Another failed challenge to the good character citizenship requirement

R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 is another valiant but failed attempt to challenge the Home Office’s good character policy in relation to applications for British citizenship.

The issue in this case was whether the policy of looking back at a person’s immigration status in the decade prior to the application was lawful. Mr Al-Enein had been in the UK without valid leave between 20 November 2007 and 27 January 2010, when he was removed to Lebanon. He returned to the UK lawfully in 2012 as the fiancé of a British citizen and subsequently progressed to indefinite leave to remain. He applied for naturalisation in June 2015, but was refused for failing to meet the good character requirement due to non-compliance with UK immigration laws in the decade prior to application.

The particular challenge attempted here was to argue that the British Nationality Act 1981 already sets out a specific time period over which an applicant for naturalisation must have been resident in the UK and not in breach of the immigration laws. That period is three years for spouses/civil partners of British citizens, or five years for everyone else. This is what Parliament decided in enacting the legislation. But then the Secretary of State, using his or her (I lose track) statutory discretion to determine whether or not a person is of good character, is actually expanding that time period by a further seven or five years depending on the category. Doing so, it was argued, is ultra vires.


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