Overturning a citizenship refusal based on character concerns is very difficult

Since the British Parliament has given the Home Office the absolute right to unilaterally refuse a Citizenship application on character concerns, it is extremely difficult for applicants to legally overturn a decision made on this basis. This is manifested in the recent Court of Appeals decision in R (Amin) v Secretary of State for the Home Department [2022] EWCA Civ 439.

Background

The background of this case highlights the aforementioned point. Mr. Amin is an Iraqi national who was befriended with Mullah Krekar since the 1970s. Mullah Krekar is the leader of Ansar al Islam, which is “regarded as a group with extremist views”. Mr. Amin visited Mullah Krekar in Norway in 2004, and ended up marrying his daughter there at the time. He also lived with members of Ansar al Islam in London during 2005. Largely due to his ties with individuals regarded as extremists, Mr. Amin was  placed under a control order restricting his movements and contact with others in October 2005. This was eventually overturned by Mr. Amin in court, but a new, lawful control order was then placed on him in August 2006 which lasted until July 2008. Mr. Amin has however never faced any criminal charges.

The Home Office turned down Mr. Amin’s application to naturalize as a British citizen based on character concerns arising out of his association with groups and individuals with extremist views.  While the Home Office invoked no proof that Mr. Amin maintained or still has extremist views himself, it assessed that he must have been aware of the extremist views of the people and groups he associated with. In countering the Home Office’s position, Mr. Amin argued that his association with Mullah Krekar was based on family ties which were reinforced by his marriage to the Mullah’s daughter in 2004, and that he did not care for or share his father in law’s political views. In any case, Mr. Amin argued, since he subsequently divorced with the Mullah’s daughter, he had no further contact with him or other members of Ansar Al Islam. In conclusion, Mr. Amin argued that the Home Office’s decision to reject his citizenship application was unlawful, as it was irrational to assume that he shared the views of people he associated with back in 2005, and during the 14 years since then anyway had no contact with any individuals or groups regarded as “having extremist views”.

Court of Appeal’s decision

The Court considered this argumentation but decided that  it does “not feel it negates any of the reasoning behind the refusal”. In regard to the passage of time, the Court stated: 

“There is no fixed or set period after which earlier associations should be disregarded in deciding whether a person is of good character. The guidance does not set any fixed period. Nor, realistically, can there be any such fixed period. Whether such associations should be disregarded will be a question of fact in each case. The question will often be whether the applicant may continue to share, or approve of, the extremist views of those with whom he has been associating in the past. [Paragraph 27]”

Comment

While the Court agreed with the Home Office’s assessment that Mr. Amin may have shared the extremist views of the people and groups he was associating with back in 2005, it also found no positive evidence that these views may have changed and concluded that they “may have remained substantially the same”, notwithstanding marriage and family. The Court noted in its decision:

“The question of whether the respondent is satisfied that the applicant is a person of good character, such that he should be regarded as eligible for the grant of British citizenship, necessarily involves an evaluation or judgment on the part of the Secretary of State. Parliament has assigned that judgment to the Secretary of State. Unless her decision is irrational, or exhibits some relevant failure to observe public law principles, the decision as to whether she is satisfied that the person is of good character in this context is a matter for the Secretary of State. Further, it is for the applicant to satisfy the Secretary of State that he is of good character; it is not for the Secretary of State to prove that he is not of good character. [25]”

This may seem surprising, but it is actually on the applicant to prove that he is of good character if the Home Office’s decision is negative. Given that the Court’s hurdle for overturning a Home Office decision is so high and difficult for the applicant to overcome, the only recourse for applicants is to argue that the Home Office’s decision is irrational. This was the point of Mr. Amin’s argumentation, but the Court found that the Home Office’s character concerns were rational  and ruled in its favour.