Barbara Oluwaigbe Agbobu, R (on the application of) v Secretary of State for the Home Department

Should the Claimant, Barbara Agbobu, have permission to proceed with her judicial review of the decisions refusing to register her as a British Citizen which were made by the Defendant, the Secretary of State, on 7 August 2023 and 12 February 2025?

The Secretary of State says that permission should be refused because any challenge to the first decision is well out of time and although the claim was filed just over three months after the second of those decisions was made, that was outside the ‘promptly and within three months’ time limit imposed by CPR 54.5(1). She adds that there is an alternative remedy open to Ms Agbobu which is to make another application and, in any event, none of her grounds of claim are arguable.

In renewing her application for permission following a refusal on the papers by Alan Bates sitting as a Deputy High Court Judge, Ms Agbobu identifies the 12 February 2025 decision as the primary target of her claim because it was the product of an agreement to reconsider her application for registration as a British Citizen when she settled a judicial review of the 7 August 2023 decision through a consent order of 30 December 2024. She accepts her challenge to the 12 February 2025 decision was brought after the within three months limb of the time limit, but says there is good reason to extend time because there is medical evidence documenting the difficulties she has in preparing documentation and written submissions of the kind needed to file a claim which arise from a disability. As for an alternative remedy, her understanding was that her citizenship application would be considered afresh following the settlement taking into account everything she submitted and the Secretary of State’s suggestion that should reapply so that can happen, which would involve paying a substantial fee, is no substitute for what she believes she is entitled to already.

Her grounds of claim are arguable, Ms Agbobu says. In summary, the Secretary of State’s policy required the caseworker handling her application to refer it to the Minister for a personal decision. In any event, the caseworker’s refusal decision, which was based on her lacking good character because of a single, historical conviction, did not take into account the new evidence she submitted or give an adequately reasoned response. She adds that the narrow focus of the decision was a breach of the 30 December 2024 order. The 12 February 2025 decision was also legally flawed because its narrow focus was indirectly discriminatory and failed to make reasonable adjustments in breach of the Equality Act 2010 (‘the 2010 Act’) and it ignored mandatory relevant considerations related to her disability in breach of section 149 of that statute. She also argues it breached Articles 8 and 14 of the 1950 European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) which is made enforceable in this court by the Human Rights Act 1998 (‘the 1998 Act’).

These issues were argued before me on 3 February 2025 by Ms Agbobu acting in person and Mr Yarrow for the Secretary of State. They both provided helpful supplementary notes on some questions that occurred to me after the hearing.

At paragraphs ‎35 and following below I will deal with the timing of the claim, the alternative remedy point and then whether the grounds are arguable. First, I need to summarise the background and the legal and policy framework.

Ms Agbobu was born on 5 December 1986 in the UK where she has lived all her life.

On 13 November 2006, when she was 19, Ms Agbobu was convicted of a robbery offence and sentenced to five years imprisonment in a young offenders’ institution. She has no other convictions and says she is fully rehabilitated. She has had significant mental health problems throughout much of her life, including at the time of the offence. There is evidence before the court of two distinct forms of depressive disorder and PTSD. None of this is disputed by Secretary of State.

At some point, Ms Agbobu applied for and was issued with a British Citizen passport, but on 9 September 2015 the Passport Office decided to revoke it. According to the Secretary of State’s Summary Grounds of Resistance, no reasons were given until 5 May 2022, almost seven years later. In July that year, Ms Agbobu was invited to apply for British Citizenship and she did so on 22 September 2022. No decision was made in the following six months and so on 23 March 2023, Ms Agbobu bought a judicial review challenging both the delay and the revocation of the passport.

A decision on the citizenship application was then made and notified in a letter of 7 August 2023. It summarises the Secretary of State’s policy of normally withholding citizenship from a person who has been sentenced to a period of imprisonment for four years or more, notes the robbery conviction and then simply states:

“The chief caseworker has considered whether there are grounds to exercise discretion in your favour on an exceptional basis. However we are satisfied that there are insufficient grounds to outweigh your criminality and your application is therefore refused.

As explained in our schedule of fees, the application fee for British citizenship is not refundable and has been retained to cover the costs of handling and processing your application.”

Permission for the delay and passport revocation judicial review was refused by the Upper Tribunal on 8 August 2023. Ms Agbobu sought permission to appeal that refusal, but it was refused on 9 October 2023. Ms Agbobu appealed to the Court of Appeal, but it refused permission on 29 February 2024.

Meanwhile, Ms Agbobu emailed a request for reconsideration of the 7 August 2023 decision on her registration application to the Government Legal Department asking that it be forwarded to the Secretary of State. That was done on 18 September 2023.

Nothing further appears to have happened with the reconsideration request for several months and so Ms Agbobu sent a pre-action protocol letter challenging that state of affairs on 4 November 2024. She then filed a second application for judicial review with the Upper Tribunal on 18 November 2024.

On 13 December 2024 Ms Agbobu was sent a draft consent order which proposed to settle her judicial review on the basis her claim would be withdrawn and her registration application would be reconsidered.

The draft consent order was signed on the 18 December 2024 and sealed by the court on 30 December 2024. It states materially:

“UPON the Respondent having refused the Applicant’s British Citizenship application in a decision dated 7 August 2023;

AND UPON the Applicant agreeing to submit a reconsideration request on the prescribed Form NR: Reconsideration of Decision to Refuse British Citizenship, including all required evidence along with a sealed copy of this consent order, within 1 month of the date this consent order sealed;

AND UPON the Respondent agreeing to consider the Applicant’s reconsideration application within 3 months of the date that it is received from the Applicant, absent special circumstances by consent it is ordered that:-

1.

the Applicant do have leave to withdraw the above number claim for judicial review; and

2.

the Respondent do pay the Applicant’s reasonable costs …”

As agreed, Ms Agbobu then completed the form used by the Secretary of State for reconsideration requests mentioned in the order, Form NR, sending with it some information with it that had not been submitted with her original application. This included social services assessments and medical evidence relevant to her circumstances at the time of the robbery offence, along with evidence of the rehabilitation steps she had taken since, including engagement with therapy, and of her integration into contribution to society, including through paid NHS and voluntary work. The circumstances of the robbery were also explained in a detailed and very candid letter of representations. Its gist is that Ms Agbobu had a very troubled childhood including periods in care and had begun a relationship with an older man which would now probably be characterised as a relationship of coercive control. He pressurised her to assist in a robbery of a pub late one evening. The publican was present and restrained before the robbery was thwarted by the police. When sentencing took place, a report diagnosing Ms Agbobu as suffering with PTSD was taken into account by the court when the sentence was given, but she had other mental health disabilities besides that disorder. When at the Young Offenders Institution, Ms Agbobu embraced the opportunities for understanding and addressing her actions and laying the ground for avoiding similar behaviour in future and leading a productive life, something Ms Agbobu says she has done. Ms Agbobu’s Statement of Facts and Grounds explains that she had been unable to gather and present this information with her original application because of her mental health problems.

Having briefly reviewed this material, which runs to 78 pages, I agree with Deputy High Court Judge Bates that it would be highly relevant to the exercise of discretion on whether or not to grant British Citizenship notwithstanding a past conviction that led to a sentence of imprisonment for more than four years.

As noted already, the Secretary of State’s officials then proceeded to make a decision on the reconsidered application. This process will almost certainly have generated internal records of those involved, but this material has yet to be disclosed pursuant to the Secretary of State’s duty of candour.

It follows that the only first-hand evidence of the thinking of the officials responsible for the decision is found in the 12 February 2025 letter itself which, as I have said, refused Ms Agbobu’s citizenship application for a second time. The wording of this letter is important. It begins:

“I refer to your letter dated 18 December 2024 in which you have requested that we reconsider your application for British citizenship.

Your application was considered under 1(4) of the British Nationality Act 1981.”

The letter then refers to the Secretary of State’s policy guidance (which is discussed below) before continuing:

“Naturalisation and registration decisions can only be reversed where it is clear that the original decision was not taken in line with the policy and nationality law at the time the decision was reached. The applicant must demonstrate that they satisfy the statutory requirements.

Your application was received on 22^nd September 2022 and was refused on 28^th July 2023 [sic]. The reason for refusal was that you were deemed not to have met the good character requirement for naturalisation [sic]. This is because you were issued with a 5-year custodial conviction [sic] at a young offenders institution on 13 November 2006 at Croydon Crown Court.

In your reconsideration request, you contend that the decision to refuse your application breaches the Equality Act 2010 and was discriminatory towards you on the basis of your disability. You state that the SSHD failed to consider your PTSD, anxiety, and depression, and that the impact these conditions have on your life was not considered. You also state that these disabilities directly led to your criminal conviction. You have added that you were previously issued with a British passport in error by HMPO, which was subsequently revoked when the error was detected. As a result, you claim your finances have been negatively affected as the circumstances have inhibited your ability to find stable employment. You also contend that the SSHD failed to consider

[note, the remainder of this sentence is either missing or has been cut off by the photocopying of the document in the bundle]

Whilst a range of factors are considered when determining whether an individual has met the good character requirement, there are certain criteria which are expected to be met in order to demonstrate this requirement has been fulfilled.”

Parts of the policy guidance are then quoted. The letter continues:

“We are unable to address the matter of the revocation of your passport, nor your request for compensation. Reconsideration requests are based on whether a decision to refuse was not soundly based on law, policy, or procedure at the time of the decision – they are not a chance to submit representations which were not seen at the time of the initial decision and a fresh application would be required to take this mitigation into account. Irrespective of this, your request and the mitigating circumstances presented therein were taken under careful consideration of our Chief Caseworker. It has been determined that, whilst the circumstances you have described are regrettable, there are insubstantial [sic] grounds to have warranted an exceptional grant in this instance. Your mitigating circumstances were not provided at the time of your application. As above, decisions to refuse nationality applications can only be overturned when we can be satisfied that the initial decision was incorrect, based on nationality law and policy in place at the time. On the information available during our initial consideration of your application, the decision to refuse replication was reasonable and sound.

With regards to your disabilities, the subject of your mental health was considered at the time of your conviction. As you noted, this resulted in your sentence been reduced to 5 years imprisonment, however the offence for which you were convicted remains a serious one and forms a substantial factor in consideration of your application. As such, it is insufficient in demonstrating that the good character requirement is met as per the policy at the time of your application. Furthermore, we refute the contention that the decision to refuse your application breaches the Equality Act 2010, as this Act does not provide an absolute exemption for those who commit criminal acts from the consequences of such actions.

I have reviewed the consideration given to your application the decision made on it, I am satisfied the correct procedures were followed and the correct decision was taken to refuse. There are no grounds to reopen your application.

If you still wish to become a British citizen a fresh application for naturalisation [sic] will need to be made. Any fresh application will be decided on the basis of enquiries carried out that time.

I understand you will be disappointed…”

Leaving aside the errors marked ‘sic’ and including the misdescription of the application as being for naturalisation, there is a fundamental contradiction at the heart of this letter. On the one hand, it begins and ends by stating that evidence and representations not before the decision-making officer when the 7 August 2023 decision was made could not be considered and were not, such that the reconsideration focused on whether the original decision was sound (‘the first reading of the letter’). On the other, it suggests at one point that they were considered (‘the second reading of the letter’), hence “[i]rrespective of this, your request and the mitigating circumstances presented therein were taken under careful consideration” and the discussion of the significance of disability to the sentencing decision and the relevance of the 2010 Act. This contradiction has yet to be satisfactorily explained, as discussed below.

Ms Agbobu is deeply aggrieved at the decision to refuse her application once again. She says she expected proper, open-minded consideration of the material she submitted reflected in discussion of its significance in the reasons for any decision and, given what the material showed, a referral to the Secretary of State for a personal decision on her citizenship application. Ms Agbobu also says the effects of that decision are profound. She cannot take certain employment that is restricted on citizenship grounds, is unable to travel for any reason, but she feels excluded from British society and that her identity as a British person has been denied, and that this has exacerbated her health problems. She also considers the decision to have been made in a fundamentally unfair way and at the hearing referred me to R (Fayed) v Secretary of State for the Home Department [1997] EWCA Civ 2070 which established that high standard of fairness is appropriate in analogous naturalisation decisions, given what is at stake. If Mr Al Fayed, an Egyptian national, was entitled to that standard of fairness when his application for a second nationality was considered, surely even more care and fairness was necessary when a decision was made to refuse British citizenship to a stateless person such as her who has lived in this country all her life, Ms Agbobu said. Besides, the reasons given were meaningless because there was no discussion of the decision’s impact on her family and private life, less still a balancing of her interests against those factors that might weigh in favour of withholding citizenship.

Section 1(4) of the British Nationality Act 1981 provides:

“A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) , (1A) or (2)  shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.”

However, that entitlement is qualified by section 41A(1), which provides:

“An applicant for registration as a British citizen or British overseas territories citizen must be of good character.”

There are analogous good character provisions for naturalisation applications, as Fayed shows.

I note the 1981 Act does not distinguish between decision-making when an application is first made and when a refused application is reconsidered. On the face of the statute, identical considerations arise, including whether or not an applicant is of good character.

The approach the Secretary of State takes to the assessment of good character, regardless of whether she makes the decision personally or through her officials, is explained in the policy I have mentioned above, ‘Nationality: good character requirement’ (‘the policy guidance’). This too draws no distinction between decision-making on an initial application or reconsideration of a refusal. The following features are relevant to this case.

First, comprehensiveness:

“Consideration must be given to all aspects of a person’s character, including both negative factors for example criminality… and positive factors, for example contributions person has made to society.”

Secondly, in this context, ‘criminality’ means “if they have not respected or are not prepared to abide by the law” such a person “is unlikely to be considered of good character”. If an application has been made before 31 July 2023, refusal will be the normal course if the person has received a custodial sentence of at least four years. The whole sentence imposed by the court counts for these purposes, rather than time actually served. A subcategory of criminality concerns “[o]ffences which cause serious harm”, that is physical or psychological harm to a victim or victims that remains ongoing, or has contributed to a widespread problem that causes serious harm to a community or society in general. I note that it is not suggested the robbery Ms Agbobu attempted was such an offence.

Thirdly, assessing character where there is past criminality necessarily involves a balancing exercise. Caseworkers are told “you must carefully consider all relevant factors raised by the person to carefully weigh all character known issues against any countervailing evidence of good character or mitigating circumstances that might support an exceptional grant.” If there is criminality that would normally result in refusal of an application policy guidance stresses that caseworkers “must decide whether they are of good character, on the balance of probabilities” after taking into account “all available information concerning the applicant’s character, weighing any negative factors around criminality against mitigating factors such as contributions a person has made to society or any significant proportions of a person’s life spent not offending.” The “individual circumstances of the case” must be considered. A person who has recently committed offences is more likely not to be of good character than someone who committed one long ago. Age at the time of an offence is relevant too and “[i]solated youthful indiscretions will not generally indicate a person is of bad character if that individual has clearly been of good character since that time”. The number of offences, if there are more than one, must be considered as must the period over which multiple offences were committed. The seriousness of an offence is primarily indicated by the sentence or other disposal.

Fourthly, depending on the circumstances, a number of different mitigating factors may feature in the balancing exercise, including, potentially, “the relevance of particular circumstances in a person’s life when they committed the offence(s)” and “[g]enuine, meaningful attempts to change their behaviour and comply with the law that may indicate, on a balance of probabilities, they are now considered to be of good character despite earlier offending.” Activities addressing the cause of offending and which positively contribute to society such as voluntary work, may be indicative of good character.

Fifthly, there will be ‘exceptional’ cases “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”. Specific examples are given including a person who would normally be refused citizenship because they were convicted 40 years ago and received a two-year custodial sentence and they applied after 31 July 2023, but “the significant proportion of their UK residency… Spent in compliance with the law and avoiding wider character concerns, indicates they are now good character”. Another example is a 31-year-old person who had a single custodial sentence when aged 19, and has engaged in charity work since then. The policy guidance cautions that there is no direct connection between length of residence and good character “it is the applicant’s conduct during their residency that is the important factor”.

Last, the policy guidance describes a decision-making hierarchy. It is directed at caseworkers, who are told to raise any questions with their line manager or senior caseworker. All proposals to grant citizenship exceptionally because someone is considered to have good character despite criminality “must be approved by the chief caseworker”. Further, “[a]ny proposal to grant a person who has a custodial conviction… at a level that would normally lead to refusal, must be approved by ministers.”

Besides the policy guidance to caseworkers is a some guidance to applicants in a September 2023 form entitled ‘Form NR Reconsideration of decisions to refuse British citizenship’ (‘the reconsideration guidance’. Mr Yarrow told me this explains the Secretary of State’s approach to reconsideration. It states:

“It is up to the applicant to demonstrate that they do satisfy the requirements or additional criteria, or merit exceptional consideration. It is not for the Home Secretary to prove that they do not meet the requirements. If they cannot be satisfied that the requirements are met, then they are bound by law to refuse the application. Applications are not kept under constant review and a fresh application and fee must be submitted if an unsuccessful applicant wishes to become British.

We may reopen applications where:

• we have not used the correct requirements or criteria to decide the application

• we refused your application for lack of a response to enquiries when a response had been received but not linked with the application

• we decided your application without allowing sufficient time for a response or completion of enquiries

• we refused your application on character grounds due to a criminal conviction which was either later quashed on appeal or involved a case of mistaken identity (you were not the person convicted of the offence)

• we have failed to take account of relevant documents or information in our possession

This is not an exhaustive list.

We will not normally re-open your application if it was refused because you did not respond to enquiries or arrange a citizenship ceremony, including if this was because of a mistake by the person representing you. However, we may decide to do so in exceptionally compelling circumstances (for example, if you did not receive our correspondence because of an unexpected absence or illness).”

Although Ms Agbobu’s claim form identifies the 7 August 2023 decision as a target for her judicial review, she did not pursue this at the hearing and, in my view, she was right not to do so for three reasons. Her claim was filed with the court on 14 May 2025, so would be very significantly out of time to challenge the 7 August 2023 decision. Further, that decision was challenged in earlier judicial review proceedings filed in the Upper Tribunal on 22 November 2024 which were ultimately settled by way of the 30 December 2024 order. In any event, the focus of the present claim is the reconsideration that led to the 12 February 2025 decision. In these circumstances, and to ensure the scope of the claim is clear going forward, I will make it clear in the order giving effect to this judgment that permission is not granted to challenge the 7 August 2023 decision.

The challenge to the 12 February 2025 decision was also brought outside the three month part of the ‘promptly and within three months’ time limit having been filed on 14 May 2025 (16 May 2025 is given as the date in Deputy High Court Judge Bates’ order but nothing turns on this).

Ms Agbobu explains the claim’s timing in a witness statement of the same date, highlighting two matters. First, she says there that she wrongly thought she had to claim judicial review in the Upper Tribunal having done so with her past claims and filed it there on 11 May 2025. On 13 May 2025, she received an email from tribunal staff rejecting the filing. She called back straight away and asked for this to be reconsidered and the person she spoke to said they would take advice and get back to her. She was told on 14 May that the tribunal lacked jurisdiction and that she should resubmit her claim to the Administrative Court which she did the same day. She adds “the delay was not due to negligence but a genuine procedural error compounded by my mental health disabilities, which significant impairment ability to process legal and administrative information. I respectfully request that the court extend time in the interests of justice.” She also says that she had intended to file the claim even earlier, but it had taken her some time to prepare it because her cognitive functioning is affected by her mental health problems. She has produced medical evidence of this in the form of records and a series of letters including most significantly one from her GP at Hillcrest surgery dated 22 October 2025. She points out that there is no prejudice to the Secretary of State.

The Secretary of State did not engage with this evidence in her Summary Grounds of Resistance, but simply observed the claim was filed late and ought to be refused permission on that basis. Deputy High Court Judge Bates agreed, observing “the reasons given in her witness statement do not suffice to show that she could not, with reasonable diligence (within the parameters of her mental health difficulties, etc.), have submitted a claim within the 3-month period.”

I take a different view. Whether there ought to be an extension of time to file a judicial review claim under CPR 3.1(2)(a) depends primarily on consideration of the principles summarised at paragraph 6.4.4.2 of the Administrative Court Judicial Review Guide 2025, i.e. whether an adequate explanation has been given for the delay, the importance of the issues, the prospects of success and whether an extension will cause substantial hardship or prejudice to the defendant or any other party or be detrimental to good administration. If there is a public interest in the claim proceeding notwithstanding its lateness, that may also weigh in favour of an extension of time being granted. However, there is a further set of factors to be taken into account in a case such as this where a claimant is “vulnerable” in the sense discussed in paragraph 4 a of CPR PD 1A. If such a party’s “participation in the proceedings is likely to be diminished by reason of vulnerability” the court must take this into account and may make appropriate orders to ensure they can participate, consistently with the overriding objective: see paragraph 7 of the practice direction.

Returning to the question of whether time ought to be extended with these factors in mind, first, I consider that an adequate explanation has been given for the delay in filing this claim and that the reason for its lateness is a good one.

Having considered Ms Agbobu’s own evidence about her vulnerability along with the undisputed medical evidence of Ms Agbobu’s health difficulties and what her GP says, which directly addressses her ability to participate in litigation, I have no doubt that she is a vulnerable litigant whose full participation needs to be facilitated by the court. The ability of a person suffering with such disorders to prepare and file a judicial review claim is likely to be diminished by disorders of this kind which amount to vulnerability and her GP confirms in very clear terms that this happened here. The Secretary of State has not argued otherwise. I accept Ms Agbobu’s explanation for not preparing her claim earlier within the three-month period running from the decision.

Further, Ms Agbobu did attempt to file the claim within three months, albeit within the wrong court i.e. the Upper Tribunal. The mistake is not a difficult one to understand in circumstances where she had challenged the earlier August 2023 decision there. She only found out the tribunal would not consider her latest claim after the three-month deadline had passed and then acted extremely promptly to refile the claim with the Administrative Court with an equally prompt application for extension of time supported by evidence.

The judicial review time limits are important, not least for reasons of legal certainty, as is procedural rigour. Litigants in person are not exempted from the time limit or the court’s expectations they will comply with its published procedures. However, I do not consider there was serious delay here given the lack of prejudice and the promptness with which attempts were made to correct the position. Also weighing in favour of granting a short extension of time are the significance of the claim to Ms Agbobu as a stateless person who has lived in the UK all her life and its arguability on the grounds discussed below.

Taking into account all the circumstances, I consider there are good reasons to extend time especially when declining to do so would result in closing the door to the Administrative Court to a vulnerable party who, but for that vulnerability, would likely have filed her claim both promptly and within three months. I will order an extension of time accordingly.

The alternative remedy argument does not feature in the Secretary of State’s Summary Grounds of Resistance but appears to have its origins in a remark made by Deputy High Court Judge Bates in his permission refusal reasons:

“It seems to me that the Claimant’s interests may be best served by her making a fresh application for naturalisation, providing with it all the evidence that she wishes to be considered in support of that application. The Defendant should then take a fully reasoned fresh decision in which all the mitigating and compassionate features set out in the new application have been considered and weighed.”

Developing this point at the hearing, Mr Yarrow said that the Judge had been right to approach the issue at the heart of the claim – which was consideration of the new material – as he did because judicial review was a discretionary remedy and although the court could quash and order reconsideration of the 12 February 2025 decision, it would simply lead to a further refusal because the new material could not be taken into account under the Secretary of State’s reconsideration policy. It followed that the alternative remedy of reapplying was not only an alternative but a better one because it would ensure that material was grappled with. The remedy Ms Agbobu was seeking would not actually help her. I asked about the fee payable for a new application. He said it was not part of the court’s function to create a route for an application to be made without a fee. The “proper way” for Ms Agbobu to proceed was to reapply.

In reply, Ms Agbobu said that she should not have to reapply and pay a fee to secure what she had agreed with the Secretary of State would happen as a result of the 30 December 2024 consent order, which was comprehensive reconsideration of whether she ought to be granted citizenship.

In my view, there is no force at all in the Secretary of State’s argument about the opportunity to make a further application representing an alternative remedy to judicial review. The alternative remedy principle is concerned with routes other than judicial review through which an unwelcome public authority decision can be challenged, which are capable of providing an adequate remedy for a claimant i.e. addressing the public law wrong they are concerned about. In general, if there is a route that can be followed that provides such a remedy, that alternative should be used before applying for judicial review. There are some qualifications. The court will need to consider whether the remedy can address a claimant’s concerns as effectively as judicial review would and an exception to the general rule may be justified where there is a public interest in a claim being heard by the Administrative Court because it is likely to impact on others’ cases.

In this case the principle can be straightforwardly applied. Making a further application is not a route by which Ms Agbobu can raise and secure a determination of her concerns that the 12 February 2025 decision was not lawful. It is not an alternative remedy at all. Any practical benefits there may be of submitting a new application over pursuing a judicial review of that decision, cannot make it one.

In this part of the judgment I will focus on the grounds as set out in the Statement of Facts and Grounds and grounds for reconsideration in the light of Deputy High Court Judge Bates’ permission refusal because that is the case the Secretary of State has to meet. Ms Agbobu developed her arguments in a different order in her skeleton argument and at the hearing. There were also some new grounds, but these cannot be considered because she did not seek court’s permission to amend her claim.

Ms Agbobu says that the effect of the decision-making hierarchy I have described above at paragraph ‎32 is that, in her case, referral to ministers for a personal decision was mandatory and the failure to make a referral was a breach of the policy guidance. She points to a number of factors present in her case which weigh in favour of an exceptional grant, arguing their presence means that a minister needed to determine her application rather than the caseworker. Mr Yarrow says that this misinterprets the policy guidance.

This ground is not arguable. Referral is only required under the policy guidance if and when a caseworker decides to recommend a grant of nationality because they consider a person is of good character notwithstanding a criminal conviction that would normally indicate otherwise. Where a caseworker has not formed that view and makes no recommendation, referral to a minister for a decision is not mandatory in the policy, nor is there any indication that there ought to be referral in a borderline case.

This ground highlights the new evidence that was before the Secretary of State when the 12 February 2025 decision was made which Ms Agbobu says ought to have led to an exceptional grant of citizenship, but was unlawfully not taken into account. She points to the provisions of the policy guidance summarised above, stressing the need for the balancing exercise and the exercise of discretion on the facts of the case. Her single conviction, committed years ago, when mentally ill and subjected to pressure by her then partner, had to be considered in that context and then weighed against the remainder of a life that had been spent reaching an understanding of her actions and why they were wrong, avoiding future criminal conduct altogether and contributing to society with important, socially impactful work, both paid and unpaid. All of this been left out of account. Ms Agbobu’s grounds make a linked point about reasons. If these mitigating factors had been taken into account and the balancing exercise had been conducted, that ought to have been reflected in the reasoning of the 12 February 2025 letter. The mitigating factors ought to have been identified, weighed against the nature and timing of the offence, the balancing exercise acknowledged and an explanation given for why the balance had been struck as it had been.

In response to this ground, the Secretary of State has taken two contradictory stances which align with the two different readings of the 12 February 2025 letter I have identified above at paragraph ‎21. In her Summary Grounds of Resistance, she says the mitigating circumstances were carefully considered by the Chief Caseworker who determined that “whilst the circumstances you have described are regrettable, they are insubstantial grounds to have warranted an exceptional grant in this instance” and the offence was serious and remained a “substantial factor”. Mr Yarrow stresses this in his written response to the questions I have asked. There was not a rigid refusal to consider the new information about mitigating factors based on the reconsideration guidance. Instead, discretion was exercised. These submissions align with the second reading of the letter.

However, later in the Summary Grounds of Resistance the Secretary of State says emphatically, “a reconsideration is not an opportunity to submit new representations.” Echoing this at another point in the hearing, Mr Yarrow submitted that the terms of the reconsideration policy meant new evidence could not be taken into account, only submissions about failure to take into account what was before the caseworker who made the 7 August 2023 decision and that decision’s compatibility with law and policy. This aligns with the first reading of the 12 February 2025 letter and was why he said making a fresh application was not only an alternative remedy but a better, indeed ‘proper’ course. This was also the approach taken by Deputy High Court Judge Bates, as I have noted.

In my view, the fact that the 12 February 2025 letter can be read in two fundamentally different ways coupled with the very limited reasoning it offers for a decision that has profound effects for an applicant such as Ms Agbobu create a strong foundation for this ground. Mr Yarrow observes it was “unfortunate” the letter “lacks clarity”, but that in my view this understates the problem considerably. It needs to be kept in mind that citizenship grant or refusal decisions are not intended to be made in a cursory way whether on an initial application or as a result of reconsideration. They involve provision of a service for which a significant fee has to be paid. Both the policy and reconsideration guidance stress the care to be taken. Foreshadowing Ms Agbobu’s submission, the Secretary of State’s Summary Grounds of Resistance acknowledged the need for fairness established in Fayed. She also highlights Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 16 (‘SK’) for the proposition that the judicial review court ought to ask itself whether she was entitled not to be satisfied that an applicant is of good character. That is a further reason why reasons can be so important in this context. SK itself involved a forensic examination of the reasons given for the challenged refusal and their adequacy. It is trite law that, where reasons are given by a public body, even if they are not required as a matter of law, they must be comprehensible and address what is disputed and, if what an applicant seeks is not to be granted, explain why not: R v Criminal Injuries Compensation Board ex parte Moore [1999] 2 All ER 90 per Sedley J and South Bucks District Council v Porter (No. 2) [2004] UK HL 33 at paragraph 36 per Lord Brown.

Suppose the second reading of the 12 February 2025 letter is the correct one and so, notwithstanding the reconsideration policy, all of Ms Agbobu’s evidence and submissions were considered and a decision was nonetheless made to withhold citizenship. In those circumstances, Ms Agbobu has a strongly arguable case that the reasoning given in the letter is deficient because it simply does not address the material and the representations in her letter. Save for the brief references to ‘regrettable circumstances’, disability being taken into account at the time of sentencing and the offence being serious, the matters considered are not identified or discussed at all. Even more strikingly, there is no reference to the mandatory balancing exercise anticipated by the policy guidance having been undertaken. Even if it had been, on the face of the 12 February 2025 letter, multiple factors which the policy guidance recognises as relevant have not, in appears, been taken into account. They include the role played by Ms Agbobu’s co-defendant and the nature of his relationship with her, the timing of the offence and her age at the time, her disabilities at that time other than the PTSD reported to the sentencing judge, the many years that have passed since then and the similarities between her circumstances and the two examples given in the policy guidance I have mentioned above, her actions and insights when imprisoned, and her subsequent conduct and contribution to society.

I have kept in mind that the letter was not written by lawyers, but by a no doubt busy caseworker. However, this decision had the involvement of the Secretary of State’s designated Chief Caseworker, and so I would expect the matters she or he considered and the approach taken to be reflected in the letter. It follows that on the second reading of the letter, Ms Agbobu’s ground based on failure to take into account relevant factors and deficient reasoning is strongly arguable.

The Secretary of State’s position is no stronger if the first reading of the 12 February 2025 letter is correct, in other words, the new evidence and submissions were not fully considered under the policy guidance because there were “no grounds to reopen [the] application” under the reconsideration guidance and all of this could only be considered were there a fresh application. In my view, the Secretary of State has at least three difficulties if that was the approach of her caseworkers. First, the reconsideration guidance does not say new evidence and submissions cannot be considered. It sets out a series of bases on which the decision can be reconsidered, but adds, critically “[t]his is not an exhaustive list.” The list could not be exhaustive because the 1981 Act sets no limit on the Secretary of State’s discretion to reconsider an application for citizenship. On the contrary, as I have noted above, under both the statute and the policy guidance, there is no difference between an initial decision to refuse citizenship on the basis that a person lacks good character and a reconsidered decision on that same issue. Either way, having or lacking good character is a binary question for the purposes of section 41A(1) which under the policy guidance, must be answered by undertaking a comprehensive balancing exercise. It follows that, had the bases on which a citizenship application could be reconsidered been limited to those listed in the reconsideration policy, the policy would have straightforwardly fettered the Secretary of State’s discretion in breaching the principle explained in British Oxygen Co Ltd v Board of Trade [1971] AC 610. Mr Yarrow accepted this in his response to my post-hearing questions. It would also be at odds with the policy guidance. This analysis is also consistent with Fransman’s British Nationality Law, paragraph 22.8: “there is no rule of law prohibiting a reconsideration on other grounds, and other grounds are specified in a preamble to the Form NR itself”.

Either way, ground 2 is strongly arguable in my view.

Under ground 3 b, Ms Agbobu reframes much of ground 2 as one of procedural unfairness as, highlighting what she says is an unfair failure to consider all relevant material, allowing her an insufficient opportunity to put forward her full case by disregarding the new evidence and submissions and failing to exercise discretion. This is an example of different public law grounds being different aspects of the same alleged public law wrong and I consider these points are also arguable given what I have said above, albeit they add little to the principal arguments. However, I would add that, bearing in mind the principle explained in Fayed about the importance of giving a person seeking nationality an opportunity to answer the concerns that the Secretary of State has, open-mindedness and willingness to consider new evidence and submissions presented for the first time at the reconsideration stage may well be necessary to ensure procedural fairness in the process overall.

This ground challenges the Secretary of State’s approach to the disability-related features of Ms Agbobu’s application from several different legal starting points. Ms Agbobu says there was first an unlawful unwillingness to consider the new evidence and submissions despite their timing being related to her mental health disabilities. She characterises this unwillingness as unlawful indirect discrimination on disability grounds that has not been justified. As I understand this submission, it is that the first reading of the 12 February 2025 letter means that the reconsideration policy necessarily operates as a provision, criterion or practice which prevents consideration of new evidence and submissions which would, or were more likely to, have been provided when an application was first made by some non-disabled persons as compared to disabled ones, such as those with the disabilities Ms Agbobu has. if so, the effect of this would be that disabled persons are put at a particular disadvantage when compared to non-disabled ones, and Ms Agbobu was in this position herself when she sought reconsideration. The indirectly discriminatory impact of the reconsideration policy would ten need to be justified as a proportionate means of achieving a legitimate aim. Absent such justification, it would be unlawful under section 19(2) of the 2010 Act. Ms Agbobu says there is no such justification to the applicable legal standard, which is proportionality.

The Secretary of State does not engage with this point in any detail, simply observing in her Summary Grounds of Resistance that “the Equality Act 2010 does not provide an absolute exemption for those who commit criminal acts from the consequences of such actions.” That is certainly right but does not deflect Ms Agbobu’s argument about the disadvantage the reconsideration policy may present for disabled people if the first reading of the 12 February 2025 letter is right.

In my view, this point is arguable. It is not difficult to envisage circumstances in which some disabled applicants might find it harder to gather together and submit detailed evidence and submissions when they first apply, particularly when it is necessary to address the multifactorial and subtle nature of the decision which has to be made as to good character. It is arguable that Ms Agbobu’s own case is an example of that given what her GP says about the effect of her disabilities. I note, however, that is the only evidence filed thus far of the reconsideration policy operating in this disadvantaging way.

Next, Ms Agbobu also says that if the first reading of the 12 February 2025 letter is right and the reconsideration policy does not allow new evidence and submissions to be considered, that involves the application of a provision, criterion or practice which creates a particular disadvantage for some disabled people such as her. In those circumstances section 20 of the 2010 Act demands a reasonable adjustment to allow such material to be considered.

Again, the Secretary of State does not engage with point in detail. Again, I consider it is arguable. In circumstances where there is a significant disadvantage for the purposes of section 19 of the 2010 Act because of an application of a provision, criterion or practice there often will be particular disadvantage for purposes of section 20.

Ms Agbobu also says that the Secretary of State has not discharged her section 149(1) 2010 Act public sector equality duty to have due regard to, amongst other things, the need to avoid unlawful discrimination including under sections 19 and 20 and to advance equality of opportunity between persons who share a relevant protected characteristic, such as disabled persons, and persons who do not share it. In circumstances where there is an arguable breach of sections 19 and 20, I consider there is also an arguable section 149 breach. The Secretary of State has not addressed this point and, at present, there is no evidence before the court that either the policy or the reconsideration guidance has been subject to any form of structured review consistent with section 149 duty, such as an equality impact assessment (and the policy guidance does not explicitly acknowledge that factors made relevant by section 149(1) of the 2010 Act will sometimes have to be taken into account when the balancing exercise is conducted).

It follows that these points are arguable.

The first way Ms Agbobu puts this ground is to say that refusal of citizenship was an unjustified interference with her private and family life contrary to Article 8, bearing in mind her lifelong residence in, ties with and contribution to this country. It denies her formal recognition as a citizen and the rights and benefits that flow from that, despite the fact that this country is and always has been her home. The interference this represents cannot be justified as a proportionate means of achieving a legitimate aim, given it is wholly based on the commission of a single offence many years ago in circumstances where three mental health disabilities and pressure from another had affected her actions.

The Secretary of State argues that refusal of citizenship will not even engage Article 8 unless there is arbitrariness or discrimination, citing Montanta v SSHD [2001] 1 WLR 552, AHK & Ors. v Secretary of State for the Home Department [2013] EWHC 1426 (Admin)and Genovese v Malta (2014) 58 EHRR 25. Relying on the second reading of the 12 February 2025 letter, Mr Yarrow insisted that there could be no arbitrariness in circumstances where a reasoned decision was made taking into account relevant considerations. In her summary Grounds of Resistance, the Secretary of State goes further still, asserting that a person who has leave to remain in the United Kingdom can continue to enjoy family and private life here even if they are denied citizenship, and the absence of its benefits cannot breach Article 8.

I consider this ground is arguable. To start with, if the first reading of the 12 February 2025 letter is correct, there are very strong indications of arbitrariness, certainly to the standard of arguability, because many, indeed most, of the factors identified as relevant in the policy guidance will not have been considered in those circumstances. Further, if the first reading is correct, there certainly would have been no balancing exercise and that is a legally necessary component of any decision in which Article 8 is engaged.

Alternatively, if the second reading of the letter is correct, it remains arguable that significant factors have not been taken into account and there has arguably been no balancing exercise for the reasons I have already given. It is no answer to say that a person with indefinite leave to remain may continue to live in the United Kingdom. To do so is a privilege, not a right, and it can be taken away. Citizenship represents the ultimate level of formal integration into society, and the benefits of a permanent right to freely enter and live here, to passport facilities and to the right to certain protections when abroad, the vote, and opportunities for particular forms of employment and office reserved to citizens are all significant and arguably facets of private life. They are especially important to someone who has no other citizenship, such as Ms Agbobu. The value of these things and the impact of withholding them does not feature anywhere in the Secretary of State’s decision-making. None of this changes the legal position that withholding citizenship may be justified if it is neither arbitrary nor unfair. However, it means that a number of factors need to be properly taken into account and the very balancing exercise insisted on by the policy guidance needs to be conducted to avoid both of those public law wrongs occurring.

As far as Article 8 read with Article 14 is concerned, Ms Agbobu repeats her 2010 Act arguments about discrimination and failure to make reasonable adjustments to address the disadvantage disabled people otherwise face in relation to consideration of new evidence and submissions, adding there is a failure to treat different cases differently of the kind identified in Thlimmenos v Greece (2000) 31 EHRR 15. I consider these points are arguable when reframed as breaches of these articles read together. Ms Agbobu also argues that insufficient account has been taken of the relationship between her commission of the robbery and her mental health disabilities, the pressure she was under at the time and every choice she has since made. The Secretary of State mentions the fact that the sentencing judge took disability into account, but in my view this is no answer to Ms Agbobu’s argument because, according the detailed letter accompanied her application, the focus was on her PTSD only not her other disabilities and in any event the sentencing judge was engaged in a completely different exercise from that of the Secretary of State. The judge was considering what the state’s response ought to be to a serious crime. The Secretary of State was many years later considering whether that crime ought to be an absolute bar to citizenship. As the policy guidance recognises, the latter is a far more sophisticated, holistic decision-making process, focused on a much longer period and a far greater range of factors. Further, unlike the sentencing judge who made a decision before the public sector equality duty was brought into force in relation to disability-related matters under the Disability Discrimination Act 1995, the Secretary of State’s decision-making had to be informed by the due regard demanded to equality issues by section 149(1) of the 2010 Act.

Last, Ms Agbobu says that the clear terms of the consent order were breached. The Secretary of State had agreed “to consider [her] reconsideration application”. Doing so on the basis that the first reading of the 12 February 2025 letter was correct, was not complying with the order because much of what she wanted to and had submitted was left out of consideration. That was also the case even if the second reading of the letter was correct because even on that reading very little of her circumstances had been taken into account.

The Secretary of State’s response to this ground is to say that she was not required to consider the new evidence and representations, but had done so, in other words that the second reading of the 12 February 2025 letter was correct. The difficulties with this submission have already been rehearsed above. It does not sit comfortably with the wording of the letter, the alternative submissions made both in the summary Grounds of defence and at the hearing.

Although Ms Agbobu does not expressly describe this part of her challenge as being based on a legitimate expectation having been breached, it is clear that is its essence. Given the Secretary of State’s difficulties and the paucity of reasoning in the 12 February 2025 letter I have already discussed, I accept there is an arguable case that the Secretary of State breached a legitimate expectation of a comprehensive reconsideration of the application, taking into account the new evidence and submissions in a manner that was consistent with the policy guidance, including conducting the balancing exercise it describes.

Regardless of which of the two readings of the 12 February 2025 letter is correct, this is an arguable claim for judicial review in relation to the decision it communicated save in relation to the first ground. I will make an order with the standard post-permission case management directions once this judgment has been finalised. The papers currently before the Court are not well-organised and I will modify those directions to require a properly organised bundle of material relevant to the ground on which permission has been granted to be filed.

Last, I should say that, given my conclusions about Ms Agbobu being a vulnerable litigant, it is strongly recommended that specialist legal representation is sought for the full hearing and if that cannot be secured, the judge who deals with it will need to give thought to making appropriate arrangements to enable her to present her case effectively pursuant to Practice Direction 1A.