Ahmed Alibiari, R (on the application of) v Secretary of State for the Home Department

This is a claim for judicial review of version 6 of a policy setting out guidance on the assessment of whether a person is of good character for the purposes of deciding whether to grant an application for naturalisation as a British citizen. That policy was in force from 13 February 2025 until 30 April 2026.

In brief, the claimant, Mr Alibiari, is a national of Egypt. He travelled first to Italy where he spent seven to ten days. He then travelled to France where he lived for about a month with friends of his brother (who was living in France). He then travelled to Belgium where he stayed for about two weeks and made three unsuccessful attempts to come to the United Kingdom. On the fourth attempt he was successful, having concealed himself in a lorry and been taken to Dover. He entered the United Kingdom illegally. He claimed, and was granted, refugee status as he faced a risk of persecution as defined by the Refugee Convention if he were returned to Egypt.

The issue in this case, however, does not concern his claim to be a refugee. It concerns a different issue, namely whether Mr Alibiari should be granted British citizenship. Section 6 of, and schedule 1 to, the British Nationality Act 1981 (“the 1981 Act”) provides, amongst other things, that a person may only be granted naturalisation as a British citizen if the Secretary of State is satisfied that he is of good character. Version 6 sets out guidance on the approach to be adopted in assessing good character. It provides, amongst other things, that a person applying for citizenship after 10 February 2025 will normally be refused citizenship if he (1) entered the United Kingdom illegally or (2) arrived in the United Kingdom without entry clearance or travel authorisation having made a dangerous journey (which included travelling by a small boat or concealed in a vehicle).

Mr Alibiari applied for citizenship. As he had entered illegally, he would not normally be granted citizenship. He gave an explanation of why he came illegally, concealed in a lorry, and why he had not claimed asylum in Italy, France or Belgium. The Secretary of State refused the application. Mr Alibiari does not challenge the lawfulness of that decision. Rather Mr Alibiari challenges the lawfulness of version 6 of the policy on three grounds, namely:

Version 6 of the policy is no longer in force having been replaced with version 7. Further, Mr Alibari did not request a reconsideration of the decision refusing his application for naturalisation. Nor has he challenged the decision in this claim for judicial review. At the outset of the hearing, the court raised with the parties whether in those circumstances, the claim that version 6 of the policy was unlawful was academic. The decision in Mr Alibiari’s case would remain in effect whatever the outcome of the claim, and version 6 itself was no longer in force. Mr Goodman KC, for Mr Alibiari, submitted that the claim was not academic as Mr Alibiari would be able to apply for a reconsideration of the decision at any time, that any reconsideration would be based on the policy in force at the time of the decision (here version 6) and if version 6 was quashed or declared unlawful, that may be of benefit to Mr Alibiari in any reconsideration. Mr Brown KC, for the Secretary of State, expressly confirmed that the relevant rules did not impose a time limit for applying for reconsideration, and it could conceivably be of benefit to Mr Alibiari if version 6 was found to be unlawful as the reconsideration would otherwise proceed on the basis of version 6. We were not shown the relevant rules, or provisions, governing reconsideration. We, therefore, proceeded on what we were told and proceeded to hear the claim over two days.

The 1981 Act defines those persons who are British citizens or who are entitled to acquire such citizenship on registration. Section 6 of the 1981 Act also provides for the circumstances in which a person who is not entitled to British citizenship may be granted naturalisation as a British citizen. Such a person must satisfy certain requirements. The Secretary of State may then, if he thinks fit, grant a certificate of naturalisation. Section 6(1) of the 1981 Act is in the following terms:

“(1)

If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”

Schedule 1 to the 1981 Act sets out a number of requirements that an applicant for naturalisation must meet including that he is of good character. The material provision is paragraph 1(1)(b) which is in the following terms:

“(1)

Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it—

…..

(b)

that he is of good character…..”.

The Secretary of State must be satisfied that the person is of good character and if he is not satisfied, he must refuse the application for naturalisation. It is for the applicant to prove that he is of good character: it is not for the Secretary of State to prove that he is not of good character. See R (Amin) v Secretary of State for the Home Department [2022] EWCA Civ 439.

The Secretary of State has issued guidance entitled “Nationality: good character requirement”. That guidance has been amended from time to time. The guidance in place between 13 February 2025 and 30 April 2026 was version 6. It is addressed to the individual caseworkers who are responsible for assessing good character. It begins by saying that the “guidance tells you how to consider whether a person applying for British citizenship meets the good character requirement”.

Under a heading “Approach”, version 6 says:

“The BNA 1981 does not define good character. However, this guidance sets out the types of conduct which must be taken into account when assessing whether a person has satisfied the requirement to be of good character.

Each application must be carefully considered on an individual basis on its own merits. You must be satisfied that an applicant is of good character on the balance of probabilities.

This means that consideration must be given to all aspects of a person’s character, including both negative factors, for example criminality, immigration law breaches and deception, as well as positive factors, for example contributions a person has made to society. The list of factors is not exhaustive.

To facilitate this, applicants must answer all questions asked of them during the application process honestly and in full. They must also inform the Home Office of any significant event (such as a criminal conviction or a pending prosecution) or any mitigating factors that could have a bearing on the good character assessment.”

Version 6 then sets out a number of factors to consider and indicates that a person would not normally be of good character if there was information to suggest that one of those factors applied. The factors were criminality, involvement in international crimes, terrorism or activity not conducive to the public good, financial unsoundness, notoriety, deception and dishonesty, immigration related matters and previous deprivation of citizenship. The following sections gave further, more detailed, guidance about each of those factors.

The section on immigration related matters deals with a number of different types of breach of immigration law or rules. They include the following. There is a sub-section headed “Illegal entry” which provides, so far as material to this case,

“Any person applying for citizenship from 10 February 2025, who previously entered the UK illegally will normally be refused, regardless of the time that has passed since the illegal entry took place.”

There is also a sub-section headed “Arriving without a valid entry clearance or electronic travel authorisation, having made a dangerous journey” which provides, so far as material to this case, that:

“A person who applies for citizenship from 10 February 2025 who has previously arrived in the UK without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey, will normally be refused citizenship regardless of the time that has passed since the immigration breach took place.

A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.”

Those two sections deal respectively with persons who have in fact entered the United Kingdom (effectively having passed beyond border control) and those who arrived in the United Kingdom without the relevant entry clearance having made a dangerous journey. They are persons who have crossed by small boat or concealed in a vehicle and are detected before they pass through border control. It is convenient to refer to the two groups as illegal entrants and irregular arrivals.

The final section is headed “Exceptional grants” where a person might exceptionally be granted citizenship. It says that:

“An exceptional case is one where on the facts of the case, the application would normally be refused but there are mitigating circumstances which mean it would be appropriate to grant.”

The section gives examples. It says that:

“Discretion must be applied on a case-by-case basis in relation to the individual conduct of the applicant, when considering whether to exceptionally grant citizenship who would otherwise face mandatory refusal of citizenship.”

There is no definition of illegal entry in version 6 of the policy. Section 3 of the Immigration Act 1971 (“the 1971 Act”) provides that a person who is not a British citizen “shall not enter the United Kingdom unless he has been given leave in accordance the provisions of, or made under, this Act”. Section 33(1) of the 1971 Act provides that, for the purposes of the 1971 Act, “illegal entrant” means a person “unlawfully entering or seeking to enter in breach of a deportation order or of immigration laws” or who enters using deception. Entry clearance is also defined in section 33 as “a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence ... of a person’s eligibility, though not a British citizen, for entry into the United Kingdom”. The phrases “illegal entry” and “entry clearance” in version 6 of the policy are, in my judgment, to be interpreted in accordance with section 33 of the 1971 Act.

At the material time, section 24(1)(a) of the 1971 Act provided that a person commits a criminal offence if he required leave to enter and knowingly entered without leave.

The claim for judicial review concerns only a challenge to the guidance given in version 6 of the policy. The Supreme Court has considered the circumstances in which it may be appropriate to review a policy to determine whether it is unlawful because it contains a misstatement of the law or is misleading because it does not properly set out the law. The test is set out in R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931 in the following terms:

“38.

In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 181F (reading the word “permits” in the proper way as “sanction” or “positively approve”) and by adapting Lord Templeman's words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.”

The Supreme Court described how that test applied in the following way:

“46.

In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i.e. the type of case under consideration in Gillick [1986] AC 112 ); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis. In the present case, however, the police are independent of the Secretary of State and are well aware (and are reminded by the Guidance) that they have legal duties with which they must comply before making a disclosure and about which, if necessary, they should take legal advice.

47.

In a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. That would tend to make a policy unwieldy and difficult to follow, thereby undermining its utility as a reasonably clear working tool or set of signposts for caseworkers or officials. Much will depend on the particular context in which it is to be used. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done.….”.

Mr Alibiari is a national of Egypt born on 17 December 1997. He came to the United Kingdom on 13 September 2016. He claimed asylum and that was, ultimately, granted on appeal. He has been granted indefinite leave to remain in the United Kingdom.

The following account of his travel from Egypt to the United Kingdom is largely taken from the detailed representations made by his solicitors on his behalf when he applied for naturalisation in October 2025. The representations included a copy of Mr Alibiari’s witness statement in these proceedings.

Mr Alibiari left Egypt on 23 July 2016, when he was 18 years old. He travelled first to Italy where he stayed for seven to ten days, first at accommodation provided by the Italian authorities, and then for a day or so with a friend in Rome. That friend provided him with money and Mr Alibiari then travelled by train from Rome to Nice and on to Paris. He spent about a month in Paris living with three friends of his brother who lived in Paris (but was in Egypt during the period when Mr Alibiari was in Paris). He was given about 1,000 euros by one of the friends. He and another friend travelled together to Belgium via a minibus arranged by an agent. He spent about two weeks in Belgium. He met agents who arranged to assist him with travelling to the United Kingdom. He was taken to a lorry park where there were lorries bound for the United Kingdom and Sweden. He made three unsuccessful attempts to board a lorry. On the fourth occasion he was successful and travelled, concealed in a lorry, to the United Kingdom. He arrived in the United Kingdom on 13 September 2016. It appears that the lorry passed through border controls with Mr Alibiari concealed inside. It stopped in Dover. Mr Alibiari and others in the lorry knocked on the rear door and they were let out by the driver who called the police.

The detailed representations sent to the Secretary of State set out submissions on why Mr Alibiari satisfied the requirements for citizenship. They dealt separately with the question of good character. They addressed the question of whether Mr Alibiari had travelled directly from a country where his life or freedom was threatened and would have a defence under section 31 of the Immigration and Asylum Act 1999 (“the 1999 Act”) if he had been prosecuted for illegal entry. They dealt with the period of time that he spent in Italy, France and Belgium. They put forward the argument that Mr Alibiari had been told not to apply for asylum in any of those countries as, if he did so, he would be likely to be returned to Egypt (saying he had been told that by an interpreter in Italy, by friends of his brother in France, and agents in Belgium). The representations contended that Mr Alibiari could not reasonably have been expected to have sought protection in Italy, France or Belgium.

The application for naturalisation was refused on 23 January 2026. It was refused for two reasons. First, Mr Alibiari fell within that part of version 6 dealing with illegal entrants as he “entered the United Kingdom on 13 September 2016 and [was] served with an enforcement notice, IS96ENF, on 13 September 2016 deeming [him] as a person who had entered the UK illegally”. Secondly, he fell within that part of version 6 dealing with persons who arrived without entry clearance having made a dangerous journey as he came to the United Kingdom concealed in a lorry and did not have a valid entry clearance or electronic travel authorisation. The decision letter considered the arguments made that Mr Alibiari had travelled directly from a country where his life or freedom was threatened and showed a good cause for his illegal entry or presence and said:

“A refugee who stopped in another country that was a signatory to the United Nations refugee convention, would not benefit from a defence under section 31 unless it was not reasonable to have expected them to have sought protection under the convention in that country first.

After considering all the circumstances of your arrival to the UK, we are not satisfied that you have a valid defence under Section 31. This is because you did not travel directly to the UK from the country from which you feared persecution. We have also considered whether there is any other mitigation or evidence already available to us to support an exceptional grant under this policy when considering your good character.

When considering all factors, we are not satisfied, on the balance of probabilities that you have demonstrated that you meet the good character requirement, and your application is therefore refused.

We have also considered whether there are any exceptional circumstances which should be taken into consideration to support an exceptional grant under this policy. An exceptional case is one, where on the facts of the case, the application would normally be refused but there are mitigating circumstances which mean it would be appropriate to grant.”

Mr Alibiari has not brought a claim for judicial review of that decision (and has not sought to have it reconsidered).

In his witness statement, Mr Alibiari explains the reasons why he wants to be a British citizen. These fall, broadly, into four areas. First, he believes that it would provide him with a sense of belonging. Secondly, having a British passport would allow him to travel freely to other countries. He travels with a refugee travel document and that has led to delays when travelling and, in one instance, he was refused entry to one country and is unable to visit one other. Thirdly, he says that British citizenship will provide him with a sense of security. Fourthly, he wishes to have the right to vote at elections.

In the claim form, and in written and oral submissions made by Mr Goodman KC, with Mr Bishop, on behalf of Mr Alibiari, it is said that version 6 of the policy misinterprets, or gives irrational guidance, on the requirement of good character and therefore directs caseworkers to take unlawful decisions.

First, it is submitted that version 6 misdirects itself in law as to the meaning of good character by seeking to equate a single instance of illegal entry or irregular arrival with a “propensity to criminal or antisocial conduct” (a phrase used by Underhill LJ in R (Howard) v Secretary of State for the Home Department [2022] 1 WLR 4997 at paragraph 44). Secondly it was submitted that the approach to the definition of good character was so unreasonable as to be unlawful. Further, it was submitted that version 6 of the policy was unlawful, applying the approach in A,in that it included a positive statement of law which was wrong or because the policy sought to provide a full account of the legal position because of a misstatement or omission (categories (i) and (iii) in paragraph 46 of the judgment in A). .

Mr Goodman developed the argument differently in oral submissions. He submitted that the error of law was that version 6 treated all cases of illegal entry as a negative factor. That, however, failed to recognise that a refugee may not bear any moral responsibility for the circumstances which caused him to enter the United Kingdom illegally or to arrive by means of a dangerous journey and so would not be evidence of a lack of good character. Version 6 of the policy failed to recognise the need to assess the question of moral responsibility. As such, it was unlawful either because it was wrong in law or because it required the decision-maker unlawfully to refuse naturalisation. Mr Goodman also submitted that the process by which version 6 of the policy was adopted was unlawful.

Mr Brown KC, with Mr Anderson and Ms Hart, for the Secretary of State, submitted that version 6 of the policy identifies matters likely to show bad character. It provides, however, for a fact based assessment or evaluation of good character. If there are factors which demonstrate that the factor relied on does not indicate good character that would be dealt with under the policy either by balancing the negative and positive factors or by, exceptionally. granting citizenship. How that was done was a matter for the Secretary of State. In the present case, illegal entry or irregular arrival were factors capable of indicating a lack of good character. If an applicant wished to argue that he did not bear moral responsibility for the state of affairs for whatever reason, those arguments could be put to the Secretary of State who could determine whether those arguments indicated that citizenship should be granted because the applicant was, in fact, of good character.

The assessment of whether the Secretary of State is satisfied that a person is a person of good character, such that he should be regarded as eligible for the grant of British citizenship, involves an evaluation or judgment on the part of the Secretary of State: R (Amin) v Secretary of State for the Home Department [2022] EWCA Civ 439. The standard required to demonstrate good character is a matter for the judgment of the Secretary of State and “it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard” (per Nourse LJ in R v Secretary of State for the Home Department ex p. Al-Fayed [2001] Imm AR 134 at paragraph 41).

There are a wide range of matters which may be relevant to an assessment of a person’s character. Those may include a person’s conduct or behaviour or the values that he espouses. They may include the fact that a person has engaged in, or has a propensity to engage in, criminal or anti-social conduct but they are not limited to such matters.

The fact that an applicant for citizenship entered the United Kingdom illegally is something that the Secretary of State can treat as indicating that the person is not of good character. Such conduct or behaviour may indicate a willingness to break or disregard the law. Similarly, arrival without an entry clearance and having made a dangerous journey, for example arriving by small boat or concealed in a vehicle, demonstrates a willingness to make dangerous journeys and to use criminal gangs to make arrangements for a person to travel to the United Kingdom. The standard of behaviour or conduct that is to be expected of persons seeking citizenship is a matter for the Secretary of State. She is entitled to take into account the fact that a person entered the United Kingdom illegally or arrived without the necessary entry clearance and having made a dangerous journey. She is entitled to take the view that, normally, such behaviour does demonstrate that that the person lacks good character.

There may be reasons why a person should be granted citizenship notwithstanding the fact that he entered illegally or arrived illegally. The fact that a person was granted refugee status does not, of itself, amount to an explanation. A person may have had to leave his country of origin because he had a well-founded fear of persecution there. That would not necessarily explain why he had to enter the United Kingdom illegally or arrive irregularly. That person may well have arrived first in a safe country, that is one which is a signatory to the Refugee Convention, or passed through European countries who are signatories to the Refugee Convention. The person could have claimed asylum in such a country. He would not have needed to enter the United Kingdom by illegal or irregular means in order to avoid persecution.

There may, though, be cases where a person could be said not to be responsible for the fact that he entered or arrived in the United Kingdom illegally or arrived irregularly and so, it might be argued, the conduct does not indicate a lack of good character on his part. Examples given in argument were a person who was trafficked and had no control over where he or she was taken or how that was done. There may be cases where a person wishing to claim asylum may have no control over where he is taken. He may pay people smugglers to take him from his country of origin and it is possible that he may have no control over the journey, and no ability to contact the authorities in a country en route to the United Kingdom. Whether that negates the fact that he entered illegally or arrived irregularly may depend on the circumstances. The Secretary of State may view a person who pays people smugglers or agents to take him from his country of origin to the United Kingdom differently from a person who pays people smugglers to get him out of his country of origin and those people smugglers control the journey and the destination and the individual has no opportunity during the journey to contact the authorities in the countries through which he passes.

Against that background, the position is as follows. First, the Secretary of State is entitled to give guidance to caseworkers, as she has done in version 6 of the policy, as to how illegal entry or irregular arrival is to be viewed. She is entitled to state that, normally, a person who entered illegally or arrived irregularly will not be treated as being of good character for the purposes of naturalisation. Secondly, how she takes account of the possibility that there may be cases where there is an explanation for the conduct which means that she can be satisfied that a person is of good character and so meets that requirement for naturalisation, is essentially a matter for her.

In the present case, that is done by version 6 of the policy in this way. Version 6 says that all aspects of a person’s character, negative or positive, must be taken into account and each application must be considered on an individual basis on its own merits. It then sets out various types of conduct that must be considered. It says, amongst, other things, that applicants who previously entered illegally or arrived irregularly will normally be refused citizenship. It provides for exceptional cases, that is cases where the application would normally be refused but where there are mitigating circumstances which would mean it would be appropriate to grant citizenship.

The question that arises on this appeal is whether version 6 of the policy misstates the law, or gives a misleading impression by omitting to explain the true legal position. Version 6 does not do either of those things. It correctly states the law, indicating what conduct (including illegal entry and irregular arrival) would normally result in a person being refused citizenship because such conduct indicates a lack of good character. It provides for exceptional cases where the applicant “would normally be refused citizenship but there are mitigating circumstances which mean it would be appropriate to grant” citizenship. It is clear, therefore, that a person will normally – not inevitably – be treated as lacking good character if he entered illegally or arrived irregularly. He can seek to explain why, notwithstanding the fact of his illegally entry or irregular arrival, he should be granted citizenship. The absence of any express reference to the circumstances in which a person who entered illegally or arrived irregularly may nonetheless be seen as having good character, does not render the policy misleading when it is read as a whole.

Indeed, in many ways, the facts of the present case provides good evidence that version 6 of the policy does not operate in a way that is wrong or misleading. Mr Alibiari applied for citizenship. He did have the opportunity to set out the reasons why he should not be viewed as a person lacking good character notwithstanding the fact that he paid people to smuggle him into the United Kingdom concealed in a lorry. He gave an explanation as to why he should be seen as having come directly from Egypt where he might be persecuted and why it was not reasonable for him to claim asylum in Italy, or in France when he was living with friends for a month, or in Belgium where he stayed for two weeks and made four attempts to enter the United Kingdom unlawfully. The Secretary of State considered those representations and rejected them. There has been no challenge to that decision.

Against that background, I can deal with Mr Goodman’s submissions relatively briefly. First,the decision in Howard does not interpret good character in a way that limits it to behaviour evidencing a propensity to engage in criminal or anti-social conduct. That case involved a person who had criminal convictions. The reference in paragraph 18 to character “in this context has a particular meaning and is essentially concerned with a propensity to criminal or other anti-social conduct” is a reference to the context of that case where what was in issue was criminal convictions. Underhill LJ also made it clear that he was not seeking to give a definition. Furthermore, and in any event, the decision is authority for the fact that it was lawful not to modify the guidance on good character for a certain group of applicants (those known as Windrush generation who came to the United Kingdom in particular circumstances). It is not authority on the definition of good character in paragraph 1(b) of Schedule 1 to the 1981 Act. Secondly, I do not consider that it is unlawful or irrational for the Secretary of State to treat what is described as a single instance of illegal entry as capable of demonstrating a lack of good character.

Thirdly, I do not consider that it was wrong to state that illegal entry or irregular arrival was normally indicative of a lack of good character. There might be a case where a refugee might be able to show that he bore no responsibility for the circumstances of his illegal entry or irregular arrival and so that the circumstances of entry did not demonstrate a lack of good character on his part. I do not accept, however, that the possibility that a person may lack responsibility has to be included in the description of the circumstances when illegal entry or irregular arrival would normally indicate a lack of good character. Nor do I regard that approach as in some way directing caseworkers to treat illegal entry or arrival as a negative factor when they should not because the individual lacks moral responsibility for the conduct. Version 6, read fairly and as a whole, says that a person who enters illegally or arrives irregularly will normally be refused citizenship but may exceptionally be granted it even if, normally, it would not be granted. The policy could be worded differently. It could provide for the explanation for the conduct to be taken into account at an earlier stage as part of a balancing exercise or as indicating that the conduct evidenced by the illegal entry or irregular arrival should be disregarded. The fact that version 6 is worded as indicating that such conduct will normally mean that a person will not be granted citizenship but that there may be exceptional circumstances where, nonetheless, it would be appropriate to grant citizenship does not make version 6 unlawful.

I do not regard version 6 of the policy as irrational. It is perfectly rational and reasonable for the Secretary of State to view illegal entry or irregular arrival as evidencing conduct or behaviour of the sort which normally should result in the refusal of citizenship because it will mean the applicant has not demonstrated that he is of good character. Finally, I do not see that there is any basis for concluding that there was any procedural error in the way in which version 6 came to be adopted in that the Secretary of State failed to investigate and to have regard to all material considerations. There is no evidential basis for such a claim. The fact that version 6 was adopted speedily does not evidence any procedural flaw.

For those reasons, I would dismiss ground 1 of the claim.

Mr Goodman submitted that version 6 of the policy discriminates against refugees, or requires, permits or encourages or induces case workers to act in a way which is contrary to Article 14, read with Article 8, of the Convention. First, he submits that version 6 fails to treat people who are in different situations differently, contrary to the decision of the European Court of Human Rights in Thlimmenos v Greece (2000) 31 EHRR 15. He submitted that refugees who were fleeing persecution had been treated in the same way as persons entering the United Kingdom not because they were fleeing persecution but who had a choice.

Secondly, Mr Goodman submitted that version 6 constituted indirect discrimination as refugees are more likely to have entered the United Kingdom by unlawful means than non-refugee applicants for British citizenship. He submitted that the Secretary of State had not justified the measure. He urged the court to scrutinise with care arguments about the aim of the measure when there was no evidence to support that measure. Further, although the burden lay on the Secretary of State to justify the measure, she could not show there were no less intrusive measures available. She need not, for example, have applied the measure to persons who arrived in the United Kingdom before 13 February 2025 when version 6 came into force. Or she could have set a period after which the illegal entry or irregular arrival would not be seen as evidence of bad character as was the case under earlier versions of the policy.

Mr Anderson, who dealt with this aspect of the claim for the Secretary of State, said there was no risk of version 6 leading to a refusal of citizenship in relation to a refugee who had a good reason which explained why the illegal entry or irregular arrival did not, in fact, demonstrate a lack of good character on his part. Further, on indirect discrimination, he submitted that the claimant had not established that version 6 did have a disproportionate impact on refugees and, in any event, the Secretary of State could demonstrate that the measure was objectively justified. In that regard, the court ought to accord a high degree of respect to the policy choices made by the Secretary of State in an area of social policy.

Article 14 of the Convention provides that:

“Prohibition on Discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8(1) of the Convention guarantees the right to respect for family and private life. Interferences with this right are acceptable where they are prescribed by law, seek to achieve a legitimate aim and are necessary in a democratic society: see Article 8(2) of the Convention.

In general terms the approach to the question of whether differential treatment is contrary to article 14 involves consideration of four broad issues, albeit that different cases express the issues in different language and some focus on particular issues (or focus on the question of justification). The four issues are:

A different form of discrimination may arise where a public body treats people in the same way but where their situations are materially different. That form of discrimination arose in Thlimennos v Greece (2001) EHRR 15. There, a person had been convicted for refusing to enlist in the army for national service. He had conscientious religious objections to military service. He was not appointed to a public post as a chartered accountant because of his criminal conviction. All persons with a criminal conviction were treated the same and would not be appointed to the post. The applicant complained that the rule failed to distinguish between those who had acquired a conviction because of their religious beliefs and others. The European Court found that there had been discrimination contrary to Article 14, read with Article 9, of the Convention noting at paragraph 44 (footnotes omitted) that:

“44.

The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

The essential claim here is that version 6 of the policy requires the decision-maker to treat refugees who enter the United Kingdom illegally in the same way as other illegal entrants when the position of refugees is different as they had a well-founded fear of persecution and were fleeing persecution.

A distinction needs to be drawn between the reasons why a person left his country of origin and the circumstances in which he came to the United Kingdom. A person may well be forced to flee from his country of origin because of a fear of persecution. That may not, however, explain why he entered the United Kingdom illegally or arrived irregularly. To take a simple example, if a person flees his country of origin he may travel to a country where he would be able to claim asylum. Or he may travel through other countries where he may claim asylum. If he does not do so, but instead continues to travel and enters the United Kingdom illegally or arrives irregularly, then he is not doing so because he is fleeing persecution. In that sense, he is in the same position as non-refugees who enter illegally or arrive irregularly. They are in the same position and are being treated in the same way. Conversely, if a refugee demonstrates that he had good reason for travelling to the United Kingdom and entering illegally or arriving irregularly in the way that he did, version 6 of the policy does not require a decision-maker to refuse that person citizenship. Version 6, therefore, does not give rise to the type of discrimination dealt with in Thlimmenos.

I turn then to the four questions relevant to whether there has been indirect discrimination. It is accepted that assessments of eligibility for citizenship fall within the scope of Article 8 and so Article 14 applies to such matters. It is accepted that being a refugee is capable of being a status within the meaning of Article 14 of the Convention.

There are in essence two separate questions that need to be considered. First, there is the question of whether Mr Alibiari has demonstrated that version 6 does have a disproportionate impact on refugees. Secondly, if so, can the Secretary of State demonstrate that the policy is objectively justified?

On the first question, it is important to identify the measure said to give rise to differential treatment. That is the guidance in version 6 of the policy which provides that illegal entrants and arrivals will normally be refused citizenship. The issue is whether version 6 has a disproportionate effect on refugees who enter illegally or arrive irregularly and who apply for citizenship as compared with non-refugee applicants who enter illegally or arrive irregularly. At one level, the effect is the same. All refugee applicants, and all other applicants, who are illegal entrants or irregular arrivals will normally be refused citizenship (and will have to show exceptional circumstances why citizenship should be granted).

The issue might be further analysed by reference to whether there is a greater likelihood that refugee applicants will fail to show reasons why they should be granted citizenship, having entered illegally or arrived irregularly, as compared with other applicants who did so. There is, however, no data available to suggest this. The data referred to on behalf of Mr Alibiari do not begin to address this issue. There is no reason to assume that refugees will be less likely to be granted citizenship, notwithstanding their illegal entry or irregular arrival, than any other applicant. There was some suggestion that there may be more refugees applying for citizenship in such circumstances as compared with non-refugees. But that reflects the fact that non-refugees are likely to fail to meet other eligibility requirements for citizenship. They would not be likely to have been granted indefinite leave to remain, for example, whereas refugees (who cannot be returned to their country of origin) are more likely to have been granted such leave. The fact that there may be more refugees who are illegal entrants or irregular arrivals applying for citizenship than non-refugees does not, therefore, demonstrate that version 6 of the policy has any differential impact. The key question is whether it has been shown that version 6 of the policy has a disproportionate effect on the group of refugees who enter illegally or arrive irregularly and who apply for citizenship as compared with non-refugees who entered or arrived illegally and apply for citizenship. Mr Alibiari has not demonstrated that that is the case. For this reason alone, the claim of indirect discrimination contrary to Article 14 of the Convention fails.

In any event, I am satisfied that the Secretary of State has demonstrated that version 6 of the policy is objectively justified. The parties are agreed that the appropriate approach to objective justification is the four stage approach set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700 per Lord Sumption JSC at paragraph 20. Further, it is right to bear in mind that the courts give appropriate weight to decisions taken in the field of social policy: see R (SC) v Secretary of State for Work and Pensions [2022] AC 223 at paragraph 161 per Lord Reed. The question of who should be granted nationality is a matter of social policy. It involves a decision on who should become a citizen of the state, and thereby enjoy the rights and benefits of citizenship. It is appropriate to accord significant weight to the decisions of the executive when determining whether (as Parliament requires in section 6 of the 1981 Act) a person is of good character such that he is eligible for citizenship.

Against that background, I apply the four stage test identified in Bank Mellat. First, the aim of version 6 of the policy is obvious from the legislative context (section 6 of, and paragraph 1(1)(b) of Schedule 1 to, the 1981 Act) and the terms of version 6 of the policy itself. The aim of the policy to determine the appropriate standards of conduct and behaviour required of those applying for British citizenship. The maintenance of appropriate standards for access to citizenship is a legitimate aim.

Secondly, version 6 of the policy is rationally connected to that aim. It gives guidance to decision-makers in individual cases on the standards of conduct of behaviour required of those applying for British citizenship. It identifies a range of behaviours which indicate that a person is not normally of good character, and that includes illegal entry or irregular arrival in the United Kingdom as that displays a disregard for the laws and processes governing entry to the country.

Thirdly, there are no less intrusive measures that could be taken. The policy is that persons who enter illegally or arrive irregularly should normally be refused citizenship although they may be still able to show reasons why, nonetheless, they should be granted citizenship. It was submitted that version 6 could have been framed differently, so that it did not apply to those who came to the United Kingdom before the policy was adopted or, like earlier versions of the policy, provided for the fact of illegal entry to be disregarded after a certain period. That, however, would be to require the Secretary of State to adopt a different policy and one that would allow people who would normally not be judged to have demonstrated good character, to be granted citizenship. That would not be a less intrusive measure. It would be a different, and diluted, measure. Further, the fact that earlier versions of the policy provided for certain conduct to be disregarded does not alter matters. The Secretary of State is entitled to consider current circumstances, and to judge what conduct or behaviour demonstrates, in the present circumstances, a lack of good character.

Fourthly, I turn to the question of whether the policy strikes a fair balance between the interests of the community and the rights of individuals such as Mr Alibiari, who wish to be granted citizenship. There is a public interest in ensuring that persons demonstrate good character before being granted citizenship. The state is entitled to determine who meets the standards of conduct and behaviour required of those seeking the rights and benefits of British citizenship.

The interests of individuals then need to be considered. First, there is no entitlement or right to British citizenship for those entering the United Kingdom from abroad. The insistence that a person must demonstrate that he is of good character does not therefore interfere with any entitlement or even expectation on his part. Secondly, the refusal of citizenship does not affect the ability of a refugee to remain in this country nor does it affect his ability to continue enjoying life with his family, if he has one, or the private life that he has built up in the country. As a refugee, he cannot be returned to his country of origin if he has a well-found fear of persecution there. Thirdly, the effect on individuals is, therefore, concerned with the future acquisition of benefits or rights. In this case, they have been described as the sense of belonging and security that citizenship would bring, the ability to obtain a British passport which would facilitate travel (including travel to meet other family members) and certain civic rights such as the right to vote. I have no doubt that the interest of the community in ensuring that those granted citizenship are of good character outweighs the interests of the individual. Further, version 6 of the policy permits individuals to put forward reasons why, exceptionally, they should be granted citizenship notwithstanding circumstances which would normally indicate that they are not of good character. Version 6 of the policy does strike a fair balance between the interests of the community in determining who should be eligible for citizenship and the interests of the individual.

For each of those reasons, I would dismiss ground 2 of the claim.

Mr Bishop dealt with ground 3 on behalf of Mr Alibiari. He took us through the provisions of section 149 of the 2010 Act. He referred to the relevant case law. He accepted that an equality impact assessment had been carried out in this case but, he submitted, that did not mean that the Secretary of State had complied with her duty under section 149 of the 2010 Act. He submitted orally that there were two distinct areas where the equality impact assessment was defective and therefore the Secretary of State had failed to carry out her duty under section 149. First, he submitted, the equality impact assessment had noted that the majority of small boat arrivals were from countries with populations which, in the United Kingdom, are ethnic minorities. He submitted that the Secretary of State had failed to analyse which ethnic minorities were likely to be impacted by the policy. Secondly, he submitted that the policy failed to analyse the situations in which women were more likely to be affected, referring to categories such as those who were victims of domestic abuse or trafficking.

Mr Anderson submitted that the Secretary of State had complied with her duty under section 149 of the 2010 Act. She was not required to undertake the kind of analysis identified by Mr Bishop.

It is possible to deal with this ground relatively briefly. It is not necessary to lengthen this judgment by setting out the provisions of section 149 of the 2010 Act. Mr Bishop took us through the provisions at the hearing and I bear them well in mind. Further, it is not necessary to review the specific case law. The relevant principles are well-known and not in dispute. Again, it would only lengthen this judgment unnecessarily to include a recitation of well-established and undisputed principles of law.

Section 149 provides that in the exercise of its functions a public authority must have due regard to the equality considerations which are identified section 149(1) and then further defined in subsections 149(3) to (6) of the 2010 Act. I accept that the Secretary of State was exercising a function, probably an implied power derived from section 6 and paragraph 1(1)(b) of Schedule 1 to the 1981 Act, to give guidance to individual decision-makers on what constituted good character within the meaning of paragraph 1(1)(b).

The Secretary of State was expressly reminded in the equality assessment of her duty under section 149 of the 2010 Act. That assessment also included an assessment of the effect of the policy on race and sex. I accept that the fact that the decision-maker has been provided with an equality impact assessment does not necessarily mean that the decision-maker is to be assumed to have fulfilled the duty under section 149 (any more than that the absence of such an assessment does not mean that the decision-maker must be taken to have failed to discharge the duty). The fact that the decision-maker has been reminded of her statutory duty, and that she has been provided with an assessment of the impact of a policy on those with protected characteristics, is, however, powerful evidence that the decision-maker has complied with the duty imposed by section 149 of the 2010 Act.

In the present case, the equality impact assessment considered, amongst other things, the possibility that the policy indirectly discriminated on grounds of race. Under the hearing, “Indirect Discrimination”, it noted that, from the data available in relation to small boat arrivals over an 18 month period from January 2023 to 2024, “the majority” of such arrivals were “from countries with populations which, in the UK, are minority ethnic”. In the light of the fact that the likelihood was that the policy would have a differential impact on grounds of race, the equality impact assessment considered whether the differential impact was justified. It considered that it was because the policy was based on the person’s conduct and was justified and proportionate.

In such circumstances, it is obvious that the Secretary of State was well aware of her duty under section 149 of the 2010 Act. She was well aware that the policy had a differential impact on persons because, as the assessment said, of their “colour, nationality or ethnic or national origin”. She, therefore, had to consider whether that was justified and concluded that it was. The Secretary of State clearly complied with her duty to have due regard to the matters specified in section 149 of the 2010 Act. There was no requirement to carry out further analysis on the different groups within those affected.

Similarly, the equality impact assessment considered the impact of the policy on sex. It concluded that there was no direct discrimination on grounds of sex. So far as indirect discrimination was concerned, it said that the policy affected those entering the United Kingdom illegally and was more likely, on the data available, to affect men rather than women. The Secretary of State clearly considered the impact of her policy on women. She was not required by section 149 of the 2010 Act to go further.

The grounds of claim referred to a failure by the equality impact assessment to assess discrimination of the type identified in Thlimmenos. That was not pursued in oral argument. In any event, for the reasons, given, there was no such discrimination.

For those reasons, there is no proper basis for considering that there was any breach of section 149. I would dismiss this ground.

For completeness, I would endorse the observations of Thornton J. in R Clarke-Holland) v Secretary of State for the Home Department) [2024] PTSR 617 at paragraph 106. There, Thornton J. was dealing with a decision of the Secretary of State to use two decommissioned airfields for accommodation for asylum seekers. An equality impact assessment had been carried out. Two local authorities argued that there had been a failure to comply with section 149 of the 2010 Act because the Secretary of State had carried out limited engagement with various bodies, and so it was said, did not have the information necessary to fulfil the duty, and because the assessment was not based on a prolonged period of use of the site. Thornton J. dismissed the claim and observed that:

“106.

What is required of the court when a breach of the public sector equality duty is claimed is a realistic and proportionate approach to evidence of compliance with the duty, not micro-management or a detailed forensic analysis by the court. The duty, despite its importance, is concerned with process, not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse. ( R (SG) v Secretary of State for Home Department [2016] EWHC 2639 (Admin) at [329]). ”

I would dismiss this claim. The Secretary of State was entitled to take into account the fact that a person applying for British citizenship had entered the United Kingdom illegally or had arrived irregularly and to treat that as indicating that, normally, the individual was not of good character for the purpose of satisfying the requirements for the grant of citizenship in section 6 of, and paragraph 1(1)(b) of Schedule 1 to, the 19891 Act. Version 6 of the policy was not incompatible with Article 14, read with Article 8, of the Convention. It did not require decision-makers to treat refugees less favourably than other applicants for citizenship. The evidence did not demonstrate that the policy had a disproportionately adverse effect on refugees applying for citizenship who had entered illegally or arrived irregularly in the United Kingdom. In any event, the Secretary of State had established that version 6 of the policy was objectively justified. The Secretary of State had complied with her duty under section 149 of the Equality Act 2010.

I agree.