Immigration update

Applicants for naturalisation who have minor criminal convictions are increasingly falling foul of the 'good character' requirement of the British Nationality Act 1981. The recent Administrative Court judgment in Poloko Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin), provides a good example of, as the judge put it, how inflexibly the policy on criminal convictions has been applied in practice.

'Good character'

Mr Hiri is a national of Botswana, who had been lawfully resident in the UK since 2006, and had served in the British Army since 2008. In 2011, he was convicted of speeding on a motorway and given a fine of £100 and five points on his driving licence. He applied for naturalisation in 2012 and his application was refused on the basis that he did not meet the 'good character' requirement because his conviction would not be 'spent' until November 2016.

He applied for the decision to be re-considered, submitting a very favourable reference from his commanding officer stating that he was of exemplary character. Despite this, the refusal was maintained on the sole basis of his criminal conviction.

At the time, Mr Hiri made his application, the published policy on the 'good character' requirement stated that caseworkers should normally refuse an unspent conviction, although there was discretion to overlook some minor one-off offences. However, the guidance stated that caseworkers should not normally disregard any unspent conviction that fell under the category of 'recklessness', which specifically included excessive speeding.

The Administrative Court quashed the decision to refuse Mr Hiri's application, requiring the secretary of state to reconsider her decision. The judge found that the assessment of Mr Hiri's character was inadequate. The secretary of state had failed to weigh "the powerful countervailing evidence of good character in the balance, in order to make an overall assessment of his character, as is required." No mention was made in the decision of the factors pointing to Mr Hiri's good character.

Policy change

It is worth noting that since Mr Hiri's application was refused, the Home Office has changed its policy on assessment of criminal convictions in the context of the good character requirement under the British Nationality Act 1981. The published guidance on the good character requirement for naturalisation applications now states that applications will normally be refused where a non-custodial conviction occurred within the last three years. The paragraph referring to recklessness and to excessive speeding as an offence for which unspent convictions should not normally be disregarded does not feature in the current policy.

The use of the term 'will normally be refused' indicates that the home secretary still retains a residual discretion to overlook such criminal convictions. Therefore, it is still the position that, as in Mr Hiri's case, the secretary of state is bound to carry out a comprehensive assessment of each applicant's character.

As the judge said in Hiri: "The defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her caseworkers, 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 judgment, not just ticking boxes on a form."

Third countries

In an important decision, the Supreme Court in R (on the application of EM (Eritrea) and Others) v Secretary of State for the Home Department [2014] UKSC 12 has rejected a principle introduced by the Court of Appeal that asylum seekers resisting return to a safe third country must show that there are 'systemic deficiencies' in the asylum procedure and reception conditions there in order to succeed in their claim.

For many years, European countries have operated a system whereby an asylum-seeker is required to claim asylum in the first safe country he enters. This is currently governed by the Dublin II EU Regulation. The system is intended to prevent so-called 'asylum shopping', whereby applicants do not claim asylum upon entry into the EU but instead make their way to another country of their choice to claim asylum.

If an asylum seeker arrives in the UK having passed through other member states beforehand, then he may be returned to the first member state through which he passed.

However, an asylum seeker who claims that his removal from the UK would expose him to the risk of a breach of his human rights and /or Article 3 ill-treatment in the member sate to which it is proposed to return him has an in-country right of appeal against the decision to remove him. But if the Home Office certifies his claim as "clearly unfounded", then that right of appeal will not be exercisable in the UK. A decision to certify a claim can only be challenged by way of judicial review.

Greece and Italy

With recent disturbances in the Middle East and North Africa, many asylum seekers have entered the Dublin area by boat across the Mediterranean, often arriving in countries such as Greece and Italy, where there are concerns about the asylum procedures and reception conditions for asylum seekers.

As a result, many asylum seekers who came to the UK via those countries have sought to resist their return by reference to the conditions for asylum seekers there. EM (Eritrea) concerned the certification of claims by a number of asylum seekers who had alleged that their removal to Italy would breach their human rights.

The claimants argued that "Italy's system for the reception and settlement of asylum seekers and refugees is in large part dysfunctional, with the result that anyone arriving or returned there, even if they have children with them, faces a very real risk of destitution".

The Court of Appeal said that if the matter had stopped there, then they would have been bound to conclude that there was a triable issue in the cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to Article 3 ECHR, which would have required it to quash the certificates.

However, the Court of Appeal instead decided that it could only quash the certificates if it was shown that Italy was "in systemic rather than sporadic breach of its international obligations". It reached this conclusion after consideration of recent European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) case law, in particular the CJEU decision in NS (Afghanistan) v SSHD, Cases C-411/10 and C-493/10, [2013] QB 102.

Systemic deficiency

Before the Supreme Court, none of the parties (including UNHCR, which intervened) sought to uphold the Court of Appeal's conclusion that the sole ground on which removal could be refused was a systemic deficiency in the third country's asylum or reception procedures.

The Supreme Court unanimously agreed that the Court of Appeal had misinterpreted the CJEU decision in NS. It considered that the CJEU had in fact said that the infringement of fundamental rights provided evidence of systemic deficiency rather than, as the Court of Appeal concluded, stating that a systemic deficiency had to be demonstrated before violation of a fundamental right could operate to prevent a return.

The Supreme Court concluded that the test to be applied in considering third country returns remained what it had always been, i.e. the test set out in Soering v UK (1989) 11 EHRR 439, that there should be a real risk that the person would suffer treatment contrary to Article 3 ECHR. Evidence of systemic breaches is one means, but not the only one, of satisfying this test. All four cases were remitted to the Administrative Court for reconsideration.

The decision therefore helpfully provides clarification of the test to be applied in all safe third country cases, and strikes down the erroneously high threshold set by the Court of Appeal. The Supreme Court did not deal with any of the substantive issues regarding returns to Italy, which are likely to be determined in a number of other cases forthcoming in the near future.