Immigration Corner: Seeking answers on naturalisation
Dear Mr Bassie,
I understand the home secretary has discretion to naturalise adults and register minors. Is this true? If it is, are there guidelines that govern these decisions?
There are instances where applications are made to the home secretary to use discretion to naturalise adults or register minors.
In such cases, the authorities will make decisions on applications once enquiries have been completed. It should be noted that enquiries are carried out in all cases to ensure statutory requirements have been met. The extent of these, and the time taken to complete them, varies from one application to another, depending on the applicants' circumstances.
Once the authorities have completed enquiries and checks, applications are considered in light of the following questions:
1. Are the statutory requirements set out in the British Nationality Act 1981 met? If not,
2. Is there discretion not to apply the requirement or to vary the extent to which it is applied? If so,
3. Are the additional criteria set out in the home secretary's policy on the exercise of discretion met? If not,
4. Has the home secretary previously granted citizenship to someone outside of the policy in the same circumstances? If not,
5. Are the circumstances sufficiently compelling and different from others that have been refused to justify consideration to grant and create a further precedent?
It should be noted that the British authorities will take into consideration whatever is gleaned, which will be applied in answer to those questions.
The statutory requirements are set out in the guides that accompany the application forms. These are legal requirements and cannot be ignored by caseworkers making decisions on behalf of the home secretary.
Discretion is limited to certain requirements and the remaining requirements must be satisfied in full. These are known as unwaivable requirements. This, too, relates to what is fixed in law. Hence, if requirements have not been met and discretion cannot be exercised then the application must be refused and the decision cannot be reversed.
Where discretion exists, it must be applied in a consistent and rational manner. Due to the large number of applications are received, and handled by caseworkers, the home secretary has agreed a policy on the exercise of discretion, that covers most eventualities. It is worth noting that just because discretion may be allowed, it does not mean it has to be exercised. Many applications are refused because they do not meet the additional criteria for the exercise of discretion.
An applicant should be aware that the number of cases that are granted through discretion is limited. A worthy case might not match those exceptional cases that have already been considered and granted.
Additional consideration may be given in a case if it is sufficiently exceptional as to grant and create an additional precedent. However, care will be taken to ensure that granting citizenship in such exceptional cases does not 'water down' the meaning of the existing requirements. If the applicant's circumstances are not sufficiently compelling then the application will be refused.
Please, remember that it is up to applicants to demonstrate they satisfy the requirements or additional criteria, or merit exceptional consideration. It is not for the home secretary to prove applicants do not meet the requirements. If the home secretary cannot be satisfied that the requirements are met, then the application is bound by law to be refused.
It should be noted that applications are not kept under constant review and a fresh application and fee must be submitted if an unsuccessful applicant wishes to become a British citizen.
- John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a fellow of the Chartered Institute of Arbitrators, a chartered arbitrator and a member of the Immigration Law Practitioners Association (U.K.).