In the matter of MB v SSHD SN/47/2015, an Algerian national, challenged the refusal of his naturalisation application. The case was heard before the Special Immigration Appeals Commission ("SIAC") and two judgments were given, a public judgment and a closed judgment which is not public (the contents of which are not known to this firm).
MB's immigration history in the UK spans 24 years and includes first arriving in the UK in 1993 and claiming asylum on the basis of fearing persecution for political reasons at the hands of the Algerian State as an active member of the Front Islamique du Salut (FIS). MB was not granted asylum in the UK but later applied as the spouse of a British citizen and was granted exceptional leave. MB was granted indefinite leave to remain in the UK in 2003. MB has five children from the marriage but divorced from his wife in 2012.
MB was first applied for naturalisation as a British citizen in 2006 and was refused in 2008 on the basis that he did not meet the requirement of good character. No detailed reasons were provided on the basis that it would pose a risk to national security to provide reasons. This refusal was not challenged.
In 2009 MB made a second application to be naturalised as a British citizen. In 2010 he was again refused on the ground that he did not meet the good character requirement. Again no reasons were given, on the basis that it would be contrary to the public interest.
In July 2010 MB sought to challenge the refusal by way of a judicial review claim. The hearing of the case was delayed pending a leading case being decided, however the leading case has not and will not be decided. In 2015 the refusal was certified under the SIAC Act 1997. When the SSHD makes a decision in reliance, wholly or in part, in reliance on information that should not be made public in the interests of national security an applicant can apply to SIAC to have the decision set aside. MB proceeded to challenge the refusal before SIAC.
The judgment recognises that the good character requirement is rather "nebulous" and that there is an obligation of fairness on the SSHD which in many cases will require applicants to be notified of areas of concern before an application is refused. The SSHD should identify the subject of concern to enable the applicant make such submissions as they can. However, the SSHD is relieved from disclosure where to put the queries to the applicant would involve disclosing matters which are not in the public interest to disclose. For example, where the disclosure would trigger national security concerns or for diplomatic reasons.
The applicant's case was that:
- in cases of terrorism the good character requirement lacks legal certainty;
- the SSHD failed to identify areas of concern;
- SSHD had not provided adequate reasons;
- SSHD failed to take into account material considerations including MB's own explanation and the expert report; and
- an infringement of Article 8 ECHR procedural requirements.
The concerns regarding MB were relating to terrorism, when asked on the form regarding any involvement in terrorist activities MB had answered no. The inclusion of these questions on the form and the provisions of the Terrorism Act 2000 were publicly available with the effect that SIAC considered that it was clear to MB what the SSHD's areas of concern were.
During the course of the litigation the SSHD made two disclosures, namely that the applicant was considered to be a member of a proscribed terrorist organisation and that they had a certificate of allegiance for MB for this organisation (the GIA). SIAC found that the fact that this additional information was not provided at the time his application was being considered was not unlawful. However, the full reasons for this were provided in the closed judgment.
SIAC found that MB's explanation and the evidence submitted would not have led to the outcome of his naturalisation application being substantially different. The challenge was dismissed on all grounds.
If you are considering making an application for naturalisation and have any concerns regarding meeting the good character requirement we strongly advise you to seek legal advice at the earliest opportunity. Gherson can be contacted by telephone on 020 7724 4488 or via our contact form.
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