CBW & Ors, R (on the application of ) v Secretary Of State for the Home Department

There are five claims for judicial review listed for hearing today. This judgment only deals with four of those claims. The fifth, that brought by Mr Alibiari, will be dealt with separately. Three of these claims involve individuals who were refused naturalisation as British citizens as the Secretary of State was not satisfied that they were of good character as required by section 6 and schedule 1 to the British Nationality Act 1981. They sought to challenge a policy adopted in 2025 – which I will refer to as version 6 – setting out guidance on the approach to assessing good character and the individual decisions in their cases. The other two cases involve individuals who sought to challenge version 6 only.

The claim concerns the lawfulness of the approach to assessing the character of applicants for British citizenship. In particular, the claims concern persons who enter the United Kingdom illegally or who enter without having first obtained entry clearance, and by making a dangerous journey, that is, a journey concealed in a lorry or on a small boat. Such persons may claim, and be granted, refugee status after arriving in the United Kingdom if they would face a risk of persecution as defined by the Refugee Convention if they were returned to their country of origin.

The question in these cases however concerns a different issue, namely their application for British citizenship. In particular, the claims concern the question of whether the Secretary of State may take the fact of a person’s illegal entry into the United Kingdom into account when assessing whether or not she is satisfied that the person is of good character when assessing the person’s applications for naturalisation as a British citizen. An aspect of that is whether they could have claimed refugee status in another country before arriving in the United Kingdom, and, if so, whether that was relevant to an assessment of their character as it could be said that they did not have to enter the United Kingdom illegally or clandestinely to claim asylum – they could have claimed asylum in another country.

The four claimants whose claims are dealt with in this judgment are known by ciphers. Three are known as GUN, NEA, and HCH. They travelled through various countries, including countries in Europe, before entering the United Kingdom illegally. By way of example, one claimant travelled on a false passport. In another case, one claimant entered without obtaining entry clearance and concealed in the back of a lorry. After arriving in the United Kingdom, all four claimants claimed and were granted, refugees status within the meaning of the Refugee Convention.

GUN, NEA, and HCH applied for British citizenship. Their applications were refused. They brought claims for judicial review of (1) version 6 of the policy and (2) the individual decisions refusing their applications.

Since they were granted permission, two events have occurred. First, version 6 of the policy has been replaced by version 7 with effect from 30 April 2026. Secondly, the Secretary of State has withdrawn the decisions in the cases of GUN, NEA and HCH refusing their applications for naturalisation. Their applications will have to be considered afresh. We were not provided with any evidence filed on the part of the Secretary of State such as a witness statement exhibiting the decision withdrawing the earlier decisions. Nor were we told the date on which each of the withdrawal decision were taken. Indeed, it was not clear to this court when it did its pre-reading whether the decisions had in fact already been withdrawn. We sought clarification of the position on Friday 5 June and solicitors for the Secretary of State confirmed that the original decisions had been withdrawn and the applications for naturalisation would have to be considered afresh. Mr Brown for the Secretary of State undertook to arrange for a witness statement to be provided giving the relevant information.

The fourth claimant is CBW. He brought a claim for judicial review of version 6 of the policy. He has not applied for British citizenship. If he had applied, any such application would, until recently, have been assessed by reference to, amongst other things, version 6. Now, if he makes any such application, it will be assessed by reference to version 7.

Kimblin J. has made orders for the management of these four claims, and other claims brought by individuals who had been refused naturalisation at a time when version 6 was in force. Kimblin J granted five claimants permission to bring a claim for judicial describing them as “lead claims”. They included the four claimants whose claims are considered in this judgment. Kimblin J stayed 8 other claims pending final orders in the lead claims. These are claims which have not yet been granted permission to apply for judicial review. Kimblin J also provided for an extension of time for filing claims brought in future by persons refused citizenship on the basis of their illegal entry or dangerous journey into the United Kingdom.

Against that background, the five claims were listed for a three day hearing before a Divisional Court. The problem is how to proceed given that (1) version 6 of the policy has now been withdrawn and (2) the three individual claims which were to provide a sample of the range of factual situations that might occur have had their decisions withdrawn. It is right to record that the claimants had attempted to settle the claims but that attempt had not succeeded.

In those circumstances, at the start of the hearing, Mr Chirico, with Ms Laughton and Ms Robinson, applied on behalf of two other claimants effectively for orders that would enable their cases to be heard over the next three days in place of the other claimants. One was AD. His claim was one of the originally eight cases which Kimblin J had stayed. The second claim is that brought by RF. His claim had been stayed by a consent order. Neither has yet been granted permission to apply for judicial review. No detailed grounds have yet been served.

The application would require lifting the stay on the claims of AD and RF. It would require deciding whether to grant permission and then directing that it be heard today.

There is a further qualification. The application is only intended to enable part of each claim to be determined and only to deal with some of the grounds, i.e. what are described as the generic grounds of challenge, not what are described as the individual grounds. Both AD and RF challenged the decision refusing naturalisation in their cases and also version 6 of the policy. There were grounds alleging that the individual decisions were unlawful. There were grounds alleging that version 6 was unlawful. The application would only involve determining part of the claim – the challenge to version 6 – and only those grounds relating to version 6. The claim challenging the individual decisions on grounds related to t hose particular decisions would not be dealt with at this hearing.

Mr Chirico set out the reasons why the application was being made. He submitted that it had been hoped that the parties would be able to settle the claims but it had not been possible to settle all the claims including the stayed claims. He recognised that the claims of CBW, GUN, NEA and HCH were academic. Given those circumstances, the application was being made to ensure that there was a hearing, and brought by claimants willing to bears the cost and stress of legal proceedings and who, potentially stood to benefit. We understood why, in the circumstances, the application was made and we make no criticism of AD or RF, or indeed the other four claimants for making this application.

Mr Brown, with Ms Hart and Mr Anderson for the Secretary of State took as his primary position, that the application should be dismissed – but only on the basis that there would then be a hearing of the claim of CBW, GUN, NEA and HCH.

Mr Brown’s secondary position was that the application should be granted. He accepted that would mean lifting the stay, granting them permission. He recognised that there were no detailed grounds but submitted that they could be provided by the end of the hearing on Thursday. In any event, the detailed grounds in the other cases contained the likely grounds for arguing that the challenge to version 6 was not made out and could be used during the hearing of the claims of AD and RF.

We refused the application to vary the order. We said that we would give reasons later and these are the reasons why I joined in that decision.

First, and foremost, a claim for judicial review is a claim that particular decisions or measures are unlawful. Those claims have to be considered on the basis of the pleadings and the facts in those cases. That is not, however, what we are asked to do in these two additional claims. Rather, the suggestion is that part only of their claims be considered an, further, that those parts be considered in a vacuum. I give just two examples of why this might – depending on the facts – be unwise and unnecessary. It may, for example, appear that on the individual facts of a particular case, the decision to refuse was unlawful and so the decision has to be quashed. That would not require any consideration of the lawfulness of any policy in place at the time the decision was made. Conversely, if in fact the decision-maker considered the matters that it is alleged the policy omitted to address, then the decision might well be lawful irrespective of whether any policy was or was not lawful.

Secondly, we do not have all the pleadings. Indeed, the pleadings are not yet concluded. There are no detailed grounds in either of the two cases and the acknowledgement of service are limited essentially to saying the case should be stayed. It is procedurally inapt to try and decide part of these cases with partial documentation.

The fact of the matter is that these two claims have not reached the stage where they can be heard. It is not sensible or principled, to try and use part of those cases, on partial documentation, as a vehicle to try other claims in which the claimants in those other claims recognise that the claims have become academic. It does not accord with the frequent emphasis by this Court, and the Court of Appeal, on the need for procedural rigour which, after all, is only an emphasis on ensuing that claims are processed and heard in accordance with the rules, which are there to ensure fairness to the parties and proper adjudication by courts.

I would add that once it became clear that version 6 was to be replaced, and that the decisions in the cases of GUN, NEA and HCH were to be, or had been, withdrawn, the sensible course of action if the parties could not reach agreement would have been to seek a case management conference or at the very least directions, on how the litigation would proceed. A case management conference, or directions, could for example have identified suitable cases, given directions for pleadings and evidence, and dealt with permission and the hearing of the claim. We recognise and understand that the Secretary of State wished the court to be in a position to deal with those issues. It was not, however, sensible to try and shoehorn parts of other cases into a three day hearing designed for different cases, and where the cases were not ready to be heard.

For those reasons, granting the application so that today, on the first day of a three day hearing, we add two further claims, decide to grant permission, and continue to consider part of their claims without documents and pleadings, and without a proper understanding of the facts, would be unprincipled and unwise. We therefore refused the application.

For completeness, I note what happened following our refusal of the application. Mr Chirico sensibly applied for permission to withdraw the claims of CBW, GUN, NEA, and HCH and made an application consideration of costs. Mr Brown did not oppose that application. We granted permission to withdraw. We adjourned consideration of the application for costs to give the parties time to decide how best to deal with that application.

I agree.