Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE SALES
Between :
The Queen (on the application of Chockalingam Thamby) | Claimant |
- and - | |
Secretary of State for the Home Department | Defendant |
Mr Zainul Jafferji(instructed by theTamil Welfare Association) for the Claimant
Ms Suzanne Lambert (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 24/6/11
Judgment
Mr Justice Sales :
Introduction
This is an application for judicial review of a decision of the Secretary of State for the Home Department refusing the Claimant’s application for naturalisation as a British citizen, made under section 6(1) of the British Nationality Act 1981 (“the 1981 Act”). The Claimant is a Tamil national of Sri Lanka, who came to the United Kingdom in about December 2000 and sought asylum here.
Section 6(1) of the 1981 Act provides:
“(1) If, on application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”
Paragraph 1(1) of Schedule 1 to the 1981 Act provides in relevant part as follows:
“1 (1)… the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it - …
(b) that he is of good character; …”
The Secretary of State has refused the Claimant’s application on the grounds that she is not satisfied that the Claimant is a person of good character. The basis for the decision relates to the Claimant’s membership of and support for the Liberation Tigers of Tamil Eelam in Sri Lanka (“the LTTE”).
The facts
The Claimant was born on 15 August 1960. He entered the United Kingdom illegally in about December 2000 and claimed asylum on 3 January 2001. In relation to his asylum claim, the Claimant, with the assistance of solicitors, filled in the asylum application self-completion form and attached a statement (“the Claimant’s Statement”) to provide information about his claim to the Secretary of State. He claimed to have suffered harassment or ill treatment both at the hands of the forces of the Sri Lankan government and at the hands of the LTTE, by reason of his membership of the LTTE.
In paragraphs 1 to 3 of the Statement, the Claimant said:
“1. I was a member of LTTE from its inception since 1983. I had vegetable shop in the village called “Kallady”. When LTTE campaigning to achieve liberation for Tamil in early part of 1983, that at least a member of each family must taking part in their activities. At the time my family was contributing physically and financially for their activities.
2. One of my brothers Mr. Rajh was an armed trained LTTE member and he was killed in a battle against Vachanai police station attack on the 2nd of March 1995.
3. In Batticola I had rice cultivation and I was running a vegetable and grocery shop. LTTE used to purchase food items from my shop and during the night only they came to my shop. My village was surrounded with Muslim population and majority the of them against LTTE and their activities. …”
The Statement went on to relate that he had been picked up by the police on suspicion of involvement with the LTTE; he had convinced them that he was not involved; he had then also fallen under suspicion with the LTTE of being an informer; his daughter had been taken under compulsion by the LTTE for military training; and he had then left Sri Lanka out of fear of both the Sri Lankan authorities and the LTTE.
The Claimant was interviewed about his asylum claim by the Home Office Immigration and Nationality Directorate (as it was then) on 6 February 2001. The interview was conducted in Tamil via an interpreter. The Claimant’s answers to questions were recorded. In the interview the Claimant was questioned about, and expanded on, his written Statement. He answered a series of questions about his involvement with the LTTE as follows:
“Were you a member of the LTTE or a supporter?
I am a supporter, a helper. I was a member in 1983 and after my younger brother died in 1995 I left the LTTE.
What way did you help the LTTE?
I made financial contributions and supplied the food provisions from my shop.
When you were a member did you fight with the LTTE?
Yes.
Did you join them willingly and help them willingly?
On my own free will.”
A little later in the interview, he gave this answer:
“If you were a member of the LTTE since 1983 why would the police suddenly arrest you after 17 years, in Aug. 2000?
They were not aware that I was helping and fighting with the [LTTE].”
The Claimant’s claim for asylum was rejected by the Secretary of State in a decision letter dated 21 February 2001. He appealed; his appeal was allowed by Mr Such, an immigration adjudicator, in a decision promulgated on 15 October 2001. At the hearing of his appeal the Claimant gave evidence and again relied on the matters set out in his Statement and asylum interview. The Claimant was granted exceptional leave to remain on 11 January 2002. On 8 June 2007 he was granted indefinite leave to remain.
Since his arrival in the United Kingdom, the Claimant has been living quietly. He has found employment and made a life here. He has learned English to a good standard.
On 27 August 2008, the Claimant applied to be naturalised as a British citizen. The application was made by completing the relevant form (“Form AN”). Form AN makes it clear on its face that before completing it an applicant should read the accompanying guide (“Guide AN”). Guide AN emphasises that applicants must take care in completing the form and in making sure that they satisfy the requirements for naturalisation. The Guide also says:
“… applying for naturalisation is a straightforward process which does not require the use of specialist agencies. You should be capable of applying successfully by following the guidance provided in this guide and ensuring that you are able to satisfy the requirements. …”
The Claimant did, in fact, receive assistance from solicitors in completing his AN form. Section 3 of Guide AN deals with the good character requirement. For the purposes of considering the arguments in this case, the following parts of section 3 are relevant:
“To be of good character you should have shown respect for the rights and freedoms of the United Kingdom, observed its laws and fulfilled your duties and obligations as a resident of the United Kingdom. Checks will be carried out to ensure that the information you give is correct.
If you are not honest about the information you provide and you are naturalised on the basis of incorrect or fraudulent information you will be liable to have British citizenship taken away (deprivation) and be prosecuted. It is a criminal offence to make a false declaration knowing that it is untrue. …
You must give details of all criminal convictions both within or outside the United Kingdom. …
You do not have to give details of any offences which are “spent” under the Rehabilitation of Offenders Act 1974. Under that Act certain convictions may be regarded as “spent in the United Kingdom after certain periods of time from the date of conviction if you have not been convicted of other offences during that time. “Spent” means that it will be ignored. A leaflet about this called “Wiping the Slate Clean” is available from the Home Office, Direct Communications Unit, ….
Criminal record checks will be carried out in all cases. If you have a conviction which is not yet “spent” under the Rehabilitation of Offenders Act 1974, an application for citizenship made now is unlikely to be successful. We would therefore advise you to wait until the end of the rehabilitation period before making an application.
We will normally disregard a single conviction for a minor offence resulting in a bind over, conditional discharge or relatively small fine or compensation order, if a person is suitable for citizenship in all other respects. …
What if you haven’t been convicted but your character may be in doubt?
[AN Form, question numbers] 3.7 – 3.12 …
You must say whether you have been involved in anything which might indicate that you are not of good character. You must give information about any of these activities no matter how long ago this was. Checks will be made in all cases and your application may fail and your fee will not be fully refunded if you make an untruthful declaration. If you are in any doubt about whether you have done something or it has been alleged that you have done something which might lead us to think that you are not of good character you should say so.
You must also say here whether you have had any involvement in terrorism. If you do not regard something as an act of terrorism but you know that others do or might, you should mention it. You must also say whether you have been involved in any crimes in the course of armed conflict, including crimes against humanity, war crimes or genocide. If you are in any doubt as to whether something should be mentioned, you should mention it.
For the purpose of answering questions 3.8 to 3.11 the following information provides guidance on actions which may constitute genocide, crimes against humanity and war crimes.
This guidance is not exhaustive. Before you answer these questions you should consider the full definitions of war crimes, crimes against humanity and genocide which can be found in Schedule 8 of the International Criminal Court Act 2001 at the following web-site:
http://www.hmso.gov.uk/acts/acts2001/20010017.htm. Alternatively, copies can be purchased from The Stationery Office ….
It is your responsibility to satisfy yourself that you are familiar with the definitions and can answer the questions accurately.
Genocide
Acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group.
Crimes against humanity
Acts committed at any time (not just during armed conflict) as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder, torture, rape, severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons.
War Crimes
Grave breaches of the Geneva Conventions committed during an armed conflict. This includes an internal armed conflict and an international armed conflict. The types of acts that may constitute a war crime include wilful killing, torture, extensive destruction of property not justified by military necessity, unlawful deportation, the intentional targeting of civilians and the taking of hostages.
Terrorist Activities
Any act committed, or the threat of action, designed to influence a government or intimidate the public and made for the purpose of advancing a political, religious or ideological cause and that involves serious violence against a person; that may endanger another person’s life; creates a serious risk to the health or safety of the public; involves serious damage to property; is designed to seriously disrupt or interfere with an electronic system.
Organisations concerned in terrorism
An organisation is concerned in terrorism if it:
a. commits or participates in acts of terrorism,
b. prepares for terrorism,
c. promotes or encourages terrorism (including the unlawful glorification of terrorism), or
is otherwise concerned in terrorism. …”
Section 6 of Guide AN deals with the declaration to be made by an applicant for naturalisation. It included the following statement:
“Applications that fail generally do so because
- applicants do not tell us about offences and convictions, or
- the residence requirements have not been satisfied, or
- applicants are former asylum seekers whose applications and appeals were refused and they were, therefore, in breach of the immigration laws during any part of the residential qualifying period.”
Guide AN provides a glossary of terms. “Good character” is defined as follows:
“The quality that distinguishes you as someone worthy to become a British citizen through respect for the laws and values of British society and a regard for the official process for becoming naturalised.”
Section 3 of Form AN form dealt with the good character requirement. It stated:
“In this section you need to give information which will help the Home Secretary to decide whether he can be satisfied that you are of good character. Checks will be made with the police and possibly other Government Departments, the Security Service and other agencies.”
It set out a series of questions, of which questions 3.9 to 3.12 are relevant:
“3.9 In times of peace or war have you ever been involved in, or suspected of involvement in, war crimes, crimes against humanity or genocide?
3.10 Have you ever been involved in, supported or encouraged terrorist activities in any country? Have you ever been a member of, or given support to an organisation which has been concerned in terrorism?
3.11 Have you ever, by any means or medium, expressed views that justify or glorify terrorist violence or that may encourage others to terrorist acts or other serious criminal acts?
3.12 Have you engaged in any other activities which might indicate that you may not be considered a person of good character?
For the purposes of answering questions 3.9 to 3.12 please refer to the AN Guide which provides guidance on actions which may constitute war crimes, crimes against humanity, genocide or terrorist activities.”
The Claimant ticked the answer “No” against each of these questions. There was also a box in which further details could be inserted in relation to these questions. Since the Claimant had answered “No” to each of them, he wrote nothing in the box. The Claimant completed the declaration section of Form AN confirming that he had read and understood Guide AN.
On 15 January 2009, the Secretary of State issued a decision letter refusing the Claimant’s application for naturalisation. The letter summarised the Claimant’s statements relating to his application for asylum as follows:
“- He was a supporter and helper of the LTTE
- He joined the LTTE in 1983 and was a member until his brother died in 1995
- He was a voluntary member of the LTTE and took part in fighting whilst a member
- He assisted the LTTE by making financial contributions and supplying food from his shop …”
The letter went on to provide an overview of the LTTE and its activities (the letter was written before the final defeat of the LTTE by the Sri Lankan government in 2009). It noted that the conflict in Sri Lanka had been marked by large numbers of war crimes and crimes against humanity and referred to the assassination of the former Indian Prime Minister, Rajiv Gandhi, in 1991 by the LTTE by means of a suicide bomber. The letter stated that between 1983 and 1995 the LTTE were responsible for a range of war crimes and crimes against humanity under a series of headings (“Battlefield Crimes” - details were given of execution of prisoners by the LTTE ; “Abuse of POWs” - details were given of LTTE use of torture on a routine basis; “Attacks on Civilians” - details were given of widespread and systematic attacks by the LTTE on civilians and of forcible recruitment of civilians; “Suicide Bombers” - details were given of the widespread use of suicide bombers by the LTTE, including in the assassination Rajiv Gandhi; “Assassination” - details were given of a campaign of political assassinations carried out by the LTTE, both of fellow Tamils and those connected to the Sri Lankan security forces; “Religious and Ethnic Persecution” - details were given of the use by the LTTE of extreme violence against non Tamils; “Recruitment of Child Soldiers”; “Security in Areas under LTTE Control” - details were given of the operation by the LTTE of a shadow administration in areas under its control, where the LTTE committed arbitrary arrests, unlawful detentions, extrajudicial killings and other violations of human rights).
In its conclusion, the letter set out the Secretary of State’s reasons to refuse the Claimant’s application for naturalisation as follows:
“The research evidence shows widespread and systematic war crimes and crimes against humanity committed by the LTTE between 1983 and 2001. As a member of the military wing between 1983 and 1995, and as an active supporter between 1995 and 2001, it is considered that your client must have been aware of the crimes committed by the LTTE during this period. Your client also made significant contributions to the organisation for many years.
The LTTE was responsible for widespread and systematic War Crimes and Crimes against Humanity whilst your client was a member, contributing to its overall aims and activities, and therefore the Secretary of State is not satisfied he is a person of “good character” for the purposes of the British Nationality Act 1981.
Furthermore, on your client’s application form he indicated that he had no involvement in war crimes, crimes against humanity or acts of terrorism. However, the available evidence shows that the LTTE was responsible for war crimes, crimes against humanity and acts of terrorism between 1983 and 1995, i.e. whilst he was a member. His application form for naturalisation does not reflect his involvement with the LTTE. In particular, the evidence shows that the LTTE was responsible for the assassination of Rajiv Gandhi in 1991. It is not credible that he would not have been aware of the assassination of Rajiv Gandhi or of the convictions of LTTE members for this crime. Furthermore, it is not credible that he was unaware of the numerous acts of terrorism carried out by the LTTE between 1983 and 2001. As such, it is considered that your client must have been aware of the LTTE’s role in acts of terrorism. His failure to supply this information on his naturalisation form means that the Secretary of State is not satisfied he is a person of “good character” for the purposes of the British Nationality Act 1981.
I am therefore refusing your client’s application for nationality on the grounds of character.”
The parties were agreed that the two reasons given for the refusal of the Claimant’s application were discrete: each constituted a separate reason considered by the Secretary of State to be sufficient in itself for the refusal. I refer to them respectively as the first basis for refusal and the second basis for refusal.
In making his application, the Claimant had had the support of a Tamil support organisation, the Tamil Welfare Association (Newham) (“TWAN”). TWAN wrote to the Secretary of State on 29 January 2009 to suggest that the Secretary of State’s decision was made in error and was irrational. TWAN argued that the Secretary of State had not correctly followed relevant policy guidance, that the Claimant had not been involved with the LTTE during his time in the UK, that the LTTE had not been formally proscribed as a terrorist organisation until May 2006 and that if there had been doubts about the Claimant’s “good character and possible continued involvement in the LTTE whilst he was living in the UK”, he should have been invited for interview and offered an opportunity to explain. TWAN requested the Secretary of State to reconsider the decision and threatened judicial review proceedings.
TWAN followed that letter with two further letters in virtually identical terms (including the same errors in referring to the Claimant at certain points by the wrong name) dated 24 February and 25 February 2009. In these letters TWAN added further submissions in support of its contention that the Secretary of State’s decision was unfair and unreasonable. TWAN argued that the Secretary of State had failed to investigate properly whether the Claimant was aware that the LTTE was involved in actions that are considered to be war crimes, crimes against humanity and acts of terrorism (asserting that the Claimant had lived in the predominantly Tamil area where the LTTE would have been publishing its own propaganda, so that it was likely that the Claimant would have been unaware of these matters); had failed to interview the Claimant to identify his precise involvement with the LTTE and reasons for that involvement (including by consideration of the human rights abuses committed by both parties to the conflict in Sri Lanka) and to allow him an opportunity to answer the allegations of failing to provide accurate information on the AN form; and had failed properly to consider the Claimant’s good character at the time of the decision after some eight years in the United Kingdom without problem. The point was made that:
“There are numerous Sri Lankan Tamils in the UK who were involved with the LTTE in various ways who have been granted refugee status in the UK, and have now been naturalized.”
The TWAN letters also referred to Article 34 of the 1951 Refugee Convention. (In his submissions at the hearing, Mr Jafferji for the Claimant accepted that this did not add anything of substance to the Claimant’s other complaints, which were carried forward into his claim for judicial review). The letters again threatened judicial review proceedings.
By letter dated 13 March 2009, the Secretary of State responded to TWAN’s letter of 25 February 2009. The Secretary of State maintained her decision to refuse the Claimant’s application for naturalisation. The Secretary of State emphasised that the assessment of character for the purposes of the 1981 Act goes wider than consideration of an applicant’s activities whilst in the United Kingdom. The Secretary of State referred to her policy set out in the section of the Nationality Instructions entitled “War Crimes, Crimes Against Humanity and Genocide” (“the War Crimes Guidance”, para. [33] below), and gave an internet link to that policy. The letter stated:
“The extent of Mr Thamby’s involvement with the LTTE, to which he freely admitted in the several statements made in support of his application for asylum in 2001, is considered to cast serious doubt on his character such that he is ineligible for naturalisation as a British citizen. Mr Thamby was a long-term member of the LTTE. Based on a wide range of diverse sources the Secretary of State is satisfied that the LTTE has for many years committed widespread international crimes, often as a matter of policy. It is not credible that Mr Thamby had no awareness of the crimes committed by the LTTE. Although the LTTE was proscribed under the Terrorism Act in 2001 it is considered that the reasoning for this was based on the notoriety of the organisation’s crimes prior to 2001, when Mr Thamby was a member. It is also the Secretary of State’s view that prior to proscription the LTTE’s activities often amounted to acts of terror which were regularly reported on as such by the world’s media. It is reasonable to conclude that the LTTE committed international crimes and acts of terror during Mr Thamby’s membership and that he would have had knowledge of these offences.
The Secretary of State would also like to point out that the fact both sides have committed war crimes during the conflict does not impact on the assessment as to whether she can be satisfied that Mr Thamby is a person of good character. …”
On 23 October 2009 the Claimant issued the claim for judicial review. Permission to bring that claim was given. No issue on delay arose at the hearing before me.
Policy guidance
The 1981 Act does not define “good character”. The Secretary of State has issued policy guidance relevant to determining whether someone is of good character for the purposes of the 1981 Act. The basic concept of good character which the Secretary of State uses is that set out in the glossary in the Guide AN (para. [14] above). The Secretary of State has issued Nationality Instructions, Chapter 18 of which deals with applications for naturalisation under section 6 of the 1981 Act. Questions relating to good character are the subject of Annex D to the Nationality Instructions (“Annex D”).
Paragraph 1.2 of Annex D provides:
“The Secretary of State must be satisfied that the applicant is of good character on the balance of probabilities. To facilitate this, applicants must answer in full all questions asked of them on the application form for naturalisation or registration as a British citizen to inform the assessment of good character. They must also inform Nationality Group of any significant event (e.g. such as a criminal conviction) that could have a bearing on the good character assessment.”
Paragraph 2.1(b) and (e) of Annex D provides:
“Caseworkers should not normally consider applicants to be of good character if, for example, there is information to suggest: …
b) they have been involved in or associated with war crimes, crimes against humanity or genocide, or other actions that are considered not to be conducive to the public good (see sections 5 and 6). …
e) They had practised deceit in their dealings with the UK Government (see section 9); …”
Paragraph 2.3 of Annex D provides:
“If the application does not clearly fall into one of the categories outlined in paragraph 2.1 but there are doubts about the applicant’s character, then caseworkers may request an interview in order to confirm their final assessment of the applicant’s character.”
Section 3 of Annex D is entitled “Criminal activity”. Paragraph 3.1 deals with the Rehabilitation of Offenders Act 1974. It provides, at 3.1.1 to 3.1.3:
“3.1.1 … Under the 1974 Act, a conviction becomes “spent” after a specified rehabilitation period, which will vary depending on the sentence imposed. Spent convictions should not be taken into account in assessing the character requirement. Failure to declare an unspent conviction may itself cast doubt on the applicant’s truthfulness and therefore whether or not they are of good character (see section 9).
3.1.2 Caseworkers should normally refuse an individual who has an unspent conviction; however, there is discretion to overlook some minor one-off offences. …
3.1.3 Caseworkers should further note that where an individual has a conviction that can never become spent they will not normally be granted British citizenship, unless there are exceptional circumstances. …”
Section 5 of Annex D, entitled “War crimes, crimes against humanity and genocide”, provides as follows:
“5.1 If there is information to suggest that the applicant has been involved or associated with war crimes, crimes against humanity or genocide then caseworkers should immediately refer the case to the Deprivation Screening Team (DST).
5.2 DST caseworkers should consider the application in line with War Crimes guidance in Volume 2 Section 1.W.”
Section 6 of Annex D, entitled “Terrorism”, is classified as restricted and is not available for disclosure. It was not necessary to refer to the contents of it to determine the present claim.
Section 9 of Annex D is entitled “Deception”. Paragraph 9.1 provides:
“9.1 Caseworkers should count heavily against an applicant any attempt to lie or conceal the truth about an aspect of the application for naturalisation – whether on the application form or in the course of enquiries. Concealment of information or lack of frankness in any matter must raise doubt about an applicant’s truthfulness in other matters.”
Paragraph 9.5, entitled “Evidence of fraud in the immigration and nationality process”, provides in material part as follows:
“9.5.1 Where there is evidence to suggest that an applicant has employed fraud either:
- during the citizenship application process or
- in previous immigration application processes and
- in both cases the fraud was directly material to the acquisition of immigration leave or to the application for citizenship
caseworkers should refuse the application unless the circumstances in 9.5.2 apply. In such cases, the applicant should be advised that an application for citizenship made within 10 years from the date of refusal on these grounds would be unlikely to be successful.
9.5.2 Where deception has been employed on a previous immigration application and was identified and dismissed by UKBA or was factually immaterial to the grant of leave, caseworkers should not use that deception as a reason by itself to refuse the application under section 9.5.1. …”
The War Crimes Guidance referred to in paragraph 5.2 of Annex D is the guidance referred to in the Secretary of State’s second decision letter of 13 March 2009 (para. [23] above). Paragraph 2 of the War Crimes Guidance provides as follows:
“2. Citizenship applications from people suspected of involvement in war crimes or crimes against humanity
2.1 One of the requirements for naturalisation as a British citizen or a British overseas territories citizen is that the Secretary of State be satisfied that the applicant is of “good character”. Applicants should be refused if their activities cast ‘serious doubts’ on their character. Serious doubts will be cast if applicants have been involved in or associated with war crimes, crimes against humanity or genocide. Serious doubts will also be cast if applicants have supported the commission of war crimes, crimes against humanity or genocide or have supported groups whose main purpose or mode of operation consisted of the committing of these crimes even if that support did not make any direct contribution to the groups’ war crimes or crimes against humanity and genocide.
2.2 In ascertaining whether there are sufficient grounds for refusing an application for involvement in war crimes, crimes against humanity or genocide, consideration will be given to evidence directly linking the applicant with these crimes. It will also be given to factors such as the likelihood of his/her having been involved through membership of, or activities for groups responsible for committing war crimes, crimes against humanity or genocide. In determining the significance of these links, consideration will be given to such factors as the role of the applicant, the length of membership and his/her seniority within that group.”
Paragraph 4.2 of the War Crimes Guidance provides:
“When an unsuccessful applicant enquires about the possibility of being naturalised in the future we should explain that, whilst naturalisation is at the Home Secretary’s discretion and each application will be considered on its merits, it is likely that further application will also be refused unless the individual’s circumstances are by then materially different – for example, he or she has been brought before a competent court or tribunal to answer charges relating to the activities that led to the original refusal and has been acquitted.”
Paragraph 6 of the War Crimes Guidance sets out definitions of war crimes, crimes against humanity and genocide in terms similar to Guide AN. Paragraph 7.1, headed “The decision”, provides:
“The information about an applicant will be considered against information from reputable sources on war crimes and crimes against humanity in the country concerned and, where relevant, on the groups in which the applicant has been involved. Where these sources provide sufficient evidence to support the view that the applicant’s activities or involvement constitute responsibility for, or close association with, war crimes or crimes against humanity, the application should be refused.”
Paragraph 8 of the War Crimes Guidance is headed “Information relevant to war crimes or crimes against humanity”. It provides:
“8.1 This information will usually consist of one or more of the following:
- Admission or allegation of involvement in any of the crimes which constitute a war crime or crime against humanity.
- Admission or allegation of involvement in groups known to have committed war crimes or crimes against humanity. Consideration of the significance of this information will depend on the relevance and detail of the information provided by the applicant as well as the extent to which this information links the applicant with war crimes or crimes against humanity. …
8.3 The information indicating war crimes or crimes against humanity may range from a brief claim to have been a member of a particular group or profession with no indication as to the length, dates, location or nature of these activities, to a detailed and time framed account including information about the applicant’s activities, responsibilities and level of seniority within an organisation of interest.
8.4 Although an applicant will occasionally openly admit to having committed crimes which constitute war crimes or crimes against humanity, evidence which may indicate these crimes is much more likely to take the form of a claim of involvement in a particular group or profession which is known to have committed war crimes or crimes against humanity. However in these cases, the likelihood of an applicant having taken part in these crimes will often depend on factors such as the nature of the group itself, the degree to which the group has involved itself in war crimes or crimes against humanity and the nature of the involvement of the applicant.
8.5 Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards war crimes or crimes against humanity, such as, supplying help which the supplier knows is likely to contribute towards the committing of war crimes or crimes against humanity. This could include for instance providing transport to take prisoners to a site where they are going to be murdered.
8.6 In certain cases membership of a particular group may be sufficient to determine that an applicant has been supportive of, and in some cases complicit in, war crimes or crimes against humanity committed by that group. In such cases consideration will be given to the length of membership and the degree to which the group employed war crimes or crimes against humanity to achieve its ends.
8.7 Occasionally there will be evidence on file of an allegation against the applicant of involvement in war crimes or crimes against humanity, for instance an allegation letter to UKBA from a third party or a claim from the applicant that he/she will face court action from the authorities for war crimes/crimes against humanity if returned to his own country.”
Paragraph 9.1 of the War Crimes Guidance, headed “Mitigating circumstances”, provides:
“Where applicants have been involved in war crimes or crimes against humanity, but where there is evidence of mitigating circumstances, decisions will be made with consideration of applicable defences under international criminal law.”
Part (D) of paragraph 10 of the War Crimes Guidance is headed “Insufficient or vague information about applicant’s activities”. It provides:
“10.11 Where there is some indication of involvement in war crimes or crimes against humanity but this information is vague or lacking in detail or where it appears that the applicant has previously been evasive about his activities, more information should be sought from the applicant either via written questions or an interview. This may arise for instance where there is evidence indicating involvement in war crimes or crimes against humanity but there is not enough evidence either to support a refusal or to consider that the good character requirement has been satisfied.
10.12 Examples could include cases where the applicant states that he/she was a long term member of a particular group but where there is little or no information as to that person’s activities or level of seniority within that group, or where he states that he was a commander, with no indication as to where or when he commanded anyone or what this role entailed. Further enquiries should not, however, be used as a ‘fishing trip’ and caseworkers should have a clear idea of how the answers to the questions would help in making a decision on the case.”
The grounds relied on in the claim for judicial review
There is no right of appeal in relation to a decision under section 6 of the 1981 Act on a naturalisation application. Any challenge to the lawfulness of such a decision must therefore be brought by way of judicial review. At the hearing before me, Mr Jafferji submitted that the Secretary of State’s decision to refuse naturalisation on the basis that she was not satisfied that the Claimant is a person of good character was flawed on four grounds:
In relation to the first basis of refusal, the Secretary of State failed to consider the Claimant’s application in accordance with her own policy, in that she did not undertake a detailed examination of the precise nature of the Claimant’s activities as a member and supporter of the LTTE and failed to consider the context in which the Claimant acted and whether there were any mitigating circumstances;
Again in relation to the first basis of refusal, the Secretary of State, by focusing exclusively on the Claimant’s activities in Sri Lanka prior to his arrival in the United Kingdom in December 2000, failed to make a proper assessment of the Claimant’s current character;
In relation to the second basis of refusal, the Secretary of State improperly concluded that the Claimant was not a person of good character because he stated in the application form that he had not been involved in war crimes, crimes against humanity or acts of terrorism. Mr Jafferji submits that the Claimant’s answers in section 3 of Form AN were accurate, contrary to the Secretary of State’s conclusion that they were inaccurate; and
In relation to both the first and the second bases for refusal, the Secretary of State’s decision to refuse the Claimant’s application was taken in breach of her duty of fairness, without giving the Claimant an opportunity to address her concerns with respect to his being of good character: the Claimant could not reasonably have been aware of the Secretary of State’s concerns nor the wide notion of involvement in war crimes which she proposed to employ; he was, it was said, unaware of the abuses committed by the LTTE, knew of numerous persons from Sri Lanka with a history of similar involvement with the LTTE who had been naturalised as British citizens and so did not anticipate that he should seek to address the Secretary of State about such concerns.
Analysis
Ground (i) – failure to follow policy
The grant of British citizenship under section 6(1) of the 1981 Act is not a fundamental human right: R v Secretary of State for the Home Department, ex p. Al Fayed [2001] Imm AR 134, [93] (Kennedy LJ); R (AHK and others) v Secretary of State for the Home Department [2009] EWCA Civ 287, [10]. As Blake J put it at first instance in AHK (in a judgment entitled MH and others v Secretary of State for the Home Department [2008] EWHC 2525 (Admin)), at [41], “In general terms … no claimant [under section 6(1) of the 1981 Act] has a right to British citizenship, but only a right to have an application fairly considered under the statutory scheme.”
There is no statutory definition of the requirement of “good character” in paragraph 1(1) of Schedule 1 to the 1981 Act. It is a term capable of carrying a range of meanings, and requires an exercise in evaluation to apply it. It is established that this means that the proper approach of the courts to considering the standard of good character adopted by the Secretary of State and the application of the concept in a particular case is to ask whether the standard and its application were such as could reasonably be adopted in the circumstances: ex p. Al Fayed [2001] Imm AR 134, [41] (Nourse LJ), [93] (Kennedy LJ) and [97] (Rix LJ). It is open to the Secretary of State, so long as she acts rationally, to adopt a high standard of good character, and one higher than other reasonable decision-makers might have adopted: ex p. Al Fayed at [41] (Nourse LJ).
This is what the Secretary of State has done in the present context. The standard of good character given by paragraph 1.2 of Annex D and paragraph 2.1 of the War Crimes Guidance is a high one, since the onus is on the applicant to satisfy the Secretary of State that he is of good character, and it is declared that there will be serious doubts which may prevent him from doing so if he has “supported” a group “whose main purpose or mode of operation consisted in the committing of [war crimes etc], even if that support did not make any direct contribution [to the war crimes]”. To give rise to serious doubts as to his good character for the purposes of naturalisation, it is not necessary that the applicant should have been personally directly involved in the commission of war crimes, nor that any assistance he gave to an organisation involved in committing war crimes should have been linked to its commission of war crimes in some indirect way. It may be sufficient that the applicant has, by his support for the organisation and with an appreciation of its willingness to use barbaric methods, gone so far as to show that he is prepared to ally himself with it in a way which reveals a marked lack of commitment to the values underpinning British society, contrary to the concept of “good character” set out in the glossary in Guide AN (para. [14] above). There is no irrationality on the part of the Secretary of State in deciding to adopt this approach to deciding whether the “good character” requirement in the 1981 Act is met.
In this regard, I do not accept the submission by Mr Jafferji that, reading the War Crimes Guidance as a whole, the wide approach adopted by the Secretary of State (to the effect that mere support for an organisation, such as the LTTE, whose mode of operation consists to some material degree in the committing of war crimes) is incompatible with the policy contained in that Guidance. Mr Jafferji pointed to other paragraphs in the War Crimes Guidance, as follows, which appeared to be arguably in conflict with the wide approach indicated by paragraph 2.1, and suggested that the guidance in paragraph 2.1 should be read down and narrowed in the light of them:
the second sentence of paragraph 7.1, dealing with “The decision” (para. [35] above), is directed to an applicant’s personal responsibility for or involvement in war crimes etc, and does not explain what should happen in the wider category of case concerning support for an organisation of the relevant type. A similar point can be made about the way in which paragraph 2.2 is formulated (para. [33] above);
the guidance given in certain paragraphs in section 8, under the heading “Information relevant to war crimes or crimes against humanity” (para. [36] above), seems to be directed to a high level of personal involvement in or responsibility for war crimes etc. Paragraph 8.4 refers to claims of “involvement in a particular group … which is known to have committed war crimes or crimes against humanity”, but seems to indicate that in such cases attention should be directed to determining “the likelihood of an applicant having taken part in these crimes”. Paragraph 8.5 states that “Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards [such crimes], such as supplying help which the supplier knows is likely to contribute towards the committing of [such crimes]”, and then gives an example suggesting a very close connection between the war crimes and the contribution by the applicant. Even paragraph 8.6, which concerns membership of a particular group, refers to this both as an indication that an applicant has been supportive of war crimes committed by that group and as a possible indication of personal complicity on the part of the applicant in such crimes, which might be taken to confuse the issue somewhat;
the guidance on “Mitigation” in paragraph 9.1 refers to cases “Where applicants have been involved in war crimes or crimes against humanity …” (para. [37] above). No reference is made to possible mitigation in relation to the wider class of case of mere support for an organisation whose mode of operation consists in the commission of such crimes;
paragraphs 10.11 and 10.12 (para. [38] above) are general in their application, but refer to cases “Where there is some indication of involvement in war crimes or crimes against humanity …”, which does not explicitly address the wider category of case set out in paragraph 2.1.
Although I think there is some force in these points (and I think that it might be desirable for the Secretary of State to review the War Crimes Guidance in light of them, so that the guidance could perhaps be reformulated with greater clarity), I consider that the War Crimes Guidance does set out and support the wider approach to the question of doubts regarding good character which the Secretary of State has applied in this case. It is for the court to construe policy guidance, making due allowance for evaluative judgments by the Secretary of State in applying it: First Secretary of State v Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520 at [16]; Accenture Services Ltd v HMRC [2009] EWHC 857 (Admin), [33]-[36].
On an objective approach to the interpretation of the War Crimes Guidance, paragraph 2.1 sets out the basic test which the Secretary of State has adopted for “good character” in this context, and the rest of the Guidance falls to be read in the light of that (rather than the other way round, as Mr Jafferji contended). The paragraphs of the War Crimes Guidance referred to in para. [43] above are to be read as giving guidance focused on cases of involvement of the applicant in war crimes, which may be adapted as appropriate when cases of support for particular groups are under consideration. Moreover, the main thrust of paragraph 8.6 (para. [36] above) is directed to the wider type of case referred to in paragraph 2.1, namely where membership of a particular group may indicate support for war crimes committed by that group.
Mr Jafferji did not dispute that the LTTE had engaged in the activities summarised in the Secretary of State’s letter of 19 January 2009. In my view, on the basis of those activities, the LTTE could properly be characterised by the Secretary of State as a group whose mode of operation consisted of the committing of war crimes and crimes against humanity in the period 1983 to 1995, for the purposes of the application of the test in paragraph 2.1 of the War Crimes Guidance.
As Ms Lambert for the Secretary of State emphasised, the War Crimes Guidance and the Secretary of State’s decision in this case do not suggest that membership of or support for the LTTE for any period of time will always mean that an applicant for naturalisation will be regarded as not being of “good character” for the purposes of the 1981 Act. The question in each case will be whether there has been a sufficient level of support given to the LTTE, with awareness that it used war crimes and crimes against humanity as a material part of its mode of operation, as to raise serious doubts about the commitment of the applicant to respect the values of British society.
Mr Jafferji submitted that the Secretary of State failed to examine the particular details of the Claimant’s case in line with the approach set out in the War Crimes Guidance to enable her to arrive at the conclusion that the Claimant’s application for naturalisation should be refused. Subject to what I say in relation to Ground (iv) below (fairness of the procedure used by the Secretary of State), I do not accept this submission. It is clear from the decision letters that the Secretary of State had careful regard to the individual circumstances of the Claimant’s case. According to the information available to her, the activities of the LTTE were so widespread and so notorious that she could rationally conclude that the Claimant was likely to have been aware of the methods used by the LTTE. She was also entitled to have regard to the Claimant’s length of membership of the LTTE, voluntarily assumed by him (1983-1995), the nature of his membership (he fought for them), and the lengthy period of material support provided by the Claimant to the LTTE after he ceased to be a member, up to 2000. This consideration of the individual circumstances of the Claimant’s case was in accordance with the approach set out in the Guidance: see in particular paragraphs 2.2 and 8.6.
The Secretary of State’s decision did not involve any failure to consider mitigating circumstances. In part, in a case of this kind, the Secretary of State’s consideration of the level of the Claimant’s involvement in the LTTE implicitly covered one form of possible mitigation (the contention that his involvement was not great). The Secretary of State expressly considered a second form of mitigation (the suggestion that the Claimant was not aware of the relevant activities of the LTTE), and rejected it on proper grounds on the facts. (In this regard it is also worth noting that the Claimant, to support his case on judicial review, adduced an expert report of 2011 from Professor Anthony Good, about the circumstances in Sri Lanka at the relevant time: asked the question, “Was the Tamil population generally aware of the LTTE’s commission of acts of terrorism, war crimes, human rights abuses, crimes against humanity etc?”, Professor Good did not suggest that the answer was anything other than that they were generally aware of these things; although this material was not before the Secretary of State when she took her decisions, it certainly does not lend support to the Claimant’s own suggestion that he was unaware of the LTTE’s activities). The Secretary of State also expressly considered a third form of mitigation put forward by the Claimant (the suggestion that the context of his and the LTTE’s actions, involving a civil war with atrocities, war crimes and breaches of human rights committed by both sides, should be taken into account as mitigation), and rejected it - as she was fully entitled to do, applying the relevant rationality standard - in her decision letter of 13 March 2009.
In the light of her examination of the individual circumstances of the Claimant’s relationship with the LTTE, the Secretary of State was rationally entitled to conclude that the period and nature of the support provided by him for the LTTE was such as to give rise to serious doubt about his good character (in particular, about his respect for the values of British society) for the purposes of the 1981 Act.
Ground (ii): assessment of current good character
In my judgment, this ground of challenge falls to be rejected. An assessment of someone’s good character for the purposes of the 1981 Act will inevitably have to take into account things said and done by them in the past. It is true that the relevant actions of the Claimant in relation to the LTTE took place a number of years ago, before the Claimant arrived in the United Kingdom, but the Secretary of State was entitled to assess that the nature and period of support provided by the Claimant to the LTTE was so extensive as to continue to raise serious doubts about his good character for the purposes of the 1981 Act. It did not appear that the Claimant had taken any steps since arriving in the United Kingdom to disavow his earlier commitment to supporting the LTTE. The Secretary of State was rationally entitled to focus on what he had done to support the LTTE over a very long period of time in Sri Lanka.
In support of this Ground of challenge, Mr Jafferji sought to draw an analogy with the approach to “spent” offences under the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) under the Secretary of State’s policy. I do not consider that this analogy is sound. The 1974 Act sets out a clear and precise statutory code which defines when previous convictions may be disregarded for various purposes. The Secretary of State could rationally import that code into her policy guidance on “good character” for naturalisation purposes without undermining her approach to the different topic of involvement in war crimes etc. In relation to that topic, the range of factual situations and relevant circumstances covered by the policy contained in the War Crimes Guidance is very wide; the subject-matter is particularly sensitive and potentially serious; and there is no clear and readily accessible set of criteria equivalent to those set out in the 1974 Act in relation to previous convictions which could supply a sensible framework to set out when involvement in war crimes in the past (even in the extended sense of providing support to an organisation like the LTTE) should be ignored.
Nor, in my view, does reference to paragraph 4.3 of the War Crimes Guidance (para. [34] above) assist the Claimant. That paragraph is concerned with a very specific situation, in which later events (acquittal of an applicant on a war crimes charge) may cast doubt on the true extent of his involvement in war crimes in the past which other material had appeared to indicate. There is nothing of that kind in the Claimant’s case.
Mr Jafferji also submitted that the stance that the Secretary of State adopted in relation to the Claimant’s past activities in Sri Lanka means that the Claimant could never satisfy the “good character” requirement under the 1981 Act, and that this would be inconsistent with the wording of the 1981 Act and the Secretary of State’s policy. I do not accept this. It is possible that the Claimant may be able to satisfy the Secretary of State that he is of “good character” in the requisite sense by his activities over time in the United Kingdom (that was a feature of the behaviour of the applicants in ex p. Al Fayed which was clearly taken carefully into account). In any event, there is nothing in the Act or the policy which excludes the possibility that some persons may, by reason of the seriousness of their conduct in the past, always give grounds for serious doubt about their “good character”, as that concept is employed in the naturalisation context.
Ground (iii): No misrepresentation in the naturalisation application form
The Claimant contends that the second basis for refusal is erroneous, because it could not properly be considered that he had made any misrepresentation in the Form AN which he completed, nor could it properly be said that he was guilty of an attempt at deception in the naturalisation process, as required by the Secretary of State’s policy. In assessing this challenge, I consider that the very wide notion of involvement in war crimes etc which the Secretary of State employs, as explained above, is a relevant matter. The War Crimes Guidance, in which that notion is set out, is not referred to in Guide AN or the AN Form which applicants for naturalisation have to read. Guide AN encourages applicants to think that the process of application is a simple and straightforward one (para. [11] above), and does not suggest that there is further relevant policy guidance which applicants should seek out. They are not, therefore, put on notice that the Secretary of State takes such an expansive view of involvement in war crimes as is set out in paragraph 2.1 of the War Crimes Guidance. That affects the proper interpretation of the answers an applicant gives on Form AN and whether he can be said to have attempted to deceive the Secretary of State by his answers.
In my view, read objectively and as it would be reasonable to expect an applicant to read it, question 3.9 on Form AN (para. [15] above) refers to the personal involvement of an applicant in war crimes, crimes against humanity and genocide, and does not cover the extended notion of support for groups such as the LTTE which is used in the War Crimes Guidance. On the Claimant’s account of his involvement with the LTTE, on which the Secretary of State relied, he was entitled to answer “No” to this question, as he did. Also, it could not reasonably be said that in doing so he had attempted to deceive the Secretary of State.
Similar points may be made in relation to questions 3.11 and 3.12. As regards question 3.12, since the Claimant was not on notice that the Secretary of State took the wide view set out in the War Crimes Guidance that support for a group such as the LTTE would raise doubts as to the good character of an applicant (and since the Secretary of State has granted naturalisation to Tamils from Sri Lanka who may have supported the LTTE and has not adopted a general approach of treating the provision of any level of support for the LTTE as indicating that an applicant is not of good character), he could properly think that – apart from the indication given by the terms of question 3.10 in relation to terrorist activities (as distinct from war crimes) - his activities in relation to support for the LTTE were not such as might indicate that he might not be considered to be a person of good character.
The position in relation to question 3.10 (para. [15] above) is different, however. As regards the first part of the question, the Claimant could properly think that he himself had never been involved in, supported or encouraged terrorist activities. But as regards the second part of the question, he knew he had been a member of and had given support to the LTTE. In relation to that, although he himself may have been ready to acquit the LTTE of being concerned in terrorism (and shortly before the hearing he put in a witness statement to say that he did not regard it as a terrorist organisation), Guide AN makes it clear that even if he does not regard something as an act of terrorism but knows that others do or might do (para. [12] above), he should mention it. It is not plausible that anyone could regard, say, the assassination of Rajiv Gandhi in 1991 as anything other than an act of terrorism, at least in the eyes of a significant number of people. The Claimant admits in his latest witness statement that he was aware of the assassination (though he does not admit that he regarded it as an act of terrorism); he does not address the question whether he appreciated that some people would regard it as an act of terrorism.
Also, by the time the Claimant completed the AN Form the LTTE had been identified as a proscribed organisation in the United Kingdom, as an organisation concerned in terrorism. The Claimant has never suggested (whether in the letters from TWAN sent on his behalf or in his witness statement prepared for the hearing) that he was unaware of its proscription at the time he completed the AN Form. In the letter dated 29 January 2009 from TWAN on his behalf, the proscription of the LTTE in 2006 was referred to, in order to make the point that it post-dated the Claimant’s time in Sri Lanka. So, again, by the time he completed the AN Form it seems that the Claimant was in a position to appreciate that the LTTE was regarded by the Secretary of State as “an organisation which has been concerned in terrorism” and that a truthful answer to question 3.10 would have required him to tick the “Yes” box and then give further details in the space provided on the form for that purpose.
The Claimant protests that his failure to answer question 3.10 properly and accurately was by reason of an honest mistake. He points to the fact that (as indicated in particular on the AN Form) he was aware that the Secretary of State would be likely to have regard to the materials generated in relation to his earlier claim for asylum, which would reveal his membership of the LTTE and the level of his involvement with that organisation. Mr Jafferji submits, and Ms Lambert accepts, that an applicant’s good character for the purposes of the 1981 Act would only be brought into question in relation to inaccurate statements on the application form if those misstatements were deliberately untruthful. I consider the question whether the Secretary of State was entitled to conclude that the Claimant had deliberately sought to deceive her in the context of discussion of Ground (iv), below.
Ground (iv) – fairness in taking the decision
The Claimant complains in relation to both the first basis and the second basis of refusal that he was not given a fair opportunity to address concerns which the Secretary of State had about his character. He submits that the Secretary of State should have sent a letter setting out her concerns and giving him an opportunity to address them in detail before taking a decision. He also submits that he should have been interviewed to give his account of his involvement with the LTTE and to defend himself against the charge that he had sought to deceive the Secretary of State by not mentioning his membership of and support for the LTTE in his application for naturalisation.
The relevant obligation of fairness in relation to consideration of an application for naturalisation under section 6(1) of the 1981 Act was identified by Lord Woolf MR in the Court of Appeal in R v Secretary of State for the Home Department, ex p. Fayed [1998] 1 WLR 763, at 773F-774A, in this way:
“Except where non-compliance with a formal requirement, other than that of good character, is being relied on, unless the applicant knows the areas of concern which could result in the application being refused in many cases, and especially this case, it will be impossible for him to make out his case. The result could be grossly unfair. The decision-maker may rely on matters as to which the applicant would have been able to persuade him to take a different view …. This is therefore a case where … the courts would intervene to achieve fairness for the Fayeds by requiring the minister to identify the areas which were causing them such difficulty in reaching the decision….”
(see also Lord Woolf’s conclusion at pp. 777G-778B, quashing the decision in that case because the Secretary of State had not given the applicants’ fair notice of and a fair opportunity to address the areas of concern which led to their applications for naturalisation being refused).
In the same case, Phillips LJ reviewed relevant authorities (AG v Ryan [1980] AC 718, 726-727; R v Gaming Board for Great Britain, ex p. Benaim and Khaida [1970] 2 QB 417, 430-431; R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, 560) and concluded “… an applicant under section 6 would be entitled to be informed of the nature of matters adverse to his application so as to be afforded a reasonable opportunity to deal with them” (p. 787D-E, and see p. 787G-H). He pointed out that “The nature and degree of disclosure required depends upon the particular circumstances” (p. 786H). He agreed with Lord Woolf that the decision should be quashed because the requirements of fairness had not been met in the circumstances of that case.
The result was that the Secretary of State re-took the decision, after first sending a letter setting out the areas of concern he had regarding the Fayeds’ good character and giving them an opportunity to comment by way of written representations. On the basis of their comments he was persuaded to grant naturalisation to one of the applicants, but he decided to refuse the application of Mohammed Al Fayed. Mohammed Al Fayed was not interviewed in relation to the concerns that the Secretary of State had regarding his good character. The challenge to the Secretary of State’s decision to reject his application failed: R v Secretary of State for the Home Department, ex p. Al Fayed [2001] Imm AR 134.
In relation to this part of the case, Mr Jafferji referred in particular to obiter observations in the judgment of Blake J at first instance in MH, above, at [41]-[42], where he said this:
“41. … In general terms with the abolition of citizenship by registration for adults, no claimant has a right to British citizenship but only a right to have an application fairly considered under the statutory scheme. The [British Nationality Act] makes it clear that the defendant must be satisfied that the applicant is of good character. The only person who can satisfy her is the applicant. A failure to do so after fair opportunity has been given to disabuse the [Secretary of State] of any provisional adverse views can result in a legitimate refusal of the claim. It is therefore not for the defendant to prove the existence of the disqualifying characteristic.
42. Further, I am of the opinion that the principle of common law fairness to be derived from the cases of Attorney-General v Ryan [1980] AC 718 and Al Fayed would be satisfied where a gist of the issues of concern would enable the claimant to make sensible submissions before an adverse decision is reached. Full disclosure of underlying documents or statements is unlikely to be either necessary or practical. The essence of the requirements of fairness in this context is an effective opportunity to disabuse the decision maker of some decisive adverse consideration. Even these requirements are subject to the over-riding interests of national security.”
On appeal, the Court of Appeal in its judgment in AHK passed no comment on these observations. In my view, it is clear that Blake J was simply echoing what had been decided in the first Fayed case. He was not considering in any detail what fairness might require the Secretary of State to do in particular cases. The case in MH/AHK was not directly concerned with these matters.
In considering an application for naturalisation, it is established by the first Fayed case that the Secretary of State is subject to an obligation to treat the applicant fairly, which requires her to afford him a reasonable opportunity to deal with matters adverse to his application. In my view, that obligation may sometimes be fulfilled by giving an applicant fair warning at the time he makes the application (e.g. by what is said in Form AN or Guide AN) of general matters which the Secretary of State will be likely to treat as adverse to the applicant, so that the applicant is by that means afforded a reasonable opportunity to deal with any such matters adverse to his application when he makes the application. In other circumstances, where the indication available in the materials available to an applicant when he makes his application does not give him fair notice of matters which may be treated as adverse to his application, and hence does not give him a reasonable opportunity to deal with such matters, fairness will require that the Secretary of State gives more specific notice of her concerns regarding his good character after she receives the application, by means of a letter warning the applicant about them, so that he can seek to deal with them by means of written representations (as eventually happened in the Fayed case). Where there is doubt about whether the obligation of fairness has been fulfilled by means of the indications given by the Secretary of State at the time an application is made, she may be well-advised to follow the procedure adopted for the second Fayed case so as to avoid the need for argument about the issue in judicial review proceedings.
In my judgment, on the basis of the formulation of the obligation in the first Fayed case and by Blake J in MH, the obligation of fairness will not require the Secretary of State to interview an applicant in relation to concerns she has about his good character, at any rate other than in exceptional cases. This view is also supported by what happened in the second Fayed case, in which serious concerns about the probity and good character of Mohammed Al Fayed (see paras. [30]-[33] and [45]) were dealt with on the basis of affording him an opportunity to make written representations about them, without it being suggested by the Court that the Secretary of State was under an obligation to interview him about those concerns.
I turn, then, to the facts of the present case. So far as concerns the first basis of refusal (involvement in war crimes etc), the Claimant was given a certain amount of warning by the terms of Form AN and Guide AN about the sort of matters which would be of concern to the Secretary of State in respect of an applicant’s good character in relation to any application for naturalisation under section 6(1). However, I do not consider that the Claimant was given fair warning about the extended notion of involvement in war crimes etc that the Secretary of State was proposing to employ. The Claimant therefore did not have a reasonable opportunity to make representations in his application to seek to deal with the concerns the Secretary of State might have regarding his involvement in war crimes by reason of his support for the LTTE. This would have been sufficient to justify quashing the first basis of refusal in the Secretary of State’s letter of 15 January 2009.
However, the Secretary of State also relied on the circumstances in which her second decision letter came to be issued. Ms Lambert submitted that that decision was taken with the benefit of representations on the Claimant’s behalf from TWAN in its letters dated 29 January 2009 and 24/25 February 2009, which had been prepared with notice of the Secretary of State’s decision and reasons set out in her letter of 15 January 2009. The Claimant had therefore, so Ms Lambert said, had a reasonable opportunity to address the Secretary of State’s concerns before she took the decision set out in the decision letter of 13 March 2009.
I do not accept this submission. It was only in the decision letter of 13 March 2009 that the Secretary of State set out the relevant passage from paragraph 2.1 of the War Crimes Guidance (and gave the Claimant details where that Guidance could be found), which explained the wide concept of involvement in war crimes etc which she had used to determine the Claimant’s application. He had no fair opportunity in advance of receiving the second decision letter to address the Secretary of State about the application of that wide concept to the individual facts of his case. The same flaw in procedure as affected the first decision letter therefore also applied in relation to the second decision letter. Accordingly, I conclude that the Secretary of State’s decision cannot be upheld in respect of the first basis of refusal.
I also conclude that the Secretary of State’s decision cannot be upheld by reference to the second basis of refusal. Although the Claimant’s answer to question 3.10 on Form AN involved a misrepresentation, I consider that the Secretary of State could not fairly conclude that it had been deliberate without first giving the Claimant a reasonable opportunity to make representations in relation to her concerns in that regard. To find that there has been a deliberate attempt to deceive by giving a particular answer is a very strong conclusion (which may also affect future renewed applications for naturalisation), and there may be possible explanations how a mistake might have been made. There might also be scope for relevant points to be made in mitigation. I consider that where the Secretary of State considers there is material which might support a conclusion that there has been a deliberate attempt to deceive her, she should draw that material and her concerns to the attention of the applicant and give him an opportunity to make written representations to address her about them.
That had not happened by the time of the first decision letter of 15 January 2009. Nor, in my view, had the Claimant been given a sufficient opportunity to address those concerns before the second decision letter of 13 March 2009 was issued. The first decision letter did not distinctly identify the Claimant’s answer to question 3.10 as an answer which the Secretary of State was concerned may have been deliberately false (see para. [19] above). The Claimant was therefore not given a reasonable opportunity to deal with that concern.
Conclusion
For the reasons given above, the Secretary of State’s decision should be quashed. She should afford the Claimant an opportunity to address her concerns regarding his good character by means of written representations.