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Theresa May's refusal to grant Egyptian family citizenship 'beyond scope' of law

Published 03/12/2015

Theresa May denied certificates of naturalisation to the Egyptian nationals because the man, who cannot be named, supported Osama bin Laden and al Qaida
Theresa May denied certificates of naturalisation to the Egyptian nationals because the man, who cannot be named, supported Osama bin Laden and al Qaida

The Home Secretary's decision to refuse British citizenship to family members of a failed asylum seeker assessed to be an Islamist extremist has been overturned by the High Court.

A judge ruled Theresa May acted unlawfully when she attempted to use the laws on naturalisation as a "deterrent" to other extremists.

Mrs May denied certificates of naturalisation to the wife and grown-up children of Egyptian national Hany El Sayed El Sabaei Youssef, who is listed by the UN Sanctions Committee as associated with al Qaida through Egyptian Islamic Jihad (EIJ).

Mr Justice Ouseley, sitting in London, ruled that Mrs May's decision had gone "beyond the scope and purpose" of the British Nationality Act 1981, which allows acquisition of citizenship through naturalisation.

The judge said Parliament had not "expressly provided" that citizenship could be refused to deter others "from engaging in extremism in the future".

The ruling was a victory for family members referred to as MM, GY and TY, who cannot be named for legal reasons.

Law firm Birnberg Peirce, which acted for the wife and children, welcomed the judge's ruling and said it was hoped all three would now be granted citizenship "without further delay, so that they may move forward with their family and professional lives".

The law firm said in a statement: "In the judgment of Mr Justice Ouseley, the discretion afforded to the Home Secretary by the 1981 Act was conferred by Parliament to further the statutory focus on the individual applicant for naturalisation, not for the pursuit of broad, general public policy objectives.

"Visiting the alleged 'sins of the father' on innocent family members, in pursuit of a policy of deterring 'potential future extremists', is neither fair nor rational."

In a ruling handed down today, the judge said the Home Secretary accepted that Youssef "no longer engages in extremist activities, albeit still holding to his views".

At a hearing in October, Michael Fordham QC argued that the family members were "blameless individuals whose good character is unimpeachable".

They were being penalised for "the sins of the father", a supporter of Osama bin Laden,.

Mr Fordham said executive action of the kind taken by the Home Secretary "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, appearing for the Home Secretary, said being given British citizenship was "a privilege - not a right".

He argued that it was neither irrational nor disproportionate to operate a public policy of denying it - as a deterrent - to individuals connected by blood or marriage to those who had engaged in extremist activities.

Mr Tam argued that it was not too harsh a policy as those affected were still able to go on living in the UK.

The judge was told the family have lived in the UK for more than 20 years, since May 1994, with indefinite leave to remain since May 2009.

The mother, aged 51, is mainly bedridden and lives with her husband. Their children have left home and are following professional careers.

The 27-year-old son lives with his wife, and the 26-year-old daughter is married with two British children.

The August 2014 decision letter refusing citizenship stated: "The Home Secretary considers in particular that it is important to deter potential extremists from involvement in extremist activity, including by making it clear that any extremist activity could affect the immigration and nationality status of close (family) members."

The judge said Youssef was refused asylum in the UK but attempts to deport him failed on human rights grounds in 1999 because of the risk that he would be tortured or ill-treated if he was returned to Egypt.

He was granted "exceptional leave" to remain in the UK, but is still liable to removal on the grounds that deportation would be "conducive to the public good".

A United Nations independent ombudsman concluded that Youssef had "repeatedly made statements which glorify the activities of Osama bin Laden and other prominent members of al Qaida and which encourage others to emulate them".

In 2005 he was placed on a UN sanctions list. UK attempts to have his named removed from that list on the grounds that, although he continued to hold extremist views, he was unlikely to re-engage in terrorist activities, had failed.

Youssef had been accused of remaining an active member of EIJ in the UK, and of being involved in the supplying of false documents on its behalf, in the preparation of an attack on a US embassy, expressing extremist views in public and stating support for bin Laden.

Youssef's appeal against a November 2012 decision not to grant him refugee status is still under consideration by the immigration tribunals.

Ruling in favour of his family, the judge said: "There is a real unfairness, on the face of it, in refusing naturalisation to someone who qualifies in all other respects, in order to provide a general deterrent to others, over whom the applicant has no control."

The judge said if Parliament had intended such an effect it would have provided for it expressly in the 1981 Act.

He added: "I accept that any Secretary of State for the Home Department is entitled to consider carefully what discretionary measures are available to deter and prevent extremist activity.

"The fact that its exercise on this basis is unprecedented does not show it to be unlawful.

"However, Parliament in 1981 could have considered this issue: the notion that criminals and other undesirable aliens, who would not themselves qualify for naturalisation, should be deterred from their activities by the prospect of their family members being refused naturalisation, cannot be new, albeit that the particular Islamist extremist context may be of more recent origin.

"Yet Parliament has not provided for this expressly in the Act, as in my judgment it would have done had so unusual a use of discretionary power related to an individual's circumstances been intended."

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