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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 40
P1195/23
OPINION OF LORD LAKE
In the Petition of
SHORSH MOHAMMADI (AP) (F/E)
Petitioner
for
Judicial Review of decision by the Secretary of State for the Home Department
Petitioner: K Forrest, advocate; Drummond Miller LLP
Respondent: S Crabbe, advocate; Office of the Advocate General
1 May 2025
[1]
The petitioner has indefinite leave to remain in the United Kingdom and has applied
for naturalisation as a British Citizen. As part of his application, he sought exemption from
the requirements to have knowledge of English and knowledge of the way of life in the
United Kingdom. The requirements for knowledge of life and language are referred to by
the acronym KOLL. The respondent refused the petitioner's application for exemption and
refused the application for naturalisation on the basis that the KOLL requirements were not
met. The petitioner seeks review of the decision not to grant him exemption form the KOLL
requirements. The challenge is made on the basis, (1) that the respondent failed to apply
Home Office Policy and (2) the respondent failed to take material matters into account or
failed to state reasons why those matters were discounted.
2
[2]
The issue of acquiring British Citizenship by naturalisation is regulated by the British
Nationality Act 1981, section 6. Subsection (1) of that section provides that the Secretary of
State may grant a certificate of naturalisation if satisfied that the applicant fulfils the
requirements of Schedule 1 of the Act. Paragraph 1(1) of Schedule 1 stipulates five
requirements for naturalisation. Two of them are as follows:
"(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic
language;
(ca) that he has sufficient knowledge about life in the United Kingdom;"
Paragraph 2 of the Schedule states:
"If in the special circumstances of any particular case the Secretary of State thinks fit,
he may for the purposes of paragraph 1 do all or any of the following things,
namely-- ...
(e)
waive the need to fulfil either or both of the requirements specified in
paragraph 1(1)(c) and (ca) if he considers that because of the applicant's
age or physical or mental condition it would be unreasonable to expect
him to fulfil that requirement or those requirements."
[3]
The Home Office have published guidance on the KOLL requirements and the basis
on which exemption will be granted from the requirement. In relation to the exercise of
discretion permitted by paragraph 2 of the Schedule, it states:
"You must exercise discretion if the applicant:
·
is suffering from a long-term illness or disability that severely restricts
their ability to learn English or prepare for the Life in the UK test
·
has a mental condition which prevents them from speaking or learning
English to the required standard
Where a person provides evidence that they would be unable to satisfy one part of
the requirement, it does not automatically mean that they will be unable to meet the
second part of the requirement. It may be that their condition would make it
unreasonable for them to prepare and complete the Life in the UK test but due to the
different nature of how English language is assessed they are still able to
demonstrate that they satisfy the English language requirement.
3
How to exercise discretion
You must consider how the condition would prevent the applicant from taking the
Life in the UK test or learning English. For example, discretion may be appropriate
where an applicant:
·
is deaf
·
is a person without speech
·
has a speech impediment which limits their ability to communicate in the
relevant language
Each application must be considered on its own merits and will depend on the facts
in each case including whether the applicant is a national of a majority
English-speaking country.
Life in the UK test centres, and many colleges can cater for a variety of disabilities
such as blindness. An applicant may be able to do the test even if they produce
evidence of a disability.
You must also consider whether an applicant's condition would prevent them from
meeting both parts of the requirement or just one.
Evidence of physical or mental condition
If an applicant claims to have a physical or mental condition, they must provide
original and current medical evidence from a medical practitioner. This must
include the medical waiver proforma. Where a request for an exemption does not
include a medical waiver proforma completed by a relevant medical practitioner you
must provide the applicant with the opportunity to provide this unless the
application falls to be refused on another ground.
Where an applicant fails to provide a completed waiver despite the document being
requested, you must consider whether they satisfy the knowledge of English
language and life in the UK requirements based on the information available. Any
refusal must make it clear that they do not meet the language and / or life in the UK
requirements and have not provided the specified evidence to be considered for a
waiver from these requirements."
[4]
When the petitioner applied for naturalisation as a British Citizen, he submitted, as
part of his application, form "Waiver KOLL" seeking exemption from the requirements
noted above. It is a requirement stated on the form that it is completed by a GMC registered
medical practitioner. The petitioner's form included the following (the indented text in
italics being what was completed by his general practitioner):
4
"What is the nature of the person's condition?
Amputation right leg - shot in Iran. Has a prosthetic leg - associated pain + reduced mobility
Chronic low mood and depression
Severe migraines
Poor concentration
How does their condition impact on their daily life?
Mobility reduced. Walks at the slow pace with considerable pain
Struggles with cooking. Unable to stand and often forgets to put cooker off properly
Memory issues, poor concentration, low mood. Has very little help - friend visits one / week.
Alone rest of time.
Frequent migraines can last up to a week.
How would this condition prevent them from learning English? There are a number
of ways to learn English, including classes and home study. The language
requirement for citizenship and settlement is only for speaking and listening
skills - not reading and writing
Has limited English language skills
Poor concentration and memory issues past 10 years has made it difficult to improve his
English skills.
How would this condition prevent them from studying for the knowledge of life in
the UK test? The study materials are available in a number of formats, including
audio
Poor concentration
Poor understanding of English and technology
How would this condition prevent them from sitting the knowledge of life in the UK
test or taking an English test? The knowledge of language and life in the UK test can
be taken in audio form and that [sic] test centres can cater for a range of disabilities.
It is computer based and comprises 24 questions with multiple choice answers.
Candidates are allowed 45 minutes and the pass mark is 18 correct answers
I feel he would be unable to manage the test. His experience so far has left him confused and
frustrated. He guesses at multi choice answers due to lack of understanding of the process.
In your opinion is this condition likely to improve sufficiently for them to be able to
study and take the required tests? If so, is this likely to do so within the next two
years?
No"
[5]
On 19 December 2022 the respondent wrote to the petitioner indicating that his
application for exemption had been refused and indicating that he was not considered to
meet the criteria for exemption. The respondent said:
5
"it is noted that you have been resident in the UK now for some considerable time,
10 years, therefore it is reasonable to expect that you would already have a good
grasp of the English language, culture and history."
The respondent said that the petitioner should provide confirmation that the statutory
KOLL requirements were met or, alternatively, should provide sufficient additional medical
evidence confirming information in regard to the claimed conditions. In relation to the latter
option, the respondent specifically asked for information about how long the conditions had
been ongoing for, when they were diagnosed, the specific treatment given for those
conditions and the response to it. She sought confirmation that the conditions were
longstanding and permanent and unlikely to improve in the next 2 years and asked for
medical evidence to support the statement in that the application for exemption that the
petitioner had had memory issues for the past 10 years. The petitioner was given until
19 January 2023 to provide the information. The petitioner did not supply any medical
evidence to the respondent. By email dated 22 February 2023, the petitioner's application for
naturalisation was refused. By letter dated 2 August 2023, he sought a review of that
decision but the decision was confirmed on 2 October 2023.
Submissions for the petitioner
[6]
The petitioner draws attention to the use of the words "must" in the first paragraph
of the policy quoted above and submits that this means that the discretion has to be
exercised if the applicant is suffering from a long-term illness that severely restricts his
ability to speak English or prepare for the KOLL test and has a mental condition that
prevents him from speaking or learning English to the correct standards. It is submitted that
the terms of the doctor's report were such to indicate that the petitioner's lack of
6
understanding of English and lack of concentration skills would prevent him studying for
the test and that, so far as sitting the test is concerned, he would be unable to manage it.
[7]
The petitioner contends that the respondent erred in seeking a further medical
report. It was submitted the discretion is not to be based on the number of medical reports
but what they say. The respondent has failed to take account of what was said in the report
by the petitioner's GP; it was an error to focus on the quantity of the reports and not their
quality. It was submitted that nothing is said in the decision about the answers that were
given by the doctor to the specific questions included in the application form. It was
submitted that the requirement on a person seeking exemption is to provide a form from a
doctor addressing the critical issues, such as a long term disability, and that the petitioner
had complied with this requirement.
[8]
In relation to the second ground of challenge, it was submitted that the respondent
had erred in the manner of rejecting the medical evidence provided. It was recognised that
the respondent was not bound to accept the conclusions of the doctor but was submitted
that, if she was not going to do so, it was incumbent upon her to obtain evidence which
contradicted it.
Submissions for the respondent
[9]
It was submitted that the use of a language test pursued the legitimate aim of
promoting integration and was lawful (R. (on the application of Bibi) v Secretary of State for the
Home Department, [2015] UKSC 68, at [46] to [48]). The respondent had applied the policy - it
required an evaluative judgement as to the petitioner's condition and its effects. The policy
states that the respondent should request further information if not satisfied that the
information provided is sufficient and the respondent did that. It was argued that it was
7
reasonable for the respondent to conclude that the general practitioner's report was lacking
in detail. The petitioner had not provided the further information requested. It was not for
the respondent to prove that the petitioner did or did not meet the requirements of the
policy, it was for the petitioner to satisfy the respondent that they were met. The respondent
was not satisfied and accordingly requirement for exercising discretion was not met.
[10]
In relation to the argument concerning failure to take matters into account, it was
noted that the respondent was not obliged to accept the conclusions of the GP
and the weight to be given to the report was a matter for the respondent's discretion. The
weight to be given to the report would be guided by the relevant policy and objects of the
governing legislation. By reference to R (Jones) v North Warwickshire Borough Council
Decision
[11]
The apparent intention of paragraph 1 of Schedule 1 of the 1981 Act, is that persons
being naturalised as British citizens should have familiarity both with one of the principal
languages of the United Kingdom and its culture. The conditions for exercise of the waiver
from that requirement are specified both in paragraph 2 of the Schedule and the policy. The
conditions are that, despite the intended outcome, it would be unreasonable to expect the
applicant to fulfil those requirements and that the reason it would be unreasonable is
because of the applicant's age or physical or mental condition. There is no question of the
age or physical condition being a factor in this case. Therefore, for the petitioner to obtain a
waiver, it would be necessary to establish that he had a mental condition and that, as a result
of that, it would be unreasonable to expect him to meet the requirements.
8
[12]
It is apparent from this that the condition and the inability to complete the tests are
two distinct things. This is understandable. If waivers were given simply on the basis that
the applicant could not pass the tests, the policy would be wholly undermined and there
would be no purpose in having the requirements. Whenever an applicant was not able to
meet the requirements, they would be able to seek a waiver. The Act and the policy
recognise that there may be situations where, because of the circumstances of a particular
applicant which go beyond the fact that he or she cannot meet the test, it would be
unreasonable for them to be imposed.
[13]
In the report provided by the GP, little is said other than that poor concentration and
memory skills over a period of 10 years have made it difficult to improve the petitioner's
English skills. Poor concentration is also given as the reason why he cannot study for the life
in the UK test along with the fact that he would guess at answers. The closest the report gets
to identifying a mental condition is the reference to low mood and depression. In the report
the petitioner's inability to study and the fact he would guess at answers are not directly
related to the issues of low mood and depression. There is no consideration of when a
diagnosis was made, what treatments have been tried and what effect, it any, they have had.
It was with these factors in mind, no doubt, that the communication of 19 December 2022
gave the petitioner a chance to submit additional medical information.
[14]
The decision of 22 February 2023 makes express reference to the policy in respect of
granting waivers from the KOLL requirements. It is apparent that the respondent has
considered the issue of waiver and has applied the policy referred to in the email. The
request for additional information accords with the terms of the policy. The decision to
refuse the application for waiver was on the basis that, notwithstanding the conditions from
which he was said to suffer, the length of time the petitioner has been in the UK meant that it
9
was reasonable to expect he would have a good grasp of the English language, culture and
history. In effect this is concluding that in the circumstances, and notwithstanding the
deficits identified by the General Practitioner, it is not unreasonable to expect the petitioner
to meet the KOLL requirements. Accordingly, the respondent has exercised the discretion
conferred by the policy. In so doing, the respondent has not disregarded or ignored what
was said by the General Practitioner. He has accepted the deficit referred to in the
application for waiver form but concluded that on the basis of the limited information
provided and the fact that the petitioner has been resident in the UK for some time, the
petitioner has not established that the condition prevents him from taking the life in the UK
test or learning English.
[15]
In these circumstances, the petitioner has not demonstrated that the decision is
flawed in the ways he contends. The petition is accordingly refused.
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