Naturalisation

British nationality - Acquisition

R (on the application of Chockalingam Thamby) v Secretary of State for the Home Department: Queen's Bench Division, Administrative Court (London) (Mr Justice Sales): 8 July 2011

The claimant was a Sri Lankan national. He entered the United Kingdom illegally in December 2000 and claimed asylum in January 2001. 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 Liberation Tigers of Tamil Eelam (LTTE), by reason of his membership of the LTTE.

The claimant was interviewed about his asylum claim by the Home Office Immigration and Nationality Directorate. He answered a series of questions about his involvement with the LTTE. The claimant's claim for asylum was rejected by the Secretary of State in a decision letter dated 21 February 2001.

His appeal was allowed in a decision promulgated on 15 October 2001. In January 2002, the claimant was granted exceptional leave to remain. In June 2007, he was granted indefinite leave to remain. Since his arrival in the UK, the claimant had been living quietly. He had found employment and made a life.

In 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 made it clear that before completing it an applicant should read the accompanying guide (Guide AN). Section 3 of Guide AN dealt with the good character requirement.

It stated that 'You must say whether you have been involved in anything which might indicate that you are not of good character ... 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'. In January 2009, the Secretary of State issued a decision letter refusing the claimant's application for naturalisation.

In conclusion the secretary of state said that 'as a member of the military wing [of the LTTE] between 1983 and 1995, and as an active supporter between 1995 and 2001, it is considered that [the claimant] must have been aware of the crimes committed by the LTTE during this period ...The LTTE was responsible for widespread and systematic War Crimes and Crimes against Humanity whilst [the claimant] was a member, contributing to its overall aims and activities, and therefore the secretary of state is not satisfied that he is a person of 'good character' for the purposes of the British Nationality Act 1981'. 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 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, and that the LTTE had not been formally proscribed as a terrorist organisation until May 2006. By letter dated 13 March 2009, the secretary of state maintained her decision to refuse the claimant's application for naturalisation.

She concluded that the LTTE had committed international crimes of terror during the claimant's membership and that he would have had knowledge of those offences. The claimant applied for judicial review.

He contended, inter alia, that: (i) the secretary of state had 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 his activities as a member and supporter of the LTTE and had failed to consider the context in which the claimant had acted and whether there were any mitigating circumstances; (ii) the secretary of state by focusing exclusively on the claimant's activities in Sri Lanka prior to his arrival in the UK in December 2000, had failed to make a proper assessment of the claimant's character; and (iii) the secretary of state's decision to refuse the claimant's application had been taken in breach of her duty of fairness, without having given him an opportunity to address her concerns with respect to his being of good character. Consideration was given to the British Nationality Act 1981 (the 1981 Act).

The application would be allowed.

(1) The grant of British citizenship under s 6(1) of the 1981 Act was not a fundamental human right. There was no statutory definition of the requirement of 'good character' in para 1(1) of Sch 1 to the 1981 Act. It was a term capable of carrying a range of meanings, and required an exercise in evaluation to apply it.

It was open to the secretary of state, so long as she acted rationally, to adopt a high standard of good character, and one higher than other reasonable decision-makers might have adopted. To give rise to serious doubts as to an applicant's good character for the purposes of naturalisation, it was not necessary that the applicant should have been personally or directly involved in the commission of war crimes in some indirect way.

It might be sufficient that the applicant had, 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 was prepared to ally himself with it in a way which revealed 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 (see [40]-[42] of the judgment).

In the circumstances, the secretary of state's decision did not involve any failure to consider mitigating circumstances. The secretary of state's consideration of the level of the claimant's involvement in the LTTE implicitly covered one form of possible mitigation. In light of her examination of the individual circumstances of the claimant's relationship with the LTTE, the secretary of state had rationally been 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 for the purposes of the 1981 Act (see [49]-[50] of the judgment).

R v Secretary of State for the Home Department, ex p Al-Fayed [2000] All ER (D) 1056 considered; Sainsbury's Supermarkets Ltd v First Secretary of State [2005] All ER (D) 75 (May) considered; Accenture Services Ltd v Revenue and Customs Commissioners; Barclays Bank plc v Revenue and Customs Commissioners [2009] All ER (D) 223 (Apr) considered; AHK v Secretary of State for the Home Department; FM v Secretary of State for the Home Department [2009] All ER (D) 35 (Apr) considered.

(2) An assessment of someone's good character for the purposes of the 1981 Act would inevitably have to take into account things said and done by them in the past (see [51] of the judgment)

Whilst the relevant actions of the claimant in relation to the LTTE took place a number of years ago, before the claimant had arrived in the UK, the secretary of state had been 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 UK to disavow his earlier commitment to supporting the LTTE.

The secretary of state had been rationally entitled to focus on what he had done to support the LTTE over a very long period of time in Sri Lanka (see [51] of the judgment).

(3) In considering an application for naturalisation, the secretary of state was subject to an obligation to treat an applicant fairly, which required her to afford him a reasonable opportunity to deal with matters adverse to his application.

That obligation might sometimes be fulfilled by giving an applicant fair warning, at the time he made the application, of general matters which the secretary of state would be likely to treat as adverse to the applicant, so that the applicant was by that means afforded a reasonable opportunity to deal with any such matters adverse to his application when he made the application.

In other circumstances, where the indication available in the materials available to an applicant when he made his application did not give him fair notice of matters that might be treated as adverse to his application, and hence did not give him a reasonable opportunity to deal with such matters, fairness would require that the secretary of state gave more specific notice of her concerns regarding his good character after she received the application, by means of a letter warning the applicant about them, so that he could seek to deal with them by means of written representations.

Where there was doubt about whether the obligation of fairness had been fulfilled by means of the indications given by the secretary of state at the time an application was made, she might be well-advised to follow the procedure adopted in R v Secretary of State for the Home Department, ex p Al Fayed ([2001] Imm AR 134) so as to avoid the need for argument about the issue in judicial review proceedings (see [67] of the judgment).

In the instant case, the claimant had been 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 s 6(1) of the 1981 Act.

However, the claimant had not been given fair warning about the extended notion of involvement in war crimes 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 had regarding his involvement in war crimes by reason of his support for the LTTE. That 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. The same flaw in procedure as affected the first decision letter also applied in relation to the second decision letter (see [68]-[73] of the judgment).

Accordingly, the secretary of state's decision would be quashed (see [74] of the judgment).

R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 All ER 528 considered; A-G v Ryan [1980] 2 WLR 143 considered; R v Secretary of State for the Home Department, ex p Doody [1993] 3 All ER 92 considered; R v Secretary of State for the Home Department, ex p Fayed [1997] 1 All ER 228 considered; R v Secretary of State for the Home Department, ex p Al Fayed [2000] All ER (D) 1056 considered.

Zainul Jafferji (instructed by the Tamil Welfare Association) for the claimant. Suzanne Lambert (instructed by the Treasury Solicitor) for the Secretary of State.