Good character in naturalisation applications— the cuckoo is evicted (R (Sandy) v Home Secretary)

Written by Emily Wilsdon, this case note was first published on Lexis®PSL on 25 April 2023 and can be found here (subscription required). Katherine Apps KC represented the Respondent. She played no part in drafting this note. 

Public Law analysis: While this case will stand out for the eye-catching cuckoo simile within the discussion of proportionality versus rationality, it is the practical application of the legal principles that is particularly instructive. Applicants for naturalisation and their advisors should carefully consider the guidance on the good character requirement. Matters disclosed during an asylum application may require addressing or supplementation. Applicants must properly raise matters they wish to be considered. Mr Justice Mostyn emphasises that a decision on good character will be immune from judicial review if it is not irrational (in the Wednesbury sense), made in good faith, considers matters the Secretary of State is bound to consider, and excludes irrelevant matters. There is no room for proportionality in this exercise, which would open the door to an impermissible review of the merits of the decision. This is unsurprising in naturalisation, where courts have long held that citizenship is a privilege, not a right.

R (Sandy) v Home Secretary [2023] EWHC 640 (Admin)

What are the practical implications of this case?

Applicants should bear in mind that broad brush assertions will be of little assistance in naturalisation applications. The detail of any asylum application should be considered carefully, and evidence from that period added to if required. The guidance imposes a very high threshold for good character, and close attention to the thresholds and terms used within it is vital. Of broader interest is Mostyn J’s exploration of the reasons for dismissing the claimant’s bold argument, summarised at paras [43]–[45] that proportionality rather than rationality should be the applicable standard. For the principled background to the rationality standard in this area see paras [25]–[33] and paras [38]–[42]. Continued efforts to plead proportionality are likely to fall on unsympathetic judicial ears. As Mostyn J puts it at para [47], ‘There is no doubt that in the world of judicial review proportionality has advanced like a cuckoo, occupying the common law nest of traditional assessment, laying its continental eggs in it, and ejecting its home-incubated Wednesbury hatchlings’. This would lead to an impermissible merits review, and ‘a crypto-merits based proportionality appraisal of the decision in question’, (para [49]).

What was the background?

The claimant had participated in the Sierra Leone civil war within the army and ‘at the heart of’ a regime which had committed war crimes as aide de camp to the then president. He participated in combat operations, describing himself in his initial asylum application as ‘main commando qualified military personnel’ and as a ‘freedom fighter’. He was one of the top military trainers in the country. The regime fell, and he was imprisoned and tortured. He reached the UK, and was granted asylum on the basis that he would face persecution because of his service to the past regime. He later gained indefinite leave to remain, then applied for naturalisation as a British citizen. His application was silent as to his conduct during the civil war.

His application was refused on the ground that the Secretary of State could not be satisfied that he met the requirement of good character because of his role, profile in the group and length of membership and association with its leader. He had aided the commission of war crimes. His conduct since entering the UK was not a sufficiently strong countervailing factor.

The issues before the court were whether the decision maker had erred in not considering defences such as duress and superior orders, the degree to which he had distanced himself from his past membership and associations, and the degree of his personal direct involvement in events.

What did the court decide?

Mostyn J provides a useful summary of the type of evaluation that the good character requirement in naturalisation entails, the burden of proof and bases for challenge. The requirement of good character is contained in the British Nationality Act 1981 (BNA 1981). The Secretary of State must be satisfied, on the balance of probabilities, that the applicant is of good character. The burden of proof lies on the applicant. If she is satisfied, she has the discretion to grant a certificate of naturalisation. However, if she is not satisfied she must not do so. ‘Good character’ is an abstract fact, requiring subjective assessment or evaluation (similar to ‘dishonesty’). This evaluation, or value judgment, is not the same as the exercise of a discretion. The Secretary of State is ‘under no obligation to go outside the four corners’ of the application (para [53]).

Although not referred to in the judgment, it is worth recalling that the courts have long emphasised that citizenship is a privilege, not a right. BNA 1981 vests the Secretary of State with considerable discretion to refuse an application, R v Secretary of State for the Home Department ex parte Fayed [1998] 1 WLR 736 per Lord Woolf MR at 776A. The Secretary of State may set high standards for good character, providing they are reasonable, R v Secretary of State for the Home Department ex p Fayed (No 2) [2001] Imm A.R. 134 at §41, and the applicable guidance does in fact set a high standard.

In this light, it is unsurprising that Mostyn J found that first, the claimant had failed to raise or provide evidence that he had acted under duress and superior orders. His account of his actions in his asylum application was not fully coherent with the way he later argued the Home Office should have approached his good character.

Second, the claimant had not properly taken into account the ambit of the guidance (which includes that past association with persons involved in terrorism, extremism and/or war crimes may merit a refusal on the grounds of character). Instead, he had mistakenly focused on his personal involvement, which was not a decisive matter.

Third, the claimant’s blameless life since he had entered the UK 20 years ago had in fact been noted in the decision, but (in line with the guidance) that did not outweigh his past actions.