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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cao v Secretary of State for the Home Department [2015] EWHC 286 (Admin) (17 February 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/286.html Cite as: [2015] EWHC 286 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/02/2015

Mr Justice Dove :

1. The claimant is a national of China and she challenges the defendant's decision to refuse her citizenship or naturalisation. The under challenge decision was reached on 1^st April 2014 and then upheld at a reconsideration by the defendant on 7^th May 2014. The relevant facts of the case are as follows.
2. The claimant arrived in the UK on 24^th February 2003 and claimed asylum immediately upon arrival. When she made that claim she gave as her date of birth 3^rd June 1986. As a consequence that date of birth was then used on a Notice of Temporary Admission which was issued to her by the defendant at that time. This date of birth was also used in connection with the submission of further grounds in support of her claim to be a refugee which were submitted to the defendant following the refusal of her application for asylum.
3. Sometime after the refusal of her asylum claim she was introduced to solicitors and sought their advice in relation to her immigration status. She was advised to apply for Indefinite Leave to Remain ("ILR"). When her solicitors made an application for ILR her date of birth was stated to be 3^rd December 1985. That application was considered by the defendant and she was granted ILR on 17^th August 2010.
4. Just prior to the grant of ILR she had received a birth certificate from China. The birth certificate stated her date of birth as being 3^rd December 1983. At around this time she also managed to obtain a Chinese passport. She was, once more, in receipt of advice from her solicitors who suggested that an application was made for a No Time Limit biometric residence permit ("a No Time Limit application") which could be stamped into her passport and which if granted would have verified her status in the UK. In this No Time Limit application the date of birth from her birth certificate of 3^rd December 1983 was used. On 27^th April 2011 this application was refused and the following was stated in the refusal:

"On 17^th August 2010, Indefinite Leave to Remain was granted to Xue Zhen Cao, born 3^rd December 1985, a Chinese national.

You have requested that the Indefinite Leave to Remain No Time Limit stamp be transferred from the immigration status document of Xue Zhen Cao to passport G46032801 for Xue Zhen Cao, born 7^th December 1983.

Your application has been refused as the Secretary of State is not satisfied that the identity in the passport is the same as the person who has been granted Indefinite Leave to Remain in the United Kingdom."

5. Following this setback she then applied for naturalisation as a British citizen. That application was refused on 6^th February 2012. The reasons given for refusing the application were set out in the letter communicating the decision as follows:

"It has come to our attention that on 18^th March 2011 you attempted to apply for a No Time Limit vignette using a Chinese Passport issued in details other than those you have declared since your entry to the United Kingdom and subsequently issued on your settlement vignette 17^th August 2010. Furthermore, you did request these details on your application for British citizen to be the correct details.

The Home Secretary considers that your actions constitute a deliberate attempt to mislead a Government Department. As such, she cannot be satisfied that you meet the good character requirement for naturalisation and your application is refused."

6. At that point it became clear to her that her solicitors had made a mistake in the applications that they had made on her behalf. They had clearly supplied incorrect details in relation to her date of birth and that had led to the problems with her applications. She applied on 20^th February 2012 for the refusal of her application for naturalisation to be reconsidered. Following a reconsideration of her application it was refused by the defendant on 9^th May 2012. Those dealing with the reconsideration on behalf of the defendant observed as follows:

"I note what you say but can find no credible reason for your acquisition of a Chinese Passport in a different date of birth to that in which you applied for asylum and in which you were granted Indefinite Leave to Remain in the UK. You also fail to explain why you maintain your date of birth to be 3^rd December 1985 when you subsequently applied for naturalisation.

Your use of two separate dates of birth in your dealings with the Home Office and your failure to declare this to us at the time you applied for naturalisation led us to the view that you did not meet the 'good character' requirement for naturalisation and your application was refused."

7. After this the claimant sought advice from her present solicitors and they made a further application for her naturalisation as a British citizen on 19^th February 2013. This application was accompanied by a witness statement in which the claimant explained that she had passed all of her documents to her solicitor in order to prepare the application for ILR and then subsequently for the No Time Limit application. She stated that because of her poor English language skills she had entrusted all matters to her solicitor and, at the time of making the application in February 2013, she said she was unable to trace her solicitors. When she was refused on 6^th February 2012 on the basis of failing the 'good character' test she had confronted her solicitor but he had been unable, or unwilling, to provide her with any explanation as to how the confusion could have arisen in relation to her dates of birth. In the witness statement she makes clear that she had no intention of cheating or misleading the defendant or any of her representatives.
8. This application was again refused on 7^th March 2013. The reasons given for refusing the application were, again, that as a result of the provision of differing dates of birth the defendant was satisfied that there had been a deliberate attempt to mislead a Government department and that as such the claimant failed the good character requirement for naturalisation and her application should be rejected. There was a further reconsideration of that decision which was refused on 9^th May 2013. Judicial Review proceedings were commenced on 7^th June 2013 challenging the decisions of 7^th March 2013 and 9^th May 2013. That claim was stayed on the basis that the defendant would reconsider the claimant's No Time Limit applications and naturalisation application. On 1^st April 2014 the defendant upheld the decision on the No Time Limit application of 27^th April 2011 and on 7^th May 2014 the decision in relation to naturalisation was also upheld upon reconsideration. In both cases it was for the reasons that have been set out above, namely that as a result of the claimant providing differing dates of birth there had been a deliberate attempt to mislead a Government department that meant that the claimant did not meet the requirements of 'good character'. The decisions of 1^st April 2014 and 7^th May 2014 are the ones which are the subject of this challenge.

Policy

9. In relation to No Time Limit applications guidance is provided in 'Casework Instruction: NTL applications made under an identity that differs from the one in which ILR was granted'. Where a date of birth only has been changed the instruction is as follows:

"Refuse application, unless we have previously been informed of the change or the change can reasonably be attributed to a genuine clerical error i.e. 11/10/1982 instead of 10/11/1982 and the applicant provides a reasonable explanation for this"

10. The guidance goes on in relation to No Time Limit applications as follows, in so far as is relevant to the present case:

"A No Time Limit application must be refused if:

You are not satisfied the identity of the person applying for NTL is the same person as was granted Indefinite Leave to Remain, see related link: applying under a different identity…

The applicant has submitted false documentation or made false representations"

11. The defendant publishes policy guidance in relation to the 'good character' requirements. Entitled the 'Nationality Policy Guidance and Casework Instruction Chapter 18, annex D' the policy guidance was published on 9^th December 2013. In relation to deceitful or dishonest dealings with Her Majesty's Government at para 8.2 the policy guidelines provides as follows:

"8.2 Deceitful or dishonest dealings with Her Majesty's Government

The decision maker will normally refuse an application where the person has attempted to deceive or otherwise been clearly dishonest in their dealings [with] another department of government.

Examples might include but are not limited to:…

d. providing false or deliberately misleading information at earlier stages of the immigration application process (e.g. providing false bio-data, claiming to be a nationality they are not or concealing conviction data). Where this applies, a refusal under deception grounds may also be merited."

The Law

12. In circumstances such as these it is necessary for the defendant to establish that the deception by the claimant on which she relies in her decision has in fact occurred. In short, the burden of proof rests with the defendant. In exercising her powers in relation to applications of this kind it is also necessary for the defendant to act fairly. As was observed by Sales J (as he then was) in Thamby v Secretary of State for the Home Department [2011] EWHC 1763 (Admin) the parameters for that fair approach are as follows:

"67. In considering an application for naturalisation, it is established by the first Fayed case that the Secretary of State is subject to an obligation to treat the applicant fairly, which requires her to afford him a reasonable opportunity to deal with matters adverse to his application. In my view, that obligation may sometimes be fulfilled by giving an applicant fair warning at the time he makes the application (e.g. by what is said in Form AN or Guide GAN) of general matters which the Secretary of State will be likely to treat as adverse to the applicant, so that the applicant is by that means afforded a reasonable opportunity to deal with any such matters adverse to his application when he makes the application. In other circumstances, where the indication available in materials available to an applicant when he makes his application does not give him fair notice of matters which may be treated as adverse to his application, and hence does not give him a reasonable opportunity to deal with such matters, fairness will require that the Secretary of State gives more specific notice of her concerns regarding his good character after she receives the application, by means of a letter warning the applicant about them, so that he can seek to deal with them by means of written representations (as eventually happened in the Fayed case). Where there is date about whether the obligation of fairness has been fulfilled by means of the indications given by the Secretary of State at the time an application is made, she may be well advised to follow the procedure adopted for the second Fayed case so as to avoid the need for argument about the issue on Judicial Review proceedings."

13. In addition to the requirements of fairness the defendant's decision in relation to an application for naturalisation is susceptible to challenge on the other conventional public law grounds of review.
14. It is well established that the defendant is entitled to adopt a policy in relation to how she will reach her decisions in respect of applications of the kind involved in this challenge. In the recent case of Hiri v Secretary of State for the Home Department [2014] EWHC 254 Lang J having set out the principles of not unlawfully fettering a public law decision maker's discretion from De Smith's Judicial Review provided the following helpful analysis:

"35. How do these principles apply in the circumstance of this case? In my judgement, in deciding whether an applicant for naturalisation meets the requirement that 'he is a good character', for the purposes of the British Nationality Act 1981, the defendant must consider all aspects of the applicant's character. The statutory test is not whether applicants have previous convictions – it is much wider in scope than that. In principle, an applicant may be assessed as a person 'of good character', for the purposes of the 1981 Act, even if he has a criminal conviction. Equally, he may not be assessed as a person 'of good character' even if he does not have a criminal conviction. Plainly, criminal convictions are relevant to the assessment of character, but they are likely to vary greatly in significance, depending upon the nature of the offence and the length of time which has elapsed since commission as well as any pattern of repeat offending…

36. The defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her case worker but it should not be applied mechanistically and inflexibly, there has to be a comprehensive assessment of each applicant's character, as an individual, which involves an exercise of judgement, not just ticking boxes on a form."

15. Whilst that case was concerned with an applicant who had a criminal conviction the principles of the wide scope of the matters to be taken into account in the exercise of discretion and the importance of not applying a policy mechanistically and inflexibly are of general application.

Submissions and Conclusions

16. On behalf of the claimant Mr Mahmood submitted that there were clear errors of law in the decision that the Secretary of State reached. He contended that there was no evidence to establish an intention to deceive or mislead the defendant on the basis that the claimant had fully explained, in particular in her later applications, that the errors and mistakes in relation to her date of birth had been created by her solicitors and that she had never intended to mislead the defendant. Given her poor language skills having recently arrived in the UK it was, he submitted, understandable that these difficulties had arisen and the potential for these difficulties to create misunderstandings in the claimant's applications had not been taken into account by the defendant. Further he submitted, in reliance upon the case of Thamby, that the defendant had failed to act fairly in relation to the claimant's case and failed to offer her an appropriate opportunity to explain matters before the earlier refusals had occurred.
17. Once the first refusal occurred on 24^th April 2011 he submitted that the defendant's decision-making had escalated unaccountably into inflating the criticism in relation to the dates of birth provided into one pertaining to the claimant's honesty. In connection with this and earlier arguments he drew attention to the fact that the Secretary of State had granted ILR when she was aware of two different dates of birth being provided by the claimant and she had been undeterred from doing so. He submitted that the decision making process was redolent of the policy being applied in a rigid and mechanistic fashion, in particular since the only error on which the points in relation to identity were based was that pertaining to the claimant's date of birth. There were many other ways of being satisfied of the claimant's identity such as fingerprints or facial characteristics which demonstrated that the issue in relation to the date of birth was not capable of justifying refusal.
18. In response, Ms Bretherton submitted that providing three different dates of birth to the defendant was more than sufficient factual material to justify the finding of having deliberately misled the defendant. The provision of an inaccurate or false date of birth was a matter which was exceedingly important to the defendant in seeking to ensure reliable immigration control. Given that the criteria for ILR and for naturalisation were different there could be no presumption that ILR having been granted (even on the basis of the provision of two different dates of birth in her immigration history at that point) that naturalisation would follow. Furthermore, even though the defendant could have refused the No Time Limit application on 27^th April 2011 for having made false representations, the fact that she did not did not preclude the defendant in her later decision relying upon that factor. Thus, she submitted, there was more than ample evidence upon which the defendant could rely in reaching the conclusions she did in relation to both the No Time Limit and also the naturalisation applications.
19. Having considered the matter carefully I am not satisfied that there is any substance in the tenacious submissions made by Mr Mahmood on behalf of the claimant. Firstly, whilst it is correct that the burden of proof rested with the defendant in this case, it is important to recall that the facts upon which the defendant relied are not disputed. It is in effect a matter of record that three different dates of birth were provided to the defendant by the claimant during the course of the various applications that were made. What follows is that in my view, having been provided with three different dates of birth without any attempt to explain the position at the time when they were provided the defendant was entitled to draw the inference, which she did, that she was, at the time of the provision of this information, being intentionally misled. I further accept the submission made by Ms Bretherton that provision of an accurate date of birth is a matter of considerable importance to the defendant and that she is entitled to attach significant weight to it in seeking to be sure about an applicant's identity. This is borne out by the policy and guidance which I have set out above which only overlooks errors in dates of birth if they have been previously notified or are clearly clerical errors which have been fully explained. The difficulties which can arise for the defendant in administering her system of immigration control without accurate information in relation to dates of birth is, in my view, obvious. An applicant's date of birth is a very important ingredient in establishing his or her identity.
20. Similarly, I am unpersuaded that there is any substance in the suggestion that the defendant acted unfairly in relation to the claimant's applications. In particular in the subsequent reconsiderations the claimant was given the opportunity to explain how it had come about that the differing dates of birth had been provided and it is, equally, clear that the defendant has been unpersuaded that the claimant's accounts amounts to an acceptable explanation. These were decisions that, in my view, the defendant was entitled to reach on the basis of the material placed before her. I am unable to detect either unfairness or irrationality in the conclusion that she reached.
21. Similarly I am un-persuaded that there is any evidence of an inflexible or mechanical application of the policy of the kind that flawed the decision in the case of Hiri. It is clear that the provision of three different dates of birth during the course of separate applications to the defendant is a matter which engages the policies which I have set out above which, indeed, are principally aimed at cases where a date of birth might have changed once as opposed to being provided differently on three separate occasions. Furthermore, the criticism directed to the need for the claimant's character to be assessed as a whole is not made out in this case since, applying the relevant policy, the defendant was entitled to conclude that the discrepancies in relation to the dates of birth which the claimant had provided were the single most important and decisive factor in reaching a conclusion as to whether or not she met the 'good character' requirement.
22. For all of these reasons I am unable to accept that there was any error of law in the defendant's decision in this case and for the reasons I have given this application for Judicial Review must be dismissed.