SIAC refuses naturalisation challenge - MWH v Secretary of State for the Home Department SN/57/2015

 

On 4 October 2017 the Special Immigration Appeals Commission (presided over by Singh J) dismissed the challenge brought by MWH, an Iraqi Kurd and Sunni Muslim, against the decision of the Home Office to refuse his application for British citizenship. MWH’s application was refused on good character grounds. No reasons were provided for the refusal on the basis that to do so would be contrary to the public interest. The case was heard in both open and closed proceedings. MWH’s open representatives advanced wide-ranging grounds of review as follows:

 

  1. The Secretary of State failed to comply with her own published policy.
  2. The decision was irrational/disproportionate/vitiated by a factual error given rise to unfairness/took into account irrelevant matters and breached the respondent’s duty of sufficient enquiry.
  3. It was taken in breach of the respondent’s duty to act in accordance with the statutory purpose and/or was taken in bad faith.
  4. It breached the applicant’s rights under Articles 8, 9 and 10 of the European Convention of Human Rights.
  5. It was unfair at common law.

 

For reasons largely rehearsed in the Commission’s closed judgment, the above grounds were all dismissed.

 

However, the Commission departed from the decision of Mitting J in MB v Secretary of State for the Home Department SN/47/2015 by holding that section 31(2A) of the Senior Courts Act 1981 (which provides that relief must be refused “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”) did not apply to applications for judicial review before SIAC. As the Commission noted, Parliament had specifically legislated to amend the Tribunals, Courts and Enforcement Act 2007 in order that section 31(2A) applied to judicial review applications before the Upper Tribunal. As stated by the Commission at [62], “The fact that there has not been any similar amendment to [the Special Immigration Appeals Commission Act 1997], which created this Commission and confers jurisdiction upon it, is telling.”

 

A copy of the open judgment is available here.

 

David Mitchell was instructed by the Government Legal Department on behalf of the Secretary of State for the Home Department