50A of the Act, which can be summarised as a person who is in the UK without leave to enter or remain.
Other immigration breaches, such as working in the UK without permission, or certain criminal conduct, such as facilitating a sham marriage would not fall under this definition but were relevant to the assessment of good character. Lord Justice Singh who gave the lead judgement, concluded that once the statutory minimum criteria to naturalise are met:
"…there is no reason in law why the Secretary of State cannot impose an additional or extended requirement relating to breach of immigration laws as properly being a matter which is relevant to the more general question of good character. As I have already mentioned, that requires an assessment or evaluation by the Secretary of State of all the relevant circumstances going to that issue" (paragraph 40)
Comment
Although Annex D to the Nationality Instructions has now been replaced, like Annex D the current guidance sets out various immigration breaches in the 10 years preceding the application that will lead to refusal on good character grounds.
The new guidance contains much more detail about the type of behaviour that will be relevant to the assessment of good character. This is helpful, as it means that applicants have greater clarity on which aspects of their history are relevant and should be addressed. However, the Al-Enein decision makes clear that the Secretary of State's wide discretion to define good character means that potentially anything could be relevant. This cuts both ways, as 'all the relevant circumstances' should be assessed, which includes matters positively demonstrating the Applicant's good character.