Mohamed, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 4871 (Admin)

Case No CO/1315/2013[2013] EWHC 4871 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 28 August 2013
Strand
London WC2A 2LL
B e f o r e:
CHARLES GEORGE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF HAYATH MOHAMED SANOON MOHAMEDClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr P Saini (instructed by Nag Fresh Law Solicitors) appeared for ClaimantMs K Apps (instructed by the Government Legal Department) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: The claimant in this matter, Mr Mohammed, is a Sri Lankan Tamil Muslim and he challenges out of time the decisions of 30 January 2012 and 29 June 2012 of the Secretary of State refusing his application for British citizenship under Section 6(1) of the British Nationality Act 1981.[2]The claimant was born in 1974 and he came to the United Kingdom in 2002 when he was aged 28 and he sought asylum. He had served in the Sri Lankan Army on the Government side from 1994 until 6 January 2002 and had risen to the rank of Captain. During that time the civil war against the Tamils, though not the Tamil group to which Mr Mohammed belonged, was raging and the claimant was involved in various military activities, including interrogation of captured insurgents. His life was also in peril from the LTTE, the insurgents themselves, because he was a Tamil, but serving with the Government. Eventually he deserted the Army and fled to this country. His application for asylum was refused on 22 February 2002 but he was finally granted asylum on 23 September 2002 by an adjudicator who allowed his appeal. The adjudicator recorded in paragraph 20 of that decision:
"He was interrogating LTTE suspects from 1996 to 1999 and he saw many ill-treated and even killed. He gave more descriptions about the order that he ordered such as ropes tied around the suspect's limbs and that they were hoisted to the ceiling."
[3]He then married in July 2010 and the couple have a child who is a British citizen. He applied for British citizenship but that was refused on 30 January 2012 and he admitted in his application that he had been involved in torturing those LTTE suspects. He then requested reconsideration and he made particular reference to the duress under which he had been at the time that he had been involved, in that he could, he said, not have done otherwise because he would have been subject to severe punishments if he had not gone along with this form of interrogation and torture.[4]On 14 June 2012 he was told that he would be receiving a substantive response. On 19 October he sent chasing letters and finally, on 8 November, his solicitors received a lengthy letter from the Secretary of State allegedly sent to his solicitors on 20 June 2012 and bearing that date. This referred to "His self admission that he was involved in the interrogation and torture of LTTE suspects." The letter went on to record:
"You assert [that is you, the solicitors assert] that he [that is Mr Mohammed] was made to perform acts which in civilian life he would not have ... there can be no defence whatsoever for the fact that he both interrogated and tortured those opposed to the LTTE."
[5]Remarks to similar effect were made on a further four occasions in the letter. The letter writer said that the claimant's good character since arrival had been taken into account and disputed the allegation by the solicitors that the whole procedure was unfair.[6]On 6 February 2013 an application for judicial review was lodged with grounds of claim, settled by Mr Parminder Saini of counsel who has appeared in this renewal application.[7]The grounds of claim were under four heads, ground 1 being refusal of nationality where the material difference required of the claimant's circumstances has not been explored. The gist of this matter is that the Secretary of State should have recognised that a person in the claimant's circumstances could never as it were eradicate the actions in which he had been involved and could never get himself into a position where he could obtain British citizenship if his involvement in these events in Sri Lanka were to be perpetually held against him.[8]The second ground was that there had been a failure to assess his good character demonstrated since arrival in the United Kingdom as a means of mitigation; and ground two had a second limb of failure to assess the mitigating circumstances, namely the duress under which the claimant had been when he was involved in these acts of torture.[9]Ground three was the failure to give reasons for discounting the good character in the United Kingdom and failure to give weight to good character in the United Kingdom.[10]Ground four was failure to have regard to the establishment of a private family life in the United Kingdom.[11]The matter came on the papers before Mr James Goudie QC who, on 18 June 2013, dismissed the application as being totally without merit. He dismissed it on two grounds. First of all that the application was out of time and there was no reason to extend. It was out of time because it was lodged on 6 February 2013, whereas the last matter complained of was the reconsideration letter of 20 June 2012. Secondly, the application was refused on the ground that there was no error in either of the Secretary of State's letters and the Secretary of State had been entitled to proceed on the basis that he was not of good character having regard to the fact that the claimant had participated in crimes against humanity.[12]On 3 July, which is slightly out of time but I don't think anything turns on that, the application was renewed and the same grounds as originally were relied upon with no attempt to deal with the particular reasons for refusal.[13]Today, on the renewal application, Mr Saini puts his case really under three heads and the headings which I am using are a simplification of his argument but I hope I will be excused for that.[14]The first head, and it is I think by far and away his most significant challenge, is his original ground one which he has further developed as a form of procedural unfairness. What he says is that the Secretary of State has a broad discretion, that he is under a duty to apply that discretion in a way which informs persons who are refused British citizenship of how they might surmount the reasons why they are being refused.[15]In particular, in the case of a person such as the claimant, who is being refused because of past participation in acts of torture and in circumstances where he admits those acts and therefore isn't in the position where he can in any forum of international law be cleared of his crimes, that person should have it explained to him what he could do in order to qualify for British citizenship.[16]His second ground of challenge is the second limb of the original ground two, namely that the Secretary of State's letters failed to pay any or any adequate attention to the fact that he had deserted from the Sri Lankan Army and disassociated himself from their activities and that was the reason why he had come to this country in the first place and been granted asylum. Instead, the Secretary of State in the letters had merely concentrated on the claimed duress of circumstances which the claimant and his solicitors had been raising and there was insufficient attention paid to the other matter.[17]The third ground is that there had been a failure properly to address the claimant's good character in this country since he had arrived and irrationality in not affording much greater weight to the years which had passed since 2002 and to the fact that he had now established a private family life. These matters altogether under ground 3 constituted an unlawfulness.[18]I am satisfied that none of the these grounds are arguable. So far as the first ground, Mr Saini readily concedes that this is a novel point which has not arisen in previous cases such as Al Fayed [1998] 1 WLR 763, or more recently in the case of Amirifard [2013] EWHC 279 (Admin). He says that as a matter of public law a person in the position of the Secretary of State is required to act fairly. I do not think that that is in issue, but the question is whether such fairness includes provision to an applicant whose application is being refused of an explanation of how that person might, not necessarily would, overcome the reason being given for refusing it. He says that it is quite insufficient that the Secretary of State, at the end of the refusal letter simply said, using a fairly I think standard phrase, that on a reconsideration, or on a reapplication, he was unlikely to obtain citizenship unless there had been a material change of circumstances. The fact being, says Mr Saini, that here there can't be a material change of circumstances. The claimant is likely to remain of good character in all respects save for the participation in the interrogation and torture.[19]It does not seem to me to be arguable that under the Act itself or under any principles of public law the Secretary of State is required to give the sort of explanation or information that Mr Saini says he is bound to provide. The Secretary of State has a very wide discretion, as is made clear by the cases of Al Fayed and Amirifard. The only challenge to such exercise of discretion are can be that he has acted irrationally, and as

Lord Justice Nourse said in Amirifard:

"This test is especially difficult to satisfy in an area where Parliament has conferred a broad discretion on the Secretary of State."
And the Court of Appeal has declared in Al Fayed:
"It is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only it is one that could reasonably be adopted in the circumstances."
[20]Here, it is not suggested that the Secretary of State has acted irrationally in refusing the application, nor could it possibly be in the light of the admitted involvement by the claimantn in these acts of torture.[21]Indeed, the factual situation here is considerably worse than it was on the facts of the recent case of Amirifard where the claimant in that case had not himself been personally or so personally involved in the acts of torture.[22]So far as the second ground of challenge that the Secretary of State did not pay adequate attention to the fact that the claimant had fled from Sri Lanka and deserted from the Army, it is difficult to see how that could act as a separate reason for allowing British citizenship. The arguments in relation to duress were fully considered, particularly in the second letter of 20 June, and it does not seem to me to be arguable that the other matter is a factor which could independently have led to a different decision.[23]So far as the third ground which is that the good character since he arrived was not taken into account and his private family life, it is quite clear from the decision letters that his good character was taken into account. It was weighed and it was held that it did not have sufficient weight to outbalance his participation in the acts of torture. There is no ground for saying that any of these matters had been left out of the count so as to make the decision challengeable, whether for failure to take into account relevant circumstances or as irrational of itself.[24]I would only add this, that I would not for my own part reject this application as being out of time, for the reason explained in the application that the letter of June 2012 was not received by the claimant's solicitors until much later and within the three-month period within which the challenge was brought. Nor would I go so far as to say that the matter is totally without merit. But permission is refused for the reasons which I have given.[25]MS APPS: I am grateful, my Lord. Two matters, if I may. Firstly, Mr Goudie, QC granted £640 by way of costs of the acknowledgment of service. If I could ask that that order --[26]THE DEPUTY JUDGE: That simply stands. That stands, you don't need any further order, that is an order of the court already.[27]MS APPS: I am grateful. The second, in light of your Lordship's careful judgment setting out the authorities I wonder if I could have permission that this judgment today could be cited were a similar issue to come up in future cases.[28]THE DEPUTY JUDGE: I don't think that this is the sort of judgment on a issue of principle which warrants making such an order.[29]MS APPS: I am grateful, thank you.[30]MR SAINI: My Lord.[31]THE DEPUTY JUDGE: I have granted leave to bring the application out of time but I have refused the application for permission.