Naturalisation as a British Citizen - A wide discretion

The Special Immigration Appeals Commission has given an open judgment in relation to the statutory review of decisions by the Secretary of State to refuse applications for citizenship by relatives of Bashar Al-Assad, in the case of LA, MA, RA, SAA v Secretary of State for the Home Department SN/63, 64, 65 and 67/2015.

Section 6(1) of the British Nationality Act 1981 gives the Secretary of State the discretion to grant a certificate of naturalisation to a person who fulfils the requirements, ‘if he thinks fit’.

This blog post focuses on the public interest aspects of the Secretary of State’s discretion.

Background

LA is married to Refaat Al-Assad, the paternal uncle of Bashar Al-Assad, brother to Hafez Al-Assad. MA and SAA are their sons. RA is Refaat Al-Assad’’s son from another marriage. LA, SAA and RA made applications to naturalise as British Citizens. MA (a minor) made an application to register as a British Citizen.

LA’s  application was refused on 3 January 2017, over 3 years after her application was made. During this time, her solicitors requested information regarding the delay and to be informed of the gist of any concerns relating to the application so that the applicant could respond. LA’s application was refused in accordance with the Nationality Instructions which allowed refusal of citizenship on the basis that it would not be in the public interest. The decision stated:

“You are the wife of Refaat Al-Assad, the uncle of President Bashar Al-Assad of Syria. Although widely reported as estranged from Bashar Al-Assad, Refaat is the brother of Hafez Al-Assad (the late former president of Syria). Refaat was a well- known and prominent member of his brother’s regime during the 1970s and 1980s

– a regime that is widely held to have committed crimes against humanity.

Although it is not possible to assess the exact nature of your current relationship with Bashar Al-Assad and the Syrian regime, it is noted that the regime has become inextricably linked over the last few decades with the extended Assad family.

The UK plays a prominent and leading role in Syria. It is a key member of the Syria Support Group and leads at the UN Security Council and Human Rights Council to secure resolutions that condemn regime activity against civilians.

In light of the above the Home Secretary has determined that to grant you a certificate of naturalisation would have an adverse impact on the UK’s international relations and therefore it would not be in the public interest to grant you British Citizenship. “

The other applications were refused on public interest grounds with similar reasons. MA’s application was also refused in accordance with the guidance on the basis that his future did not clearly lie in the UK and there were no grounds to exceptionally exercise discretion in his favour.

The refusal decisions

The Home Office requested advice from the FCO regarding the applications. The FCO recommended refusal based on the applicants’ links to the Assad regime. It made it clear that it had insufficient information to assess the exact nature of their relationships to Bashar Al-Assad’s regime. However, it emphasised that the extended Assad family and the regime had become ‘inextricably intertwined’.

A submission was made to the Secretary of State on the basis of the FCO information. This advised that LA and RA met the statutory requirements but MA and SAA did not. It recommended that the Secretary of State should refuse citizenship to all of them due to the ‘damage likely to be caused to the UK’s foreign policy aims, credibility and international relations due to the predicted reaction of the Syrian opposition and other international partners‘. Family members of Assad were likely to be perceived as close associates of his regime and granting them citizenship would not be in the public interest ‘due to the signal this would send to the Syrian opposition and other international partners, resulting in damage to the UK’s international relations’

The nature of the discretion

The Commission reviewed the authorities, finding that section 6(1) confers a wide discretion on the Secretary of State. It is not a narrow, back-stop discretion given that the starting point is that no-one is entitled to be naturalised, even if they meet the statutory criteria.

The Secretary of State was entitled to devise a policy that rationally permitted refusal on public policy grounds, which are not confined to issues of good character. The grounds, as set out in the Nationality Instructions were lawful, and in accordance with the section 6(1) discretion. In particular, these permitted refusal based on an adverse impact on international relations.

The Secretary of State was reasonably entitled to seek and act on advice from the FCO on the likely impact on the UK’s foreign relations of the applications being granted. It was open to her to come to the decisions she did on the basis of the FCO’s advice in view of their institutional competence. The decisions were therefore rational.

Did the Secretary of State act unfairly?

The case of Fayed (in line with other case-law on the public law duty of fairness) made it clear that fairness required the applicants to be told about areas of concern in naturalisation applications where all the statutory criteria were met. This was also the case where the only reason for refusal was on the basis of the ‘good character’ requirement. Otherwise, in circumstances where the applicant could not deduce any concerns that may be held (e.g. from the application form) they would be unable to make their case and provide information that may influence the decision-maker.

The Commission found that the Applicants should have been given an opportunity to address the Secretary of State’s concerns prior to her making her decision. The decision-making process was therefore unfair.

A number of factors reinforced this conclusion, including the fact that they were not alerted to the possibility that their membership of the Assad family may lead to refusal, LA and MA’s solicitors asked to be told of concerns, the Secretary of State could have disclosed these prior to making the decisions, the Applicants were unable to make representations on their links with the Assad regime and the likely effect on international relations of a grant and there was no administrative review process available following the decisions.

Outcome

Having found that the Secretary of State had acted unfairly, the Commission went on to consider relief. It was satisfied that if she had acted fairly, she would still have reached the same decisions. This was because:

1. It was the Applicants perceived links to the Assad regime that would damage the UK’s international relations. Therefore, any representations they may have made about their actual links would not have affected the result.
2. Even if they had been given the chance to submit material in advance of the decision (such as an expert report on the likely foreign policy implications), the Secretary of State would have preferred the assessment of the FCO, and would have been entitled to do so.

Comment

This decision makes it clear that the discretion of the Secretary of State is a wide one – British citizenship by naturalisation is a privilege and not a right. Parliament has conferred a wide discretion on the Secretary of State. In this case each of the applicants held ILR and the Secretary of State was advised that there were no grounds to revoke this.

An uncomfortable result of this means that citizenship can fairly and rationally be refused on the basis of matters unconnected to the applicant’s own personal conduct.

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