Naturalisation and criminality
The troubling case of R (ex parte Howard) v Secretary of State for the Home Department  EWHC 1023 (Admin).
Mr Justice Swift handed down his decision in this case on Friday 23 April 2021 and taken as a whole, the case can only be described as a somewhat troubling, though well worth a read for those interested in British nationality law. Despite the complexities of the matter, particularly the evolution of the Claimant’s grounds for review, former First Treasury Counsel Jonathan Swift QC has done a good job of wading through issues and what emerges is a well written and concise judgment.
The facts of the case are the first troubling issue and get ready because what follows must make for a fairly grim reading for the Defendant Secretary of State for the Home Department. The now-deceased Claimant, Mr Hubert Howard, was born in Jamaica back in 1956, when it was still a part of the UK and Colonies for the purposes of the British Nationality Act 1948, and therefore at birth, he was a citizen of the United Kingdom and Colonies (“CUKC”). At the time of his birth, that status granted Mr Howard exactly the same category of British nationality as he would have received if he had been born in the UK itself.
Like plenty of other young West Indians at this time, he emigrated to the UK at a young age, arriving in November 1960 aged less than 4, where he remained – working, paying his taxes and in time, having children of his own – until his death from leukaemia, on 12 November 2019, aged 63. Given his age on entry, it is unlikely that he remembered anything of his short residence in Jamaica and further, as the young Mr Howard entered the UK as a CUKC prior to the Immigration Act 1962 coming into force, he was not subject to any immigration control whatsoever on entry. At the date of his death, he had been a UK resident for 59 years.
Now, during Mr Howard’s residence in the UK, and probably unbeknownst to him at the material times, significant changes to both the British Empire and UK immigration law conspired in a most unfortunate manner to eventually render him a Jamaican citizen resident in the UK who did not have any documentary evidence of his right to live here – leading to, as we discover in the judgment, him losing his job with the Peabody Trust in 2012 as he could not prove his right to live and work here, despite a glowing reference from their HR Director. The sequence of his applications for documentary evidence of his right to live in the UK, in the form of applications for recognition of his settled status and thereafter for British citizenship, is somewhat complex and will be explained in more detail below, but the subject of this judicial review was a refusal to naturalise the Claimant as a British citizen after an application made in 2018, pursued by Mr Howard’s daughter after his death.
Mr Howard’s experience is an all-too-familiar tale, sad to relate, as a member of the “Windrush generation” (named after HMT Empire Windrush, the ship that brought about 800 Caribbean immigrants from Kingston, Jamaica in 1948) – the manifest injustice done to Mr Howard and many still-living migrants, caught unfairly in the recent hostile immigration environment imposed by 21st Century Home Secretaries, has been the subject of much rightly anguished debate in the UK in the last few years, in addition to an independent review into Home Office practices – see this URL for more details:
The reasons for his unfortunate situation of being without status documentation can be very briefly summarised – he lost his status as a CUKC when Jamaica became an independent Commonwealth country in 1962, becoming in its place a citizen of Jamaica (a status he retained until his death), but he neither applied to re-establish his CUKC status under the Immigration Act 1971 nor did he apply to become a British citizen before 1 January 1988, as provided for by the British Nationality Act 1981.
Given his age on arrival, and UK practice on status documentation before the Home Office crack-down in the early 21st Century – the UK is still one of the few countries in the world where there are no national ID cards – these omissions are hardly surprising, and it cannot be sensibly said Mr Howard was at fault for it. Indeed, the tragedy of the imposition of the hostile environment on Mr Howard and others like him lies in the dissonance between his nationality on entry to the UK and his subsequent treatment by the Home Secretary – and also, in the abrupt, and doubtless bewildering, need for him to prove his right to be here (which he most assuredly had) after he had not been required to do so for more than 40 years.
Rather poignantly, Mr Howard seems to have made 2 applications for British passports in the first decade of this century, which were turned down for the unimpeachable reason that he was not actually a British citizen. However, he was then told, in 2012, that he would also need to apply for indefinite leave to remain (ILR), which was plainly not correct, as given his circumstances – that it to say, as he was settled in the UK on 1 January 1973 – s. 1 (2) Immigration Act 1971 caused him to be treated as if ILR had been given on that date (the coming into force of the 1971 Act).
Only belatedly, in May 2018, was this elementary issue accepted by the Home Office and the fact that he had actually had ILR for 45 years thereby recognised by the very government department responsible for administrating immigration control! It is also worth noting at this point that during the Secretary of State’s inept handling of his application for an ILR Biometric residence permit in 2014. Mr Howard was asked to provide at least one piece of evidence for each of the years 1965 – 2014 to prove his residence here, a clearly inane request in the circumstances, bearing in mind he was 5 in 1965. Keep in mind this 2014 application – it’s unfortunate that the firm of solicitors he engaged to make it seem not to have followed up on its refusal for want to evidence, because had he been recognised as having ILR in 2014 or 2015, the naturalisation problem which arose subsequently might not have happened at all.
Nevertheless, and despite being unwell – his leukaemia was diagnosed in 2014 but Mr Howard was clearly not a man to give up without a fight – once he was recognised as having had ILR since 1973 in 2018, he applied for naturalisation as a British citizen under s. 6 British Nationality Act 1981, which as noted above is the subject of this judicial review.
There isn’t space here to go into much detail about naturalisation, save to note that there is a “good character” requirement which requires the Secretary of State to assess the applicant’s past actions and if they fail the test, refuse to naturalise the applicant. The courts have famously described this test as “..rather nebulous..” but having committed criminal offences prior to application often causes problems for applicants as they are more likely to thereby be considered as “..not having shown respect for, or is not prepared to abide by, the law…” and therefore are less likely to be regarded as of good character, naturally depending on the nature of the offences committed. This, unfortunately, was the position that Mr Howard then found himself in.
That was because Mr Howard had a criminal record. It’s difficult to reconstruct his antecedents precisely from the judgment, but it seems that in 2018, his offending was divided into three groups, none of which ever resulted in a sentence of immediate imprisonment. As a young man aged between about 18 and 21 he was convicted on three occasions of burglary and theft, then in his early to mid-thirties, he was convicted on three occasions of the possession of Class B controlled drug, and in 2000 and 2018 he was convicted of a breach of s. 4A Public Order Act 1986 (using threatening, abusive, and insulting language) and common assault, respectively.
With the sole exception of his conviction for common assault in 2018, all the offences were dealt with either by fines or the form community-based sentence then in use. The common assault resulted in a suspended sentence of 12 months imprisonment. In view of the maximum sentences for a single offence of theft and burglary being 7- and 14-years’ imprisonment respectively, this is a very modest record of offending.
Nevertheless, and after some deliberation, the Secretary of State applied her published “Nationality; good character requirement” policy to Mr Howard’s 2018 naturalisation application and refused it because he was not of good character, primarily because he had received a suspended sentence within the three-year period prior to his application.
Now, before 2012, only convictions for which the sentences were not “spent” under the Rehabilitation of Offenders Act 1974 counted against an applicant’s good character, but even had Mr Howard applied for naturalisation in 2014 or 2015, the new policy of requiring a three-year gap would not have disadvantaged him, as at that time his last conviction with a community sentence was back in 2000. Unfortunately, he didn’t, and the conviction in 2018 did end up counting against him, arguably, in part, because of the Defendant’s incompetence in 2012 and 2014, but more of that later.
The 2018 naturalisation refusal was challenged on 2 grounds. First, that by applying the usual good character requirement in respect of criminality his application, in view of his status as a member of the Windrush Generation, was discrimination contrary to Article 14 of the European Convention of Human Rights in respect of his Article 8 right to a family and private life. Second, that the policy itself, which did not make specific allowance in the good character requirement for the Windrush Generation was unlawful as it was irrational. Here, a little further explanation is required.
The April 2018 statement mentioned above was fairly convincing mea culpa by the then Secretary of State for the Home Department Amber Rudd on her department’s mishandling of the Windrush Generation status documentation problems, including a commitment to ensure that those such as Mr Howard (who was, technically, the child of a Windrush Generation emigrant) would now able to acquire British citizenship by naturalisation should they wish to do so, quickly, without payment of a fee, without needing to pass a Life in the UK test and with proactive assistance by Home Office officials. However, by the time the department came to finally review its good character criminality policy as applied to the Windrush Generation, the revolving door at Marsham Street had turned and the new Home Secretary (Sajid Javid) declined to follow his predecessor’s recommendation to also lower the criminality threshold for pre-1973 settled applicants for naturalisation.
Mr Justice Swift dealt with the Human Rights ground in relatively short order by finding that the statutorily imposed “good character requirement” could not (in effect) be read out of existence by using the interpretive section of the Human Rights Act, section 3, nor does the Defendant’s published policy which guides the assessment of character fail to pursue a legitimate objective, nor does it pursue a legitimate objective in an unreasonable way – the good character requirement is an unexceptional one, and the policy the Secretary of State uses to implement it is a reasonable and proportionate way to do so.
However – and this is the second troubling issue – he also found that failure of Sajid Javid to lower the good character criminality requirement for Windrush Generation members seeking naturalisation, despite his predecessor’s April 2018 commitments, was irrational.
The judgment describes this ground of challenge as a “common law” one, but it is arguable that the Court has followed the classic Convention Right “super-Wednesbury” approach to assessing the lawfulness of maintaining the criminality policy unchanged for the Windrush applicants in spite of the mea culpa statement and its commitments, in as much as the phrase in paragraph 35 which states “…there is no sufficient reason to explain why, when it came to the good character requirement, no significance was attached at all to the long-residence and integration of [the Windrush Generation]…” is redolent of a need for the Secretary of State to identify a competing public interest which might justify its retention, and it’s proportionality if so identified.
This is somewhat problematic as it’s unclear which Convention right or rights are or might be being infringed by failing to naturalise a settled foreign citizen, and even if the rationality review carried out by the High Court is in fact a traditional irrationality analysis, can it really be said that no reasonable Home Secretary would retain the existing criminality threshold when the April 2018 speech did not specifically allude to such circumstances and the affected applicants were not being treated worse than any other applicant for naturalisation with a criminal record? Was that decision not to lower the criminality threshold for Windrush applicants “..so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it…”?[i]
I rather think not and would confidently predict a challenge to this decision in the Court of Appeal were I not mindful of political sensitivity around Windrush.
That’s not to say the refusal was lawful, of course – but surely a more appropriate ground of review would have been the fact that the refusal of Mr Howard’s application for naturalisation in 2018 seemingly took no real account at all of the Secretary of State’s appalling mishandling of his application for an ILR BRP in 2014, which had it been properly considered would have confirmed his ILR status at that time and then in all probability led to an immediate, successful naturalisation application well before his 2018 conviction? This is a classic failure to take into account a relevant, highly material matter in his application and it is eminently arguable that the refusal decision in question also failed to engage with the entire litany of problems he experienced as a result of the Secretary of State’s mishandling of his status applications, going back to the 2012 statement that he needs to apply for ILR first when he had already had it for 39 years.
In any event, and pleasing to relate, the Home Secretary belated granted Mr Howard British citizenship “on an exceptional basis” in October 2019, albeit only a few weeks before his death. It is to be earnestly hoped that the Secretary of State scrutinizes the judgment in his case most carefully, in order to spare others from the unnecessary difficulties which Mr Howard so steadfastly bore, and against which he eventually and entirely deservedly triumphed.
Update – 26 April 2021
The claimant’s current solicitors – Deighton Glynn Pierce – has said that the Defendant is seeking permission to appeal.
By R. S. Hopkin