Thamby, R (on the application of) v Secretary of State for the Home Department

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:

Paragraph 1(1) of Schedule 1 to the 1981 Act provides in relevant part as follows:

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 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:

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:

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:

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:

commits or participates in acts of terrorism,

prepares for terrorism,

promotes or encourages terrorism (including the unlawful glorification of terrorism), or

Section 6 of Guide AN deals with the declaration to be made by an applicant for naturalisation. It included the following statement:

applicants do not tell us about offences and convictions, or

the residence requirements have not been satisfied, or

Guide AN provides a glossary of terms. “Good character” is defined as follows:

Section 3 of Form AN form dealt with the good character requirement. It stated:

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 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 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:

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:

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.

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:

Paragraph 2.1(b) and (e) of Annex D provides:

Paragraph 2.3 of Annex D provides:

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:

Section 5 of Annex D, entitled “War crimes, crimes against humanity and genocide”, provides as follows:

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:

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

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:

Paragraph 4.2 of the War Crimes Guidance provides:

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:

Paragraph 8 of the War Crimes Guidance is headed “Information relevant to war crimes or crimes against humanity”. It provides:

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. …

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.

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.

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.

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.

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:

Part (D) of paragraph 10 of the War Crimes Guidance is headed “Insufficient or vague information about applicant’s activities”. It provides:

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.

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.

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.

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.

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:

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:

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.

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.