Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 128
P95/13	OPINION OF LORD BANNATYNE in the cause P R C Petitioner; for Judicial Review of a decision dated 1 October 2012 of the Secretary of State for the Home Department to refuse to naturalise the Petitioner as a British citizen. ________________

Petitioner: Caskie, Advocate; McGill & Co

Respondent: McIlvride, Advocate; Office of the Advocate General

31 July 2013

Introduction

[1] This judicial review came before me for a first hearing. The petitioner sought judicial review of a decision of the Secretary of State for the Home Department ("the respondent") of 1 October 2012 refusing to naturalise the petitioner as a British citizen. The petitioner was represented by Mr Caskie, advocate. The respondent was represented by Mr McIlvride, advocate.

The factual background

[2] The petitioner is a citizen of Iraq. He entered the United Kingdom in 2000 and sought asylum but his application was refused. After sundry procedure the petitioner was granted indefinite leave to remain in the United Kingdom on 11 November 2009. After he had held that status for a period of one year the petitioner sought to naturalise as a British citizen.

[3] The petitioner's application for naturalisation was refused in a decision dated 6 January 2011 ("the first decision"). The respondent advised the petitioner in her letter of that date that, in the circumstances where the petitioner had an unspent conviction and had failed to disclose that conviction in his application for naturalisation, she was not satisfied that the petitioner was of good character. In addition the respondent advised the petitioner that whilst he might reapply for citizenship at any time a further application made within ten years of the date of the refusal was unlikely to be successful.

[4] The petitioner accepted that the refusing of his original application while he had an unspent conviction was reasonable. The petitioner, in this petition, did not seek to challenge the first decision of the respondent and to have it reduced.

[5] The petitioner had a conviction dated 16 November 2006. The offences contained in that conviction became spent on 16 November 2011. This conviction should have been disclosed in the petitioner's initial application to naturalise.

[6] On 3 July 2012, after the said conviction was spent, the petitioner made a further application to naturalise as a British citizen. The respondent refused that application in a decision letter dated 1 October 2012 which ("decision letter") was the decision which the petitioner now sought to challenge.

The legislative framework

[7] Section 6 of the British Nationality Act 1981 ("the 1981 Act") so far as material to this matter provides as follows:

"If, on an application for naturalisation as a British citizen... 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 him a certificate of naturalisation as such a citizen."

[8] Schedule 1 of the Act is headed: "Requirements for Nationalisation as a British citizen under section 6(1)"and insofar as material to these proceedings provides:

"1

(1) Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it - ...

(b) that he is of good character; ... "

The submissions on behalf of the petitioner

[9] Mr Caskie began his submissions by asserting that as regards inaccurate information the same principles applied in nationality cases as in immigration cases. He then referred me to AA (Nigeria) v The Secretary of State for the Home Department [2010] EWCA Civ 773 where in the context of an immigration decision certain observations were made by Rix LJ regarding the meaning of the word "false".

"7 It is a remarkable feature of a language as rich as English that the word 'false' has two meanings. Thus its first meaning (the Concise Oxford Dictionary) is 'wrong, incorrect' and its second meaning is 'lying, deceitful, treacherous, unfaithful to ; deceptive; spurious, sham, artificial...'. So it can be used to denote something which is merely not in accordance with the true facts, or it can be used to denote something which is also dishonest (or at least the product of artifice). Lawyers certainly are familiar with the two uses. However, our civil law tends to prefer the expression 'misrepresentation' to 'false representation' in order to emphasise that an untrue representation need not be dishonestly made. Misrepresentations may be innocent, or fraudulent, or negligent. That it seems to me is a wise precaution. In the criminal law, the word 'false' on the whole (but I am cautious about the dangers of generalisation) is used in the second sense of the word. Thus 'false accounting', 'making false allegations', 'false statements on oath', 'false instruments' (to pick up expressions from the index of Archbold) are all used in a context where the mens rea element demands something more than mere inaccuracy."

[10] Mr Caskie then turned to two sets of departmental guidance (Annex D to Chapter 18 of the Nationality Instructions) which had been issued by the respondent to her staff for use when considering naturalisation applications and in particular when considering the good character requirement. Mr Caskie, when he first referred me to this guidance, was unable to say as to when it had been in force. He eventually, as I understood it, came to accept that this guidance was not in force as at the date when either of the petitioner's applications were made and decisions were made in relation thereto and that the guidance in force was as contended for on behalf of the respondent. However, it was his position that this guidance was nevertheless of some importance. The first set of guidance which he referred me to was in the following terms:

"6.1 It should count heavily against an applicant who lies or attempts to 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.

6.2 We should take into account the intentions of any concealment. If it is on a minor matter, not relevant to the decision, it may be overlooked. If it relates to a criminal conviction, we should only be prepared to overlook the deception if there are good reasons which we accept as genuine - such as a misunderstanding of the effect of the Rehabilitation of Offenders Act/Order or that applications have good reasons for not wishing to disclose their past to someone, such as a referee or a spouse/civil partner, who would see the application form, and the applicant is open at interview and otherwise suitable for naturalisation. However, if the deception is serious and deliberate, particularly if the applicant did not co-operate in our enquiries, or if it contributes to other doubts about the decision, then the application should normally be refused. For guidance on how to deal with applications where the applicant has failed to declare an impending prosecution please see paragraphs 3.5.6 above."

The second version of the guidance stated as follows:

"3.2.2 Failure to declare an unspent conviction may itself cast doubt on the applicant's truthfulness and therefore whether or not they are of good character. Rehabilitation periods under the 1974 Act and the impact they have on nationality applications are set out in full at Annex D(i)...

Caseworkers should count heavily against an applicant any attempt to lie or conceal the truth about an aspect of a previous UKBA immigration application as well as the current 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.

10.1 Concealment of Minor Convictions of Charges

10.1.1 Where the applicant has failed to disclose any (including minor) outstanding charge or conviction that would result in refusal of the application caseworkers should normally refuse the application. In such cases, the applicant should be advised that an application for citizenship made within 10 years from the date of the refusal on these grounds would be unlikely to be successful.

Failure to declare an unspent conviction may itself cast doubt on the applicant's truthfulness and therefore whether or not they are of good character. Rehabilitation periods under the 1974 Act and the impact they have on nationality applications are set out in full at Annex D(i)."

[11] It was Mr Caskie's position that both versions of the guidance were consistent with the approach enunciated in AA (Nigeria).

[12] Mr Caskie then drew my attention to The Queen (on the application of Chockalingam Thamby v Secretary of State for the Home Department [2011] EWHC 1763 (Admin) at paragraph 67, where Sales J set out the approach which the respondent must take when considering an application for naturalisation:

"67 In considering an application for naturalisation, it is established by the first Fayed case that the Secretary of State is subject to an obligation to treat the applicant fairly, which requires her to afford him a reasonable opportunity to deal with matters adverse to his application. In my view, that obligation may sometimes be fulfilled by giving an applicant fair warning at the time he makes the application (e.g. by what is said in Form AN or Guide AN) of general matters which the Secretary of State will be likely to treat as adverse to the applicant, so that the applicant is by that means afforded a reasonable opportunity to deal with any such matters adverse to his application when he makes the application. In other circumstances, where the indication available in the materials available to an applicant when he makes his application does not give him fair notice of matters which may be treated as adverse to his application, and hence does not give him a reasonable opportunity to deal with such matters, fairness will require that the Secretary of State gives more specific notice of her concerns regarding his good character after she receives the application, by means of a letter warning the applicant about them, so that he can seek to deal with them by means of written representations (as eventually happened in the Fayed case). Where there is doubt about whether the obligation of fairness has been fulfilled by means of the indications given by the Secretary of State at the time an application is made, she may be well-advised to follow the procedure adopted for the second Fayed case so as to avoid the need for argument about the issue on judicial review proceedings."

[13] Mr Caskie submitted that what could be taken from the foregoing passage was that the attitude of the respondent must be fair and that in the context of the present case that required her to take certain steps which she had failed to take.

[14] Having examined these authorities and the guidance issued by the respondent, the petitioner's position was this:

[15] The respondent in considering a failure to disclose a previous conviction in a previous application required to approach the issue as follows:

[16] She required to go through a three-stage process asking herself these questions:

(a) Was there inaccurate information in the earlier application?

(b) Was the inaccurate information provided due to error, oversight, mistake, or other reasonable reason that did not indicate a deliberate attempt to deceive?

(c) If not were there factors such as passage of time, or other evidence of good character that meant that notwithstanding the previous deception the application should be granted?

[17] Mr Caskie went on to contend that the respondent's error had been in failing to ask herself the second question. What he submitted she had done was this: she simply had moved from a conclusion that there was inaccurate information in the original application form to a conclusion that the petitioner was being deliberately deceptive. It was his position that the respondent was not entitled to make that leap. She required to consider whether there was any explanation for the inaccurate information being provided. This required the respondent in the circumstances of this case to enquire of the petitioner why he had provided inaccurate information. He then said that she required to consider that explanation and determine whether the inaccurate information had been provided in a manner that was consistent with the first meaning of false, namely: wrong or incorrect or, further, it was a result of the second meaning of the word which is "lying, deceitful, treacherous, unfaithful to; deceptive; spurious, sham, artificial etc.".

[18] The respondent had not done this and in failing to properly apply the correct law and guidance to the issue she was addressing, she had failed to address the essential question. Accordingly her decision demonstrated she had failed to understand correctly the law that regulated her decision-making power and had failed to give effect to that law.

[19] Mr Caskie went on further to argue that if the respondent were to have properly decided the petitioner had made an application that was intended to be deceptive then she required to further go on and consider whether there were other factors such as passage of time, or other evidence of good character that meant that notwithstanding the previous deception the application could still be granted. In this she had also failed.

[20] In paragraph 24 of the petition there was an argument articulated based on a failure by the respondent to provide adequate reasons, this however, was not insisted upon by the petitioner.

Reply for the respondent

[21] Mr McIlvride invited me to sustain the pleas in law for the respondent and refuse the petition. He commenced his submissions by reminding the court that the challenge in the petition was to the second decision of the respondent. The court could not competently decide upon the lawfulness of the first decision.

[22] Having made that preliminary observation, Mr McIlvride submitted that the starting point was section 6 and Schedule 1 of the 1981 Act which when read in combination provided that if the Secretary of State is satisfied that an applicant is of good character she may if she thinks fit grant nationality.

[23] As to the meaning of good character in this context he directed me to the remarks of Nourse LJ in R v Secretary of State for the Home Department, ex parte Al Fayed (No 2) [2001] Imm AR 134 at paragraph 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 be reasonably be adopted in the circumstances."

[24] He took from this that if the respondent adopted a high standard in her assessment of whether she was satisfied as to good character it was no part of the court's function to interfere with that.

[25] It was also clear, he submitted from the authorities, that the onus was on the applicant to satisfy the respondent as to good character (Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 16 per Stanley Burnton LJ at paragraph 31).

[26] He adopted the comments of Sales J in The Queen (on the application of Chockalingam Thamby) v SSHD at paragraph 67 as to the obligations on the respondent when considering an application for naturalisation.

[27] Against that background in a concise submission Mr McIlvride said this: when the first application made on behalf of the petitioner was refused it was made clear to him that the basis of refusal was his failure to disclose and he was told that it was unlikely that if he made a further application within the next 10 years that it would be successful. He submitted that the respondent could hardly have made it plainer that the failure to disclose was being treated as a material consideration and in making it plain that this matter would be taken into account when assessing any further application made within that 10 year period.

[28] He went on to submit that the petitioner having been told this must have known that in any further application he would require to address this material concern. However, when one turned to look at his further application there was nothing therein to address that issue by way of explanation as to why he had failed to disclose the unspent conviction.

[29] Having regard to the observations at paragraph 67 in the Thamby case he said this: He had a fair warning as to the materiality of this issue, he had a fair opportunity to deal with this issue and he had not done so.

[30] It was his position that when making her further decision (which was the only decision challenged) there was no duty of enquiry on the part of the respondent.

[31] As regards the observations in AA (Nigeria) he submitted these could not be read across to the present circumstances as the court there was dealing with an issue of fact in terms of immigration rules which was not the same as dealing with the subjective assessment of good character, the issue before the respondent in the instant case.

[32] As regards the guidance issued by the respondent he advised at the date of the first decision one version of annex D to Chapter 18 was in force and at the date of the further decision another version was in force. Moreover, both as far as material to this case were in the same terms:

"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.

9.2 Concealment of Minor Convictions or Charges

9.2.1 Where the applicant has failed to disclose any (including minor) outstanding charge or conviction that would result in refusal of the application caseworkers should normally refuse the application.. In such cases, the applicant should be advised that an application for citizenship made within 10 years from the date of the refusal on these grounds would be unlikely to be successful."

[33] His position was that nothing in the relevant guidance supported the petitioner's contention that the respondent was under an obligation to carry out further enquiries.

Discussion

[34] I would generally observe that the first decision of the respondent has not been challenged in this petition as unlawful and it is not sought in this petition to reduce the first decision. At various points in the course of his submissions Mr Caskie's argument came very close to challenging the lawfulness of that decision. There is, in my view, force in the argument of Mr McIlvride, that where the lawfulness of the first decision has not been challenged, the court cannot competently decide on the lawfulness of that decision. The respondent was entitled, it seems to me, when approaching her further decision to have regard to her first decision on the basis that it was lawful.

[35] With that general observation in mind I turn to consider the detailed argument of counsel.

[36] It appears to me that, given the way the argument developed before me, the critical issue in this case is fairness and that the essential question for the court came to be this: had the petitioner been treated fairly by the respondent in relation to his further application?

[37] In considering whether the respondent has fulfilled the obligation to be fair to the petitioner regarding his further application I am persuaded that the correct approach is as set out by Sales J in the Thamby case at paragraph 67. Accordingly the question for the court appears to me to be this: was the petitioner given fair warning (or fair notice) when making his further application of matters which may be treated as adverse to that application and was he given a fair opportunity to answer these matters? I am clearly of the view that the answer to that question is yes.

[38] The first decision letter made it expressly clear that the reason for the petitioner's failure to satisfy the good character requirement was the failure to disclose the unspent conviction. That on its own should have drawn to the attention of the petitioner that the failure to disclose the unspent conviction was a material matter. Beyond that the petitioner was advised that should he apply within 10 years he was unlikely to be successful. This reinforces the materiality of the issue of the unspent conviction. On a fair reading of the first decision letter the petitioner should have known that the failure to disclose the unspent conviction was a material issue. The terms of the first decision letter on their own clearly give fair warning that this is a matter which may be treated as adverse to any further application.

[39] In addition at paragraph 1 of page 3 of the application form for naturalisation the importance of reading the guidance is clearly drawn to the applicant's attention. At page 15 of the petitioner's first application he declared that he had read that guidance.

[40] At page 19 of the guidance in a section headed "Good Character" the following is said:

"You must give details of all criminal convictions both within or outside the United Kingdom. These include road traffic offences, but not fixed penalty notices which have not been given in a court. Fixed penalty notices including parking and speeding offences. Drink driving offences must be declared.

You do not have to give details of any offences which are 'spent' under the Rehabilitation of Offenders Act 1974. Under that Act certain convictions may be regarded as 'spent' in the United Kingdom after certain periods of time from the date of conviction if you have not been convicted of other offences during that time. 'Spent' means that it will be ignored. A leaflet about this called 'Wiping the Slate Clean' is available from the Home Office, Direct Communications Unit, ..."

[41] Thus again the issue of the importance of unspent convictions is on a fair reading of the guidance clearly drawn to the attention of the petitioner.

[42] Given the above information which the petitioner was aware of at the time of his further application it is clear that he was given fair notice of the materiality of the issue of the unspent previous conviction. Accordingly so far as the first part of the test which Sales J observed, the respondent had to comply: namely giving fair notice. The respondent has complied with this.

[43] Turning to the issue of what opportunity he had to deal with this matter, it appears to me that he was given a fair opportunity to deal with it in the further application. In the further application or in the covering letter he could have set forth his explanation as to why he had failed to disclose the unspent conviction. He entirely failed to do so. He did not take the fair opportunity which he was given to deal with this matter, the materiality of which had been drawn to his attention. The respondent accordingly fulfilled the second part of the test laid down by Sales J.

[44] In my judgment there is nothing unfair in the way that the respondent has acted in relation to the petitioner's application for naturalisation.

[45] In the circumstances of this case there was no duty on the respondent to make the further enquiries contended for on behalf of the petitioner. The obligation of fairness did not require this. The onus was on the petitioner to satisfy the respondent as to his good character; he should have been aware of the materiality of the issue of the unspent conviction; he had an opportunity to deal with the issue in his further application. He did not take it. Against that background I am satisfied that he has been fairly treated and that fair treatment did not require the making of the further enquiries as contended for on behalf of the petitioner.

[46] I am satisfied that there is no sound basis for holding the respondent's second decision unlawful and reducing it.

[47] For the reasons I have articulated above the circumstances in the present case are materially different from those in AA (Nigeria). The critical difference is the warnings as to the materiality of the issue of the failure to disclose unspent convictions and the opportunity given to answer that concern. In these circumstances the case of AA (Nigeria) can be distinguished.

[48] With respect to the guidance, to which I was referred by Mr Caskie, that guidance was of course no longer in place at the material time rather the guidance in effect at that time was as set forth by Mr McIlvride.

[49] There is nothing in the guidance which in my view impacts on the duty of fairness having regard to the circumstances of this case.

Decision

[50] For the foregoing reasons I refuse the petition. I sustain the respondent's plea in law and repel the petitioner's. I have reserved all issues of expenses.