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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rushiti & Anor, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 3931 (Admin) (28 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3931.html Cite as: [2014] EWHC 3931 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Rolls Building, Fetter Lane EC4A 1NL |
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B e f o r e :
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The Queen on the application of Ylian RUSHITI and Adriatik LACI |
Claimants |
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- and - |
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Secretary of State for the Home Department |
Defendant |
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(Transcript of the Handed Down Judgment of
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Jacqueline Lean (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 21 November 2014
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Crown Copyright ©
The Hon. Mr Justice Popplewell :
Introduction
The Facts: YR
"Please note that our client is exempted from completing section 3, 4.1 and 4.2 of the application as there are no national authorities representing our client in the UK to enable him approaching them and apply for any national TD or passport."
"Re: Mr Ylian Rushiti Albania 28 April 1979
I refer to your client's application for British citizenship.
As you know from the guide that accompanied your client's application form, before reaching a decision on whether to grant naturalisation we must be satisfied that a number of statutory requirements have been met, one of which is the good character requirement. Character is not defined in law and a broad view is taken of an applicant's conduct and behaviour when deciding whether this requirement has been met. This includes the extent to which an applicant has been honest and co-operative in their dealings with the Home Office.
In this instance we recognise that you have brought to our attention that your client has knowingly employed a false nationality status since his arrival in the United Kingdom up until such time that he has submitted an application for naturalisation.
Because of this, the Secretary of State cannot be satisfied that any person who had intended to deceive the UK Border Agency by maintaining that he was a Kosovan national until he had acquired indefinite leave to remain in the United Kingdom can be regarded to be of "Good Character" for the purposes of naturalisation, as Mr Rushiti then applied for British citizenship on 21 October 2011 and stated that his true place of birth was not Kosovo, but Drashovice, Albania. He has maintained a long standing period of deception between November 1999 and 21 October 2011 when he informed the Home Office of his true nationality.
In view of his failure to disclose his true citizenship status to the Home Secretary for over a decade, thereby constituting a deliberate attempt by him to mislead a Government department, the Secretary of State cannot be satisfied that Mr Rushiti meets the "Good Character" requirement for naturalisation, she has therefore refused Mr Rushiti's application for British Citizenship. This decision has been reached irrespective of whether or not the deception that has been knowingly practised by Mr Rushiti turned out to be material to the valid indefinite leave to remain status that he subsequently obtained. It is also noted that your client has fraudulently obtained a Home Office travel document number T0031542 which further detracts from his ability to comply with this requirement."
"Mr Rushiti entered the United Kingdom in 1999 and applied for asylum in the details of Yuan Ryshyti, born 26 April 1979 in Kosovo. He maintained this deception throughout his stay in the United Kingdom until he applied for British citizenship. He applied using the details of Ylian Rushiti, born 28 April 1979 in Drashovice, Albania. Although Mr Rushiti's deception proved not to be material to his acquisition of Indefinite Leave to Remain (which was eventually granted outside of the rules after earlier refusal of his asylum claim), it was material to his acquisition of a Home Office travel document. The broad requirement for such a document is for the applicant to have no other means of travel. As a national of Kosovo Mr Rushiti would have had no means of acquiring a passport in the United Kingdom. As an Albanian he would have been able to apply for an Albanian passport. His deception was material to the acquisition of the Home Office travel document. I have reviewed the consideration given to this application and the decision made on it and I am satisfied that the correct procedures were followed and the correct decision was taken to refuse. There are no grounds for reconsideration of the application"
The Facts: AL
"Please note that our client is exempted from completing Section 3, 4.1 and 4.2 of the application because his own national authorities in the UK are unable to issue any Passport or Travel Document to the applicant because this applicant is yet to register in his own country.
Please note that this applicant left his country of origin in fear of persecution for his own life and was completely unable to attend the register office as he did fear persecution by his own national authorities due to his ethnicity.
It is his own national authorities' policy that unless someone already exists on the national register, they will be unable to issue any passport or travel document to any applicant such as this applicant."
"8. Even though I wanted Joy &. CO to write back to HO returning the original Home Office grant of status documents amending the details, I was in urgent need to travel abroad because my father, was very ill, he had an operation due to heart attack at that time (the evidence from the hospital is enclosed).
9. I attended Albanian Embassy in London and asked them to issue to me Albanian passport so I could use it to travel, however, I was advised by them that any passport application had to be made in person in Albania and not in the UK.
10. At the same time my mother informed me that my father's health deteriorated, and there was a possibility that I would never see him again.
11. I decided to scarify and apply for the HO TD using the ISD issued to me by HO, however, Joy & CO Solicitors refused to assist me in relation to the HO TD application.
12. The main reason for them to refuse to assist me was that in the file they found that I told them that I was from Albania and HO granted me as a Kosovan national, however, I tried to convince them by telling them that I was an ethnic Albanian. I did this in order to obtain the HO TD and see my father after so many years."
"In addition to this representation we wish also to state that it is accepted that the Secretary of State has issued to the above named applicant a HO TD, however, this documents (sic) has been issued to him under truly compassionate circumstances. This was done to enable the applicant to visit his very ill family members that were receiving intensive medical treatments at that time. We are also inviting the Secretary of State not to place weight on this issue because our client attended his Albanian Embassy in London and they advised him that they were unable to issue Albanian passports to Albanian citizens in the UK due to the fact that Albanian Government was issuing to its citizen biometric passports, so, the applicant had to apply in person in Albania to have his fingerprints taken. As you may be aware from your records, our client was in need to travel as a matter of urgency to see his very ill and old father that he did not see for 11 years, he was unable to get a passport through his national authorities in London, so, he had no choice but to apply for HO TD using his ILR status which was granted to him by the Secretary of State outside the Immigration Rules."
"As you know from the guide that accompanied your client's application form, before reaching a decision on whether to grant naturalisation we must be satisfied that a number of statutory requirements have been met, one of which is the good character requirement. Character is not defined in law and a broad view is taken of an applicant's conduct and behaviour when deciding whether this requirement has been met. This includes the extent to which an applicant has been honest and co-operative in their dealings with the Home Office.
In this instance we recognise that you have brought to our attention that your client has knowingly employed a false identity since his arrival in the United Kingdom up until such time that he has submitted an application for naturalisation.
In light of the prevailing circumstances the Secretary of State cannot be satisfied that any person who had intended to deceive the UK Border Agency by maintaining that he was a Kosovan National named Adriatik Elizi born in Peje, Kosovo on the 2 May 1977 in pursuit of asylum status in the United Kingdom, whilst in reality this individual was fully aware that he was an Albanian national whose true identity is that of Adriatik Laci born in Tirana, Albania on 2 May 1977, can be regarded to be of "Good Character" for the purposes of naturalisation. Your client has maintained a long standing period of deception between May 1999 and May 2012 at which point he has now informed the Home Office of his true identity. We also note that in March 2011 your client has also acquired a Home Office travel document T00320437 in a false identity.
In view of your client's failure to disclose his true identity to the Home Secretary for well over a decade thereby constituting a deliberate attempt by him to mislead a Government department, the Secretary of State cannot be satisfied that Mr Laci meets the "Good Character" requirement for naturalisation, she has therefore refused your client's application for British Citizenship. This decision has been reached irrespective of whether or not the deception that has been knowingly practised by Mr Laci turned out to be material to the valid discretionary leave/indefinite leave to remain status that he subsequently obtained."
The Legal framework
"6.— Acquisition by naturalisation.
(1)If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
(1) An applicant bears the burden of satisfying the Secretary of State that he is of good character. It is not for the Secretary of State to establish that the applicant is not of good character: see Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 16 per Stanley Burnton LJ at [31], [38]; MH & others v Secretary of State for the Home Department [2008] EWHC 2525 (Admin) per Blake J at [41].
(2) Establishing good character is a condition for the grant of naturalisation. As is clear from the wording of the statute, it is a necessary but not a sufficient condition. If good character is established, the Secretary of State "may, if [she] thinks fit" grant the application; she is not bound to do so. If the condition is not fulfilled, she has no power to grant British citizenship. She has no power to waive the requirement that the applicant must satisfy her that he is of good character: see SSHD v SK (Sri Lanka) per Stanley Burnton LJ at [36].
(3) The concept of good character involves standards of behaviour on which views may reasonably differ. Within that range of reasonable views it is for the Secretary of State, not the Courts, to set the standard in assessing whether the applicant has established that he is of good character. As Nourse LJ observed in R v Secretary of State for the Home Department ex parte Mohamed Fayed (No 2) [2001] Imm AR 134 at [41]:
"41. In R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763, 773F-G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances."
The argument
Chapter 18
"18.1.3 Naturalisation is at the discretion of the Home Secretary. Under section 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them."
"18.1.7 In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure, before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the Annexes to this Chapter."
Annex D
"2.1 Caseworkers should not normally consider applicants to be of good character if, for example, there is information to suggest:
...
e. They had practiced deceit in their dealings with the UK Government (see Section 9);
....
9. Deception
9.1 Caseworkers should count heavily against an applicant any attempt to lie or conceal the truth about an aspect of the application for naturalisation - whether on the application form or in the course of enquiries. Concealment of information or lack of frankness in any matter must raise doubt about an applicant's truthfulness in other matters.
…
9.5 Evidence of fraud in the immigration and nationality process
9.5.1 Where there is evidence to suggest that an applicant has employed fraud either:
- during the citizenship application process or
- in previous immigration application processes and
- in both cases the fraud was directly material to the acquisition of immigration leave or to the application for citizenship
caseworkers should refuse the application unless the circumstances in 9.5.2 apply. In such cases, the applicant should be advised that an application for citizenship made within 10 years from the date of refusal on these grounds would be unlikely to be successful.
9.5.2 Where deception has been employed on a previous immigration application and was identified and dismissed by UKBA or was factually immaterial to the grant of leave, caseworkers should not use that deception as a reason by itself to refuse the application under section 9.5.1.
Examples:
A. Mr A applied for and was granted asylum status as a refugee on the basis that he was a Kosovan national and therefore at risk on return to Kosovo. This resulted in a subsequent grant of Indefinite Leave to Remain (ILR) in the UK. The individual was in fact Albanian who was therefore not at risk on return to Kosovo as he would in fact have been removed to Albania if his true nationality had been known by UKBA.
This deception was clearly material to the grant of ILR as BUT FOR the deception regarding nationality refugee status would not have been secured and so, therefore, nor would have ILR been secured. The application should therefore be refused on this basis.
B. Mr B applied for asylum on the same grounds as Mr A. However, he was not granted ILR on the basis of a successful refugee claim. He was instead granted ILR under a Family Concession to which a consideration of nationality was not the primary factor. The deception was not therefore material to the grant of ILR as regardless of that fact that he claimed to be Kosovan on entry to the UK Mr B would in any case have been granted ILR under the Concession as a result of his family arrangements. In this scenario UKBA has already disregarded the claimed nationality of the individual as being immaterial to the grant of ILR under the Concession. It would therefore be perverse to assert that a previously disregarded fact could be relevant at a later date to a consideration of good character. Nationality on the date of application is, in any case, irrelevant to the naturalisation consideration.
C. Mr C entered the UK in a false name, as he had previously been removed from the UK in his previous identity. On applying for citizenship he has now admitted his true identity. As the fraud was material to the good character requirement, we should refuse the application and impose a ten year ban.
D. Mr D entered the UK in a false name, as he had previously been removed from the UK in his previous identity. Prior to making his application for ILR he admitted to the deception. UKBA took this into account, but decided not to take any action and granted ILR on compassionate grounds. As the fraud had been dismissed during an earlier consideration of the facts by UKBA we should not take it into account when deciding the citizenship application.
E. Mr E did not declare on his application form for citizenship that he had a minor conviction, which has since come to light through our internal checks. The conviction was one that would normally fit into our definition of a minor offences and which would not result in refusal of British citizenship. This means the individual should not be refused as the deception in question is not material to the decision."
(1) The deception practised, or intended to be practised, by YR and AL did not result in any benefit to them. They were not granted asylum. The basis of the Defendant's decision on their naturalisation applications was that the deception had been immaterial to the decision to grant ILR, as the Defendant expressly conceded in her Grounds on this application.
(2) YR and AL's cases are therefore directly analogous to the example of Mr B in paragraph 9.5.2 of the Nationality Instruction. Their ILR was granted pursuant to criteria to which their nationality was not material in the same way as would apply to someone granted ILR under a family concession.
(3) The deception of the Home Office in relation to the Travel Documents falls into the same category; it had no materiality to the decision to grant ILR, upon which the naturalisation application was based.
(4) Accordingly the Secretary of State was in breach of the public law principle that in the interests of achieving consistency and fairness she should follow her own published policies and not depart from them without good reason (see for example R (Lumba) v Secretary of State for the Home Department [2012] AC 245; Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299 at [36].)
"I would add two further comments. First, the judge, and indeed counsel, referred to the Nationality Instructions as policy guidance. However, most of them are not guidance as to policy in the sense of a statement as to the Secretary of State's exercise of a discretion or power, of the kind considered in R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2011] 2 WLR 671. They are in the main practical instructions to decision-makers as to how they are to go about deciding whether to be satisfied that an applicant for naturalisation has shown that he is of good character. Secondly, since the Secretary of State cannot waive the statutory good character requirement, the Instructions could not require her to accept the good character of an applicant who could not sensibly be regarded as such."