Tue | May 26, 2020

Immigration Corner | Exercising discretion to naturalise adults or register minors

Published:Monday | August 13, 2018 | 12:00 AM

Dear Mr Bassie,

I was told that the home secretary may exercise discretion to naturalise adults or register minors, is this true? I would be grateful for any information.

- JM

Dear JM

Applications at the home secretary's discretion to naturalise adults or register minors can be made. The Home Office makes decisions on applications once the enquiries have been completed, and these are carried out in all cases to ensure that the statutory requirements have been met. The extent of these and the time taken to complete them vary from one application to another, depending on the applicants' circumstances.

Once enquiries and checks have been completed, applications are considered according to the following questions:

1. Are the statutory require-ments 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?

The following consideration will be applied in answer to those questions.

1. The statutory requirements are set out in the guides that accompany application forms. These are legal requirements and they cannot be ignored by caseworkers making decisions on behalf of the home secretary.

2. Discretion is limited only to certain requirements and the rest must be satisfied in full. These are called unwaivable requirements and these are also fixed in law. If requirements have not been met and discretion cannot be exercised, then the application must be refused, and the decision cannot be reversed.

3. Where discretion exists, it must be applied in a consistent and rational manner.

It should be noted that due to the large number of applications made and which are handled by a large team of caseworkers, the home secretary has agreed a policy on the exercise of their discretion that covers most eventualities.

Persons should be aware that just because discretion may be allowed does not mean that it must be exercised, and many applications are refused because they do not meet the additional criteria for the exercise of discretion.


Exceptional cases


In addition, the number of cases that are granted exceptionally is limited, and a worthy case might not match those exceptional cases that have already been considered and granted. Additional consideration may be given in case it is sufficiently exceptional as to grant and create an additional precedent. Please note that care will be taken to ensure that granting citizenship in such exceptional cases does not change the requirements. If the applicant's circumstances are not sufficiently compelling, then the application will be refused. The burden of proof is on the applicant to demonstrate that he/she satisfies 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 the home secretary cannot be satisfied that the requirements are met, then being bound under law, the application must be refused.

Applications are not kept under constant review, and a fresh application and fee must be submitted if an unsuccessful applicant wishes to become British.

Applications may be reopened where: -

- The correct requirements or criteria to decide the application were not used.

- The application was refused for lack of a response to enquiries when a response had been received but not linked with the application.

- The application was refused without allowing sufficient time for a response or completion of enquiries.

- The application was refused based on character grounds due to a criminal conviction which was either later quashed on appeal or involved a case of mistaken identity (i.e., the applicant was not the person convicted of the offence).

- The Home Office have failed to take account of relevant documents or information in their possession. This is not an exhaustive list.

Please note that the home secretary will not reconsider on grounds of:

- Long residence, where the statutory requirements are not met.

- Convenience of holding a British passport for business or other reasons, but the requirements were not met.

- Cultural reasons or reasons connected with ancestry.

- Past service in the armed forces.

- 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 (UK). Email:lawbassie@yahoo.com