An unprecedented decision by the home secretary, Theresa May, to refuse British citizenship to the wife and children of a supporter of Osama bin Laden in order to deter other potential extremists has been ruled unlawful by the high court.
Mr Justice Ouseley quashed the refusal of British citizenship to the wife and two adult children of the Islamist extremist, who is a refused asylum seeker but cannot be deported to Egypt for fear he will be tortured.
The judge said May had acted unlawfully because parliament had not expressly provided that British citizenship could be refused to deter others from engaging in extremism in the future.
The Egyptian family, who have been in Britain since 1994, cannot be named and were referred to in court as HY, MM, GY and TY. The father has been described by the Home Office as an Islamist extremist and is listed by the United Nations as associated with al-Qaida through Egyptian Islamic Jihad.
The mother, aged 51, is bedridden and mainly lives with her husband, while their children, who are in their 20s, have left home and are following professional careers and have their own families. All were given indefinite leave to remain in Britain in May 2009.
The family’s barrister, Michael Fordham QC , told a hearing in October that the wife and children were “blameless individuals whose good character is unimpeachable” and were being blamed for the “sins of their father”, who was no longer regarded as a threat by the security services.
The judge said they were each regarded as being able to truthfully take the citizenship oath and pledge of allegiance in good faith. The Home Office said there were “no lurking doubts” or reasons to suspect they were in any way involved in extremism.
Their applications to become British citizens were rejected in August 2014. They were told in a letter: “In light of your close association with an extremist, your application for naturalisation as a British citizen has been refused. The home secretary considers in particular that it is important to deter potential extremists from involvement in extremist activities, including by making it clear that any extremist activity could affect the immigration and nationality status of close members.”
Fordham told the judge: “Executive action of this kind has no place in a liberal democracy governed by the rule of law, and the court is respectfully invited to say so.”
Robin Tam QC, for the home secretary, said British citizenship was a privilege and not a right, and it was not irrational to deny it as a deterrent to individuals connected by blood or marriage to those who had engaged in extremist activities.
Ouseley did not agree. He said there was “real unfairness in refusing naturalisation to someone who qualified in all other respects, in order to provide a general deterrent to others, over whom the applicants had no control”.
The judge said that if parliament had ever intended the home secretary to use such a discretionary power, it would have expressly provided for it. He said the effect of her approach, which he said was unprecedented, was to force applicants to choose between family and British citizenship in order to deter others from extremist activities.
