Leading UK legal publisher, LexisNexis’ LexisPSL interviewed our Immigration Team for an article on ‘when can the government refuse naturalisation due to bad character?’ We commented on the Court of Appeal’s determination in the recent case of R (on the application of AHK & Ors) v Secretary of State for Home Department  EWCA Civ 151,  All ER (D) 264 (Feb) and discussed the current legal framework behind the Secretary of State’s power to refuse naturalisation on the grounds of good character.
The full LexisPSL report is available for download here: LexisPSL – When can the UK Government Refuse Naturalisation Due to Bad Character?
R (on the application of AHK & Ors) v Secretary of State for Home Department 
The applicants had all been refused naturalisation as British citizens on the grounds that they were not of ‘good character’. Their applications for judicial review failed and they were granted permission to appeal. The appeals were stayed pending any certification of their applications by the Secretary of State under the Special Immigration Appeals Commission Act 1997, s 2D (SIACA 1997), which would give them the opportunity to challenge the Secretary of State’s decisions to the Special Immigration Appeals Commission (SIAC). At a directions hearing, the Court of Appeal, Civil Division, stayed the judicial review proceedings pending determination of any application to the SIAC.
Law Behind Secretary of State’s Power to Refuse Naturalisation on Grounds of Good Character
The British Nationality Act 1981, s 41A (BNA 1981) mentions the good character requirement for applicants wishing to register as British citizens. It states that an application for registration as a British citizen must not be granted unless the Secretary of State is satisfied that the person is of good character. Interestingly, the Act does not specify what exactly is meant by ‘good character’ and it has been left open to interpretation.
When considering a naturalisation application the Home Office carry out relevant checks to ensure that the applicant has paid their taxes or if they have any criminal convictions. The Home Office also liaise with other government bodies to ensure that that the applicant is more generally of a ‘good character’. Further, the application form requests that applicant declare any involvement with terrorism, or affiliations with any crimes in the course of armed conflict including crimes against humanity, war crimes or genocide.
Typically when an application is refused on ‘good character’ or ‘conduct’ grounds the information provided is scarce. This lack of information on the alleged short comings of the applicant was considered in R (on the application of AHK and others) v Secretary of State for the Home Department.
Explanation of Level of Disclosure of Reasons for Refusal Required by Secretary of State
The appeal focused on the Secretary of State’s decision to not give the Appellants’ detailed reasons for the refusal of their citizenship applications. This was justified by the Secretary of State’s on the basis that disclosure of the reasons would be contrary to the public interest. However the reason provided by the Secretary of State was deemed insufficient by the appellants and their grounds of appeal relied on the fact that they were entitled to a ‘core minimum level of disclosure’. The Appellants argued that disclosure had been wrongly denied to them and that they should be provided with the opportunity to rebut the Secretary of State’s allegations that they do not have ‘good character’.
Court of Appeal’s Approach to Alternative Remedy of Recourse to SIAC
Despite various arguments forwarded as to why disclosure should be provided, the Judge directed that, save for certain wording agreed between the Secretary of State and the Specially Appointed Advocate, there was to be no further disclosure to the Appellants.
A complicating factor in AHK was the Justice and Security Act 2013 (“the 2013 Act”) which came into force and thus provided a possible alternative procedure for challenges against certain types of decision including the naturalisation decisions in issue in the proceedings. Section 15 of the 2013 Act inserted new provisions into the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) empowering the Secretary of State to certify that the decision was based on information that should not be made public in the interests of national security and, where such a certificate was made, entitling the person concerned to challenge the decision in SIAC.
Specifically, section 2D of the 1997 Act relates to naturalisation and citizenship decisions. It includes provisions to the effect that SIAC is to apply judicial review principles in determining such applications and has all the remedies that would be available in judicial review proceedings.
On 6 February 2014,the Secretary of State certified under section 2D of the 1997 Act each of the naturalisation decisions in issue in the proceedings, thereby giving the Appellants the opportunity to challenge those decisions by way of applications to SIAC.
The certification provisions were intended to provide a new and more effective single forum, in SIAC, for challenges to decisions of this kind. It was held the Appellants should not be allowed to adopt a “wait and see” approach in relation to the pursuit of proceedings in SIAC.
Consideration for Lawyers, Concern for Clients
This leaves those asked to provide advice in this area of law in a difficult position. An Appellant will have to decide whether to pursue the application through SIAC or through the Higher Courts. This may depend upon the certification process, but such certificates may well become the norm. Appellants will be faced with Data Protection requests and possible onward applications to the Commissioner if information is not supplied or is redacted. But, faced with an adverse ‘good character’ assessment it appears that Appellants will have little information provided to them to support such allegations and the Courts/ Tribunals will be slow to assist in the process of discovery. Previously, Home Office immigration systems were referred to as not being fit for purpose. It appears the Courts are placing great faith in the accuracy of document keeping and records. By not providing the same to Appellants it is very difficult for a disgruntled Appellant to challenge.