In this case, Sweeting J refused to grant permission to apply for judicial review of the SSHD’s refusal to register Mr Jackson, the claimant, as a British Citizen under section 1(4) of the British Nationality Act 1981. Mr Jackson was seeking to impose a lower standard of good character than the one applied by the SSHD, which was beyond the scope of judicial review. Mr Jackson wanted to challenge the SSHD’s decision dated 22 March 2022 to refuse to register the him as a British citizen. This was an internal review decision after an earlier refusal to register him as he failed to meet the good character requirement. Mr Jackson was born in the UK on 16 January 2003. He lived in the UK his whole life. At age 10, he became eligible, for British citizenship under section 1(4) of the British Nationality Act 1981. An entitlement to citizenship by registration the 1981 Act, on the basis of his connection with the UK, had to be determined in accordance with statute and subordinate legislation. It required compliance with the statutory procedures and conditions and these include the good character requirement contained within section 41A. The SSHD’s refusal to register turned upon the fact that he had committed criminal offences. He pleaded guilty to an offence of robbery on 26 March 2019 and was hence sentenced to a youth rehabilitation order with supervision, required to pay compensation of £200, and made subject to 20 days activity requirement, three months electronic tagging and curfew, and a six days programme requirement.
On 26 January 2021 he pleaded guilty to an offence of robbery. This offence involved the victim being pushed to the ground and assaulted whilst his mobile phone and wallet were taken. For this offence, he was sentenced to a youth rehabilitation order with supervision (18 months), unpaid work (100 hours), a 20 day programme requirement and 2 months of electronic tagging and curfew and a 20 day activity requirement. Moreover, he had also been convicted of an offence of theft from a person on 5 June 2018, when he had received a 12 month referral order and was ordered to pay compensation of £700. He did not make an application for citizenship as soon as he became eligible because his family could not afford to do so. The Home Office then reviewed and reduced children’s registration fees so that this impediment was removed. On 7 February 2020, while still a minor, he made an application for British citizenship accompanied by detailed representations from those advising him. These representations highlighted his unsettled life, dysmorphic features (diagnosed at age two), youth justice record, and the distinction drawn between children and adults within the criminal justice system. But in a decision dated 25 March 2021, Mr Jackson’s application for registration as a British citizen was refused. The reasons for refusal began with consideration of the policy where an applicant has been convicted of criminal offences and the specific facts of the offences committed in the instant case.
Decision
The decision-maker gave consideration was then given to whether any exceptions applied and whether there were mitigating factors which might allow the exercise discretion in the Mr Jackson’s favour on an exceptional basis. Matters which were duly noted included his potential disabilities, unsettled upbringing and the incentive that British citizenship might give him to improve his behaviour. On 22 November 2021, Mr Jackson sought an internal reconsideration/review and made further detailed representations and in support of those representations he supplied a second statement from his mother, a report of 18 December 2020, from an intermediary, on his communication skills in relation to his participation in court proceedings and a psychiatric report of 10 October 2021 from Dr Attard, Consultant Psychiatrist. The review decision concluded that there was no basis on which to re-open the application, essentially repeating the earlier grounds for the refusal decision although indicating that the additional material relied on by Mr Jackson had been considered.
Grounds for judicial review
Mr Jackson challenged the decision arguing that in evaluating the question of whether the he is of “good character”, the SSHD has approached the question from criteria applicable to adults seeking naturalisation at discretion on the basis of lawful residence, rather than applying criteria applicable to UK-born/UK-resident applicants who have an entitlement to registration. In so doing the SSHD has frustrated the statutory purpose of section 1(4) of the 1981 Act.
Secondly, the SSHD has unlawfully fettered her evaluation of “good character” under a 41A of the 1981 Act by Guidance to her decision-makers. Thirdly, the SSHD has failed to give adequate and sufficient consideration to the facts and evidence including the forensic psychiatric evidence.
Fourth, the decision is incompatible with Mr Jackson’s right to respect for his private life (article 8, ECHR) and accordingly unlawful by reason of section 6 of the Human Rights Act 1998. Fifth, the SSHD failed to give effect to her obligations under the Equality Act 2010 and the decision was incompatible with articles 3, 8 and 14 of the ECHR by reason of discrimination (and accordingly unlawful by reason of section 6 of the Human Rights Act 1998).
Good character
Section 41A of the 1981 Act provides that an application for registration as a citizen by an adult or young person must not be granted unless the decision-maker is satisfied that the person is of good character. Paragraph 1(2)(b) of Schedule 1 of the 1981 Act applies to naturalisation as a British Citizen by a person of full age and capacity under section 6(1) and also requires, amongst other things, that the applicant is of good character. Notably, the 1981 Act does not define good character but there is Home Office guidance setting out the types of conduct which must be taken into account when assessing whether or not a person has satisfied the requirement. Criminality is, for obvious reasons, a factor which falls to be taken into account and in relation to a child over 10 years of age the Guidance provides as follows:
The good character requirement applies to a person who is aged 10 or over at the date of application. When assessing whether a child is of good character, you must take account of any mitigation relevant to the child’s particular circumstances. Where a child has been convicted of a criminal offence, sentencing guidelines require that any custodial or non-custodial sentence is adjusted to take into account the child’s age and particular circumstances and any mitigating factors such as their ability to understand the consequences of their actions. Therefore although the criminal sentence thresholds for refusal and non-custodial sentencing guidelines for adults will normally apply to a child who has been convicted of a criminal offence, the lesser sentence handed down to them will mean they are automatically less likely to meet the higher thresholds.
Consideration must also be given to any subsequent mitigation put forward by the applicant that was not taken into account at the time of sentencing.
In R (SA) v SSHD [2015] EWHC 1611 (Admin), the Deputy Judge Karen Monaghan QC emphasised the distinction between adults and children and criticised the way in which the SSHD nationality policy regarding 16- or 17-year-olds who commit minor criminal offences had been applied. She found that the SSHD had unduly fettered her discretion by rigidly adhering to the policy, saying “there is no rational basis for the drawing of a bright line between child applicants who are 16 and above and those below even if the effect is to introduce only a presumption (‘normally’) as to the outcome” and the Deputy Judge quashed the refusal to register a South African national as a British citizen, considering mitigating factors such as the claimant’s background and age at the time of conviction. She summarised the effect of the authorities and drew principles emerging from the case law to be applied where the SSHD is determining whether the “good character” standard is met in the case of a child. She said the SSHD may only exercise her discretion to grant citizenship under section 3 where she is satisfied that the person concerned is of “good character”. In determining whether she is so satisfied, the SSHD must make an evaluation of the applicant’s character based on all of the material before her. In the case of criminal convictions she will need to take into account the seriousness of the offence, mitigating factors and the severity of any sentence. She made further observations regarding proper regard to the guidance in the Nationality Instructions, article 8 and section 55.
Attention was also drawn toward the observation of the Court of Appeal in R v ZA [2023] 2 Cr. App. R. (S.) 45 about the neural development of young people and its implications for questions of culpability and the assessment of maturity, i.e. “It has been recognised for some time that the brains of young people are still developing up to the age of 25.” It was also argued that in Poloko Hiri v SSHD [2014] EWHC 254 (Admin) Lang J observed that the good character test was multi-faceted and not merely a question about whether or not an applicant had criminal convictions.
She was of the view that in order to conduct a proper assessment, the Home Office ought to have regard to the outline facts of any offence and any mitigating factors. She ought also to have regard to the severity of the sentence, within the sentencing range, as this may be a valuable indicator of the gravity of the offending behaviour in the eyes of the sentencing court. In short, a criminal conviction is not in itself determinative, one way or the other, of the question of “good character”. Its significance will vary from case to case and requires individual and contextual assessment.
Judgment of Mr Justice Sweeting
Sweeting J observed that taking the above grounds together Mr Jackson’s core contention was that his application was not considered against the category of applicant to which he belonged but against the criteria applicable to migrant adults and that inadequate attention was paid to the need for discrete consideration in respect of him as a minor in the criminal justice system and the benefit that citizenship would confer.
Mr Jackson’s argument was that there was no evidence of any sufficient basis to conclude that the SSHD should not be satisfied of his good character for the purpose of meeting his statutory entitlement to be registered as a British citizen. The argument was premised on the basis that there is a significant/material difference in the statutory assessment of “good character” as between an adult who migrates to the UK, resides here, and then applies for naturalisation at discretion and a UK-born child or young adult (like him) who applies for registration as a British citizen.
Furthermore, Mr Jackson relied on the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and protect the welfare of children when making a decision. It was argued that the refusal decision did not decide explicitly in relation to what his best interests were before considering whether they might be overridden.
The SSHD contended that the application was essentially a collateral challenge to primary legislation and the contents of policy and it was argued that the decision did not involve a marginal case. Mr Jackson’s ongoing, recidivist criminal offending was relevant to good character and a decision that he did not clear the necessary threshold was not open to any serious challenge. The court said in the case of R (O) & R (Project for the Registration of Children as British Citizens (PRCBC)) v SSHD [2023] AC 255 that statutory registration did not involve fundamental constitutional rights. Lord Hodge said in the Supreme Court that the court was not dealing with a vested right at common law or under statute but with a statutory procedure for registration under which a person can acquire British citizenship and the important rights which it confers by making an application which remains subject to conditions specified by Parliament. Sweeting J held as follows:
40. The entitlement under section 1(4) BNA 1981 is an entitlement to be registered under the statutory scheme. Mr Berry’s submission that, in contrast to naturalisation, there is no good character “precondition” does not seem to me to lead anywhere. The requirement that an applicant is of good character applies to adults and young persons and has been imposed by Parliament in mandatory terms so that registration “must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character.” That requirement cannot be overridden or outweighed by an assessment that it would be in the interests of the applicant to acquire citizenship simply because of its psychological or social benefits; either the requirement is satisfied or it is not.
41. In the case of a young offender a proper consideration will of course take into account that maturity may bring to an end established patterns of offending and that the purpose of sentencing is slanted towards rehabilitation and positive interventions; but that is part of an overall and multifaceted enquiry into whether an applicant is of good character. It does not involve a different legal test.
The court said that the SSHD is entitled to apply a high standard as held in R v SSHD ex p Al Fayed (No 2) [2001] Imm AR 134 subject to review by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, went on to give a decision which no reasonable decision-maker could have given.
Comment
The court was not impressed with the misconceived argument as to “good character” that, in Mr Jackson’s application the decision-maker had approached the question from criteria applicable to adults seeking naturalisation at discretion on the basis of lawful residence, rather than applying criteria applicable to UK-born/UK-resident applicants who have an entitlement to registration. Sweeting J gave short shrift to all of Mr Jackson’s grounds and his counsel’s arguments did not lead the court anywhere. The good character requirement for citizenship was not capable of being overridden or outweighed by a child applicant’s interests and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 did nothing to change the reality of that situation.