Alibiari, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This is a judicial review claim brought by the Plaintiff challenging version 6 of a Secretary of State policy entitled "Nationality: good character requirement" (in force 13 February 2025 to 30 April 2026). The Plaintiff is a national of Country A who entered the United Kingdom on 13 September 2016 after travelling through multiple European countries and arriving concealed in a lorry. He was granted refugee status and indefinite leave to remain. The Plaintiff applied for naturalisation; the Defendant refused the application on the basis that, under version 6, persons who previously entered the UK illegally or who arrived without required entry clearance after making a dangerous journey would normally be refused citizenship. The Plaintiff does not challenge the individual refusal decision and did not seek reconsideration; instead he challenges the lawfulness of version 6 of the policy on three grounds. The court (Judge Lewis and Judge Farbey) heard the claim over two days and proceeded despite submission and agreement that reconsideration rules could mean the policy's lawfulness might affect any future reconsideration.

Legal Issues Presented

1. Whether version 6 of the policy misinterprets, or gives irrational guidance about, the statutory "good character" requirement in the British Nationality Act 1981 and thereby directs unlawful decisions.
2. Whether version 6 gives rise to a real risk of discriminatory treatment contrary to Article 14 of the European Convention on Human Rights read with Article 8.
3. Whether version 6 was adopted in breach of the public sector equality duty in section 149 of the Equality Act 2010.

Arguments of the Parties

Plaintiff's Arguments

• Version 6 treats a single instance of illegal entry or irregular arrival as ordinarily indicative of lack of "good character", equating it with a propensity for criminal or antisocial conduct and failing to assess moral responsibility.
• Version 6 therefore either misstates the law or is irrational and, per R (A), may include a positive wrong statement or omission rendering it unlawful.
• Version 6 discriminates against refugees (directly or indirectly) because refugees are more likely to have entered unlawfully, and the Defendant has not justified the measure.
• The equality impact assessment was defective in failing to analyse which ethnic minorities would be affected and failing to analyse how women (including victims of trafficking or domestic abuse) would be affected.

Defendant's Arguments

• Version 6 identifies matters likely to indicate bad character but requires a fact-based, individual assessment and permits balancing of negative and positive factors, including exceptional grants.
• Illegal entry and irregular arrival are legitimately capable of indicating lack of good character; the Secretary of State is entitled to treat them as normally indicative of that state.
• The Plaintiff did not show that version 6 has a disproportionate adverse impact on refugees, and in any event the policy is objectively justified as a social policy measure.
• An equality impact assessment was carried out; the Defendant complied with the duty under section 149 and was not required to perform the further analyses the Plaintiff sought.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first set out the statutory scheme: section 6 and Schedule 1(1)(b) of the British Nationality Act 1981 require the Secretary of State to be satisfied that an applicant is "of good character" and place the evidential burden on the applicant. Version 6 of the policy identifies illegal entry and arrival after a dangerous journey as factors that will "normally" lead to refusal, while providing for case-by-case assessment and exceptional grants.

On Ground 1 (misinterpretation/irrationality), the court applied the test from R (A) and related authorities to ask whether version 6 positively misstates the law or gives a misleading impression. The court concluded version 6 did not misstate the law: it correctly identified conduct that may indicate lack of good character, allowed for individual assessment and exceptional grants, and did not compel unlawful decision-making. The court rejected the submission that a single illegal entry could not be treated as indicia of lack of good character and found the policy wording, read as a whole, lawful and rational.

On Ground 2 (Article 14 read with Article 8), the court analysed (i) whether the policy fell within the ambit of Convention rights (it did), (ii) whether like cases were treated alike or unlike cases required differential treatment (applying Thlimmenos), (iii) whether refugee status is a protected status (it is), and (iv) whether any differential treatment was objectively justified (applying Bank Mellat). The court found no Thlimmenos-style failure: refugees who can demonstrate reasons are not precluded from exceptional grants. The Plaintiff did not demonstrate a disproportionate impact on refugees; there was no data showing refugees were less likely to succeed than others in similar positions. The court held the policy pursued legitimate aims, was rationally connected to those aims, no less intrusive measures were plainly available, and it struck a fair balance between community interests and individual interests; accordingly the measure was objectively justified.

On Ground 3 (public sector equality duty under section 149 Equality Act 2010), the court noted the Defendant had carried out an equality impact assessment which expressly addressed race and sex impacts and had considered whether differential impacts were justified. The court applied a realistic, proportionate standard of review and concluded the Defendant had had due regard to the specified equality considerations; no further discrete analysis was required and the Plaintiff's suggested additional analyses did not show a breach.

Holding and Implications

CLAIM DISMISSED

Direct effect: The court dismissed all grounds of the Plaintiff's challenge and upheld the lawfulness of version 6 of the policy as it related to the issues raised. The refusal decision in the Plaintiff's individual application was not challenged in these proceedings and remains unaltered by this judgment. The court did not establish any new legal rule; it applied existing authorities to conclude version 6 was not unlawful, discriminatory, or adopted in breach of section 149.