High Court rules in favour of former soldier refused British Citizenship because of speeding offence

Tuesday 18 February 2014

The High Court today ruled in favour of a distinguished former member of the British Armed Forces who had been refused British Citizenship by the Home Office on the basis of a sole speeding offence for which he received 5 points and a £100 fine.

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Mr Poloko Hiri, a national of Botswana, had been described by senior military figures as an "intelligent, motivated and hard-working soldier" with an "exemplary record of conduct", who "had his character put to the test ... where his peers have had to depend on him in austere and challenging environments." Despite that evidence, the Secretary of State repeatedly asserted that Mr Hiri was not of "good character", insisting on the narrow basis of his speeding offence.

Today the High Court held that the Secretary of State's "decision-making process was legally flawed" and has set out that she should "re-consider her decision in accordance with the law". Mrs Justice Lang DBE warned against the Secretary of State applying her policy on the determination of 'good character' in a "mechanistic and inflexible" way and set out that the Secretary of State "must consider all aspects of the applicant's character" where "the statutory test is not whether applicants have previous criminal convictions - it is much wider in scope than that."

In this case, the High Court has held that Home Office official "deliberately excluded from his consideration the circumstances of the offence and the mitigating factors".

The Home Office frequently insisted in this case, in line with her policy, that it could not "overlook" or "disregard" Mr Hiri's offence. However, Mr Hiri had repeatedly made clear to the Secretary of State that he took full responsibility for the offence and accepted that it must be taken into account; he simply asked to have that conviction weighed in the balance against all of the evidence he had provided, in order to assess his character as a whole. The holistic approach advocated by Mr Hiri has been upheld by the High Court today.

Mrs Justice Lang DBE has set out that in these cases "The Defendant is entitled to adopt a policy on the way in which criminal convictions will normally be considered by her caseworkers, but it should not be applied mechanistically and inflexibly. There has to be a comprehensive assessment of each applicant's character, as an individual, which involves an exercise of judgment, not just ticking boxes on a form."

Toufique Hossain, Public and Immigration Law Director at Duncan Lewis and solicitor in the case says:

"Those who will read this judgment will see that the Judge applied fairness and common sense to this case. Our argument was simply that a man who gave his life to fight for this country, and in every other way but for one speeding offence, showed good character, should not be deprived of British Citizenship. It is a shame this had to go all the way to the High Court. The Home Secretary should have seen sense long ago instead of fighting this case. We are grateful to the British Armed Forces and to Veteran's Aid for all their support for our client."

The judgment is available here: Poloko Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin)

This case has been reported in the press, including by The Guardian.

Mr Hiri was represented by Raza Halim of Garden Court Chambers, who was instructed by Toufique Hossain of Duncan Lewis.

Raza is a member of the Garden Court Chambers Immigration Team.

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