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19 MAR 2014

Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin)

The Defendant failed to properly assess the Claimant's good character in considering his application for naturalisation.

18 February 2014

Administrative Court

Lang J

(1)        The Claimant sought judicial review of the Defendant's decision to refuse his application for naturalisation as a British citizen. The reason for the refusal was that the Defendant was not satisfied that he met the ‘good character' requirement due to a conviction for a speeding offence.

(2)        The Claimant is a national of Botswana who arrived in the UK in November 2006, with a visa valid until 30 October 2008. On 25 August 2008, the Claimant enlisted for a 12 year term as a Private in the Corps of the Royal Engineers. He gave notice to leave the army in August 2011 and became a reservist. The Claimant was convicted of exceeding a temporary 50 mph speed limit on 9 April 2011.

(3)        The Claimant feared that if returned to Botswana he would be at risk of prosecution, as the Botswana Penal Code makes it an offence for a person to be in possession of a uniform of the armed forces of a foreign country. The Claimant is still an army reserve, and thus still possesses such a uniform.

(4)        The Claimant applied for naturalisation in February 2012. The Claimant also applied for asylum, the application for which had not yet been determined.

(5)        The Claimant's submissions were:

(a)        Was the Defendant's conclusion that the Claimant was not of good character irrational;

(b)        Did the Defendant fail to have proper regard to all of the factors relevant to an assessment of his character;

(c)        A correct assessment of good character would consider all matters, both favourable and unfavourable.

(d)        The decision letters indicated that a test of exceptionality had been applied, but under the terms of the Defendant's policy, that test only applied to serious offences that would never become spent.

(6)        HELD: The Claimant failed to demonstrate that the decisions were irrational or so unreasonable as to be unlawful. Nonetheless, the decision-making process was legally flawed in other respects. The Court held that the Defendant was required to consider all aspects of an appellant's character. In principle, a person could still be of good character even if he had a criminal conviction. The severity of the sentence ought to have been taken into consideration and the Defendant ought to apply her policy in a flexible manner.

(7)        There had to be a comprehensive character assessment. The decision letter only referred to the Claimant's conviction in relation to his character. There was no reference to any other aspects of his character or background. There was therefore an inadequate assessment of his character. The Claimant's application was supported by a strong character reference from a senior army officer. This letter had not been properly weighed against this good character evidence. There had been no consideration of the sentence imposed. As a result of this, the assessment was inadequate.

(8)        The Claimant accepted the Claimant's submission that the term exceptional only applied to the most serious cases. However, the Court was not satisfied that that term made any difference to the decision making process.

(9)        The Court concluded that the decision-making process was legally flawed, and the Defendant should reconsider her decision.

Claim succeeded.

Key paragraphs

[28] - Not irrational.

[35] - Good character.

[36] - Comprehensive assessment.

[38] - Inadequate assessment.

[42] - Not properly weighed.

[43] - No consideration sentence.

[49] - Inadequate.

[55] - Exceptionality.

[56] - Conclusion.

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