Thayalan, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 746 (Admin)

Case No CO/2865/2014[2015] EWHC 746 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2015
Before
THE HONOURABLE MRS JUSTICE PATTERSON DBE
Between
The QUEEN on the application of THAYALANClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Richard Singer (instructed by Sriharans Solicitors) for ClaimantColin Thomann (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 17 March 2015
Judgment

Introduction

[1]This is a claim for judicial review of a decision by the defendant of 22 August 2013 when the defendant refused the claimant’s application for naturalisation and of a decision by the defendant of 24 March 2014 when the defendant refused the application by the claimant for reconsideration of that application.[2]Permission was granted by Collins J on 15 October 2014. In so doing he found that ground five was unarguable.

Background

[3]The claimant was born in Sri Lanka on 3 May 1977. He arrived in the United Kingdom (UK) on 7 November 1998. He claimed asylum on 12 November 1998.[4]At his asylum interview the claimant said that he feared the government authorities in Sri Lanka and the LTTE (the Liberation Tigers of Tamil Eelam). In Sri Lanka he had been in the LTTE and was a political leader for the Batticaloa region. He recruited people for the LTTE and confiscated people’s houses. He had been forced to join the LTTE at the age of 16. After joining he was “put on the political side” because he was not very tall. He was sent on a mission to Colombo where he was arrested and mistreated by government authorities. The LTTE gave every member a cyanide capsule that they were to take if arrested. The claimant did not do so. That would be seen as a very great crime within the LTTE who would come after him. He was released by the police after his uncle had paid a bribe and he agreed to the condition that he report to a police station once a week.[5]The defendant refused his asylum claim on 13 September 2005.[6]On 22 September 2005 a further decision was made to remove the claimant as an illegal entrant from the UK by way of directions under paragraphs 8 to 10 of schedule 2 of the Immigration Act 1971.[7]The claimant appealed to the Asylum and Immigration Tribunal (AIT). In a determination promulgated on 14 December 2005 the AIT allowed the claimant’s appeal under asylum and human rights grounds.[8]At his appeal the claimant adopted his asylum interview. He said that he was selected as part of a suicide squad and was arrested whilst on a mission for the LTTE in Colombo. In his oral evidence he said that he was a commander for the LTTE and that he had recruited over 700 members for the Karuna group (part of the LTTE) over a seven month period. He said he was arrested by the government authorities for spying. He said that after he was released by the government he would have been killed by the LTTE for not killing himself with the cyanide tablet that they had provided. In his oral evidence the claimant said that he had scars on his elbows, back, legs, groin and ear. The scars to his elbows were sustained during LTTE training. The scars to his back were sustained when he was pricked whilst suspended from a ceiling when undergoing torture. The scars to his lower leg and groin were the result of police burning tyres and melting the rubber on his lower leg and groin. The scar to his ear was sustained in combat for the LTTE.[9]The AIT made various findings of fact including that the claimant went on a mission to Colombo for the LTTE in May 1997. He was arrested in November 1997 and detained and tortured. The scars from his torture corroborated the claimant’s account of his detention. He was released in June 1998 on payment of a bribe with a signing-on condition at Kaliska station. He stayed at his uncle’s house between his release and departure. He left Sri Lanka on a false passport in November 1998.[10]The AIT found the claimant to be a credible witness. The Tribunal Judge allowed his appeal in the decision promulgated on 14 December.[11]On 23 January 2006 the defendant granted the claimant leave to remain in the UK as a refugee until 23 January 2011.[12]In an application received by the defendant on 18 April 2012 the claimant applied for naturalisation as a British citizen. Under the good character requirement the claimant stated:
“I was forced to join the LTTE at the age of 16 against my will but did not take part in military-style operations. But I was given military training.”
[13]In a decision dated 22 August 2013 the defendant refused the claimant’s application for citizenship on the basis that she was not satisfied that the claimant was of good character for the purposes of paragraph 1(1)(b) of schedule 1 to the British Nationality Act 1981.[14]That decision concluded:
“As a result of your long term and significant support to the LTTE and possible involvement in the commission of crimes, plus your close association with Colonel Karuna and your important role as a commander and political leader the Secretary of State is not satisfied that you are a person of ‘good character’ for the purposes of the British Nationality Act 1981. I am therefore refusing your application for nationality on the grounds of character.”
[15]The reasoning that preceded that conclusion included the following: i) The LTTE was one of the world’s most feared insurgent groups that gained a reputation for ruthless brutality against its enemies; ii) All sides in the conflict in Sri Lanka including the LTTE committed war crimes and crimes against humanity; iii) The LTTE identified those Tamils opposed to them as traitors, and opponents offered murder to enforce obedience with the Tamil population; iv) The LTTE’s frequently used policy of the forcible recruitment of military cadres can be classed as an attack on the Somilian population. The LTTE snatched children or forced families to hand children over through violence, in order to recruit them as military cadres; v) Around 35 per cent of the LTTE’s war budget was spent on developing its intelligence capability. Intelligence agents were used by the LTTE to guide suicide bombers to their targets, and were linked to the recruitment of child soldiers. The LTTE intelligence wing was responsible for organising the assassination of Indian Prime Minister Rajiv Gandhi in 1991; vi) Colonel Karuna was a key player in the LTTE hierarchy. He was linked to a large number and wide range of war crimes and crimes against humanity during his military career; vii) The claimant had claimed to be a “political leader” and “recruitment commander” for the Batticaloa area and had recruited over 700 members in a seven month period. He had confiscated homes for the LTTE; viii) The claimant’s involvement in the confiscation of houses casted doubt upon his character; ix) The nature of the claimant’s specific roles and the success with which he carried them out, would have involved him in or at least made him directly aware of child recruitment and the associated human rights abuses suffered by the recruits and their families; x) The claimant should have been aware that intelligence that he gathered on behalf of the LTTE may possibly have been used in assassinations and/or terrorist bombings and that cast doubt on his character; xi) The claimant had said in his nationality application that he never took part in combat whereas at his AIT appeal he claimed that he had. The claimant did not mention his association with Colonel Karuna in his asylum application but raised it only at his tribunal appeal. That cast doubt about the claimant’s character; xii) The AIT determination described the claimant as distinguishable from ordinary LTTE supporters.[16]In a letter dated 28 October 2013 the claimant’s legal representatives made an application for reconsideration of the claimant’s nationality application. That application included a witness statement from the claimant in which the claimant said that he had joined the LTTE in 1993 at the age of 16 and was forced to undergo weapons training. He was a member of the LTTE from 1993 to 1997. The LTTE was banned in the UK in 2001 long after he had entered the country. He was an associate of Colonel Karuna, but not a close one.[17]The claimant had been of good character since entering the UK. He had worked since 1999 and paid his taxes. He had no criminal convictions in the UK. He had been a house owner since 2002. He should not be punished as not being a person of good character merely because he was forced to join the LTTE as a child during a time when an unusual set of circumstances prevailed.[18]On 21 March 2014 the defendant maintained her earlier decision of 22 August 2013. The defendant maintained that there was nothing in the letter from the claimant’s solicitors or in the claimant’s witness statement that materially altered the position from when his application had been refused the previous August.[19]A pre-action protocol letter was sent on 4 June 2014. The defendant failed to respond to that letter.[20]On 20 June 2014 the claimant issued judicial review proceedings.

Legal Framework

[21]Section 6(1) of the British Nationality Act 1981 (BNA) provides:
“If, on an 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.”
[22]Paragraph 1(1) of schedule 1 to the BNA provides:
“Subject to paragraph 2, 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…”
[23]The “good character” requirement in paragraph 1(1)(b) of schedule 1 to the BNA has been considered by the Court of Appeal in Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 1586 and R (DA (Iran)) v Secretary of State for the Home Department [2014] EWCA Civ 654. Paragraphs 18 and 19 of the judgment in SK (Sri Lanka) read:
“18. There is no definition of good character in the British Nationality Act 1981. However, the Secretary of State has issued policy guidance to decision makers, entitled Nationality Instructions, on which the respondent relied before the judge. Chapter 18 is headed "Naturalisation at Discretion: Section 6 British Nationality Act 1981". Paragraph 18.1.3 is as follows: "Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them." The underlining is in the original. Paragraph 18.1.7 states: "In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure, before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the Annexes to this Chapter." 19. The guidance on the good character requirement is in Annex D. Paragraph 5 is headed "War Crimes, crimes against humanity and genocide", and states: "5.1. 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. For further guidance on how to deal with applications where an applicant has declared involvement in these activities, see 'war crimes, crimes against humanity and genocide' in volume 2 section 1 - W."” "Naturalisation is at the discretion of the Home Secretary. Under s. 6 of the British Nationality Act 1981, he may grant a certificate of naturalisation to a person of full age and capacity if he is satisfied that person meets the requirements set out in Schedule 1 to the Act. He can refuse to grant a certificate to a person who meets these requirements, but he cannot grant a certificate to a person who does not meet them." "In considering the exercise of discretion it is important to look at the case as a whole. We need to be sure, before we agree to waive a requirement, that applicants are of good character and have genuinely thrown in their lot with this country. The points which need to be considered are set out in the Annexes to this Chapter." "5.1. 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. For further guidance on how to deal with applications where an applicant has declared involvement in these activities, see 'war crimes, crimes against humanity and genocide' in volume 2 section 1 - W."”
[24]The case of SK (Sri Lanka) considered the issue of whether the Secretary of State was precluded from relying on the claimant’s conduct in Sri Lanka when his application for naturalisation was being considered. In particular, the decision considered the relationship between naturalisation and asylum applications. At [29] the Court said:
“Naturalisation and asylum are different things, involving the conferment of different rights and the imposition of different obligations on the applicant, and different rights and obligations on the part of the host state or country of nationality. The grant of asylum does not involve any obligation to grant naturalisation.”
[25]The judgment continued: “30. Furthermore, the questions that arise for decision in the two contexts are different, although similar. In relation to asylum, it is whether "there are serious reasons for considering" that the respondent has committed "a crime against peace, a war crime" and so on. In JS v Secretary of State for the Home Department [2011] AC 184 [2010] UKSC 15, a case which, like the present, concerned a former member of the LTTE, Lord Brown JSC said, at paragraph 38: "Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose." The test is objective, and the onus of establishing the serious reasons is on the Secretary of State. The "reasons" must point to personal involvement in the relevant criminal activity, although this may take the form of financing or otherwise aiding with the requisite intent or knowledge: see Lord Brown in JS at paragraphs 33 to 39. 31. In relation to naturalisation, on the other hand, the test is whether the Secretary of State is satisfied that the applicant is of good character. It is for the applicant to so satisfy the Secretary of State. Furthermore, while the Secretary of State must exercise her powers reasonably, essentially the test for disqualification from citizenship is subjective. If the Secretary of State is not satisfied that an applicant is of good character, and has good reason not to be satisfied, she is bound to refuse naturalisation. For these reasons too a decision in one context is not binding in the other. … "Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose."[26]In DA (Iran) the applicant (who had been granted asylum) was refused naturalisation on the basis of paragraph 1(1)(b) BNA. He stated that he had been a member of the Iranian jail organisation between 1998 and 2001. His role involved guarding prisoners held in inhumane conditions, taking prisoners to be executed and removing bodies after execution. The applicant contended that his service had been compulsory, that he did not actively participate in human rights abuses, that he suffered mental illness in consequence of his exposure to those abuses and that he tried to dissociate himself from them on two separate occasions for which he was punished. The Secretary of State rejected the claims finding that the applicant had undergone three years service before he went absent without leave and that his final escape was not an attempt to disassociate himself from his former conduct but to evade the possibility of serious harm or death.[27]The judgment continued at [19]:
“In my judgment, neither the Secretary of State nor Lang J made any error of law. The onus was upon the appellant to establish his good character for the purpose of section 6(1) of and schedule 1 to the 1981 Act. I accept that it would be unreasonable to demand of the applicant a "heroic" standard of conduct (compare Sivakumar v Canada (Minister of Employment and Immigration)(A-1043-91, 4 November 1993, Canadian Court of Appeals, and Ramirez v Canada (Minister of Employment and Immigration)[1992] 2 FC 306 (McGuigan J)). However, it was for the appellant to place before the Secretary of State all the material on which he relied to establish his good character. The appellant provided no personal explanation to the Secretary of State at any stage as to why his first act of disassociation from his military service within the prison estate took place three years after his conscription. I recognise that the appellant was a citizen of a country whose government did not brook opposition and that he must have known there were likely to be serious consequences for disobedience. However, the appellant provided no evidence about the training he was given as to the nature of and his role in the prison regime and the duties that would be expected of him. He made no attempt to disassociate himself from the duties he was performing until a year after his training had ceased and only then because he was sickened and depressed by his experience. When the appellant's own life was at stake he did make a bid to escape and his attempt was successful. It may have been a hard decision to express serious doubt about the appellant's opposition to the regime for which he had been labouring but, on the evidence submitted, such a decision by the Secretary of State cannot be described as irrational or unreasonable.”
[28]More recently in R (Amiri) v Secretary of State for the Home Department [2014] EWHC 4418 (Admin) Jay J considered the guidance in volume 2 of the Nationality Instructions on war crimes, crimes against humanity and genocide providing that “naturalisation would normally be refused if ‘serious doubts’ were cast on the applicant’s character.” That included not only “where an applicant was directly involved in crimes against humanity but where his actions have contributed towards…crimes against humanities, such as supplying help which the supplier knows is likely to contribute towards the committing of crimes against humanity.” He said at [45]:
“The onus was on the Claimant to satisfy the Defendant of his good character. It is plain and obvious that in this sort of case applicants will not readily admit to having perpetrated crimes against humanity, and will tend to downplay the nature and extent of their activities and involvement. Accordingly, the Defendant is quite entitled to have promulgated guidance which is to the effect that if the available evidence casts "serious doubts" as to an applicant's good character, then the application for a naturalisation certificate should normally be refused. In my judgment, it is also the position that the Defendant is entitled to draw commonsense inferences from all the available material, including the applicant's own representations, provided that they are reasonable.”
[29]The claimant’s case is that the defendant’s decisions of both 22 August 2013 and 21 March 2014 were unlawful and/or unreasonable and/or failed to adequately consider the evidence and submissions made. As such the claimant contends that the defendant should not have refused his nationality application on character grounds and contends instead that he should be granted British nationality status.

Ground One

[30]Ground one asserts that the decisions were unlawful because: i) The defendant failed to apply the correct evidential test; and ii) The defendant failed to consider her own nationality guidance.[31]It is submitted that the defendant’s decision was based upon speculation rather than proved facts. That was not sufficient to warrant denial of citizenship on the grounds of character. The defendant’s own guidance is that the test to be applied is on the balance of probabilities.[32]It is the claimant’s case that by referring to possibilities and speculation the defendant failed to judge the claimant’s claim to be of good character to the proper standard.[33]Additionally, if there was evidence to suggest that a person applying for citizenship was involved or associated with war crimes, crimes against humanity or genocide (which is what the decision maker appeared to assert in this case) the decision maker was mandated to refer the case to the Deprivation Screening Team (DST).[34]The defendant contends that the central premise of the claimant’s case is erroneous. That is because it is for the claimant to satisfy the defendant that he is of good character. The question is whether the defendant has good reason not to be so satisfied.[35]Second, as shown in SK (Sri Lanka) and DA (Iran) the defendant could lawfully conclude that an applicant has failed to establish that he or she is of good character even if there is no suggestion that the applicant had personally committed acts that were criminal. It may be sufficient if the applicant was actively involved in an organisation that carried out such crimes.[36]In SK (Sri Lanka) the Court of Appeal said at [39] that “The conduct of the respondent as a member of the LTTE to which the Secretary of State referred in her decision letter constituted sufficient reason for her not to be satisfied that he was of good character.” The decision letter quoted in that case referred to the fact that it was membership on the part of the applicant of the LTTE, an organisation which was responsible for wide spread and systematic war crimes against humanity whilst he was a member and, in particular, his involvement in battles during which war crimes took place which meant the Secretary of State was not satisfied that the applicant was a person of good character for the purposes of the BNA. There was no suggestion in that decision letter that the applicant had committed crimes rather, it was because he was a member of an organisation that committed crimes and particularly because the applicant there had been involved in battles in which war crimes took place.[37]Further, the defendant was lawfully entitled not to be satisfied of the claimant’s good character in view of the nature of the LTTE organisation of which the claimant was a member and the nature of his activities within the LTTE. As such the instant case was not materially different from SK (Sri Lanka).[38]That conclusion was not inconsistent with Annex D of chapter 18 of the defendant’s Nationality Instructions. Section 1.2 of Annex D does not state that the defendant must be satisfied on a balance of probabilities that the applicant has committed a crime before refusing naturalisation. It states that:
“The Secretary of State must be satisfied that an applicant is of good character on the balance of probabilities before granting naturalisation. If an applicant plays an active role in an organisation that the applicant knows is committing crimes the defendant may be entitled to conclude that she is not satisfied on a balance of probabilities that the applicant is of good character even if there is no suggestion that the applicant personally committed any of those crimes.”
[39]There was no unfair speculation as to the activities on the part of the claimant. The claimant himself had made admissions in his asylum interview which formed the basis of the defendant’s decision.[40]The defendant confirmed that the case was looked at by the DST who had referred the case to the Research and Information Team.

Discussion and Conclusions

[41]In my judgment, the defendant was well aware of, and applied correctly, the relevant legal tests. She was aware that, in terms of evidence, the burden was upon the claimant to satisfy her on the balance of probabilities that the claimant was of good character and in her decision letters she showed that she was aware of her own nationality guidance.[42]The reasons for that view are as follows: i) the defendant can conclude that she is not satisfied that a claimant is of good character even when he has not personally committed acts which are criminal. Membership of an organisation that committed crimes and a claimant’s role within that organisation can be enough. ii) Guidance in Annex D of chapter 18 of the defendant’s Nationality Instructions states that “The Secretary of State must be satisfied that an applicant is of good character before granting naturalisation.” As there was evidence that the applicant had played an active role within the LTTE which he would have been aware were committing crimes the defendant applying her own guidance would be entitled to conclude that she was not satisfied on the balance of probabilities that the claimant was of good character. There is nothing to show that she misapplied her guidance. iii) In the initial decision letter of 22 August 2013 the defendant set out the web link to guidance which influenced her approach to a determination of good character. There was reference to the fact that her approach was wider than considerations of criminal activity and that an application should be refused if the activities were such as to cast ‘serious doubts’ on their character. iv) Under the guidance consideration was to be given to evidence directly linking the claimant to war crimes, crimes against humanity or genocide. In determining the significance of those links consideration was given to factors such as the role of the applicant, the length of his membership and his or her seniority in the group. v) The August decision letter went through the information provided by the claimant with the naturalisation application, evidence given and facts found on his asylum appeal determination, including that he had been found a credible witness. The objective evidence and research was then reviewed and conclusions reached. vi) In those conclusions the defendant found that the claimant had been a child member and then an adult member of the LTTE from 1993 to 1997, he had been a recruitment commander after training with Colonel Karuna when he was responsible for recruitment of over 700 members in a seven month period and the confiscation of homes, he had been aware of the child recruitment and he had been responsible for intelligence gathering on the part of the LTTE all of which cast doubt upon his character. vii) The claimant had made contradictory claims in his naturalisation application compared with his account in his asylum appeal about his involvement with LTTE’s activities which cast serious doubt on his character. viii) The Immigration Judge at his appeal had described the claimant’s involvement with the LTTE and his association with Colonel Karuna and distinguishable from ordinary LTTE supporters. ix) The decision letter concluded, “As a result of your long term and significant support to the LTTE and possible involvement in the commission of crimes, plus your close association with Colonel Karuna, and your important role as a commander and political leader the Secretary of State is not satisfied that you are a person of ‘good character’ for the purposes of the British Nationality Act 1981.”[43]On the evidence, based as it was upon the Claimant’s own account, verified by research, the defendant was entitled to conclude as she did. She clearly followed her own guidance.[44]In the reconsideration decision of 21 March 2014 the letter set out the bases upon which the claimant contended that the earlier decision was incorrect as follows:• He accepts that he was a member of the LTTE but he was recruited at age 16 and was afraid;• His involvement with the LTTE was neither long nor significant;• He was not a close associate of Colonel Karuna;• The LTTE was not a banned organisation until 2001, after your client had fled Sri Lanka;• He has behaved as a model citizen in the UK.[45]The March 2014 decision letter dealt with those points noting that whilst it was accepted that the claimant was 16 when he was recruited by the LTTE he did not choose to leave Sri Lanka until November 1998, after his release from detention that June. Before his arrest in November 1997 he had made no attempt to leave the LTTE or Sri Lanka. His activities in LTTE gave the decision maker sufficient basis for concluding that the claimant had provided significant support to the LTTE. The decision referred to Thamby where it had been found acceptable to refuse a citizenship application on the grounds of an individual’s support for an organisation that has committed international crimes.[46]Both decisions, therefore, applied the right tests and following the published guidance on the part of the defendant.[47]There is nothing in ground one.

Ground Two

[48]The claimant contends that the defendant failed to consider the claimant’s character throughout his life and holistically. Instead, it is submitted, that the defendant focused on a narrow part of the claimant’s life (his activities during the civil war in Sri Lanka) rather than considering that as part of the larger whole.[49]Since the claimant entered the UK he worked at BP from 1999 to 2004, then in customer service at City Souvenir in Marble Arch from 2005 to 2010 and then part-time at Shell Orbital from 2005 until the present time.[50]In 2002 he purchased a property in Barnet.[51]On 18 October 2007 he got married. He now has a three year old daughter called Deeya who is a British citizen.[52]The claimant accepts that he was a member of the LTTE but he was recruited when he was 16. He was afraid and was acting under significant duress. His father and brother had been killed by the LTTE.[53]The claimant submits that the defendant ought to have taken into account the fact that the LTTE was not a banned organisation in the UK until 2001, long after the claimant had left Sri Lanka.[54]The claimant asserts that the defendant’s assessment of his involvement with the LTTE as “long and significant” is unfair given that he contends that he was only with them from 1993 to 1997 and that he would not describe himself as a close associate of Colonel Karuna.[55]The claimant has been working in the UK since 1999. He has no criminal convictions. He is a home owner and parent of a child who is a British citizen. It is submitted that the defendant failed to properly take into account those critical factors.[56]In particular, it is submitted that the defendant failed to properly consider the relevant parts of R (Thamby) v Secretary of State for the Home Department [2011] EWHC 1763 (Admin) which was referred to in the request for reconsideration. Sales J (as he then was) said in [47]:
“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.”
[57]It is submitted that the defendant failed to properly address the relevant issue of character when the alleged conduct happened a long time ago. The defendant had not considered the evidence of good character on the part of the claimant since he had been in the UK.[58]The defendant submits that it was for the claimant to place before the defendant all material on which he wished to rely in support of his claim of good character. The decision of 21 March 2014 expressly referred to the claimant’s contention that he had behaved as a model citizen in the UK. It could not be concluded, therefore, that the defendant had failed to take that into account.[59]Despite the reliance on the case of Thamby that case affirmed at [54] that:
“…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.”
[60]That is not inconsistent with paragraph 47 of that judgment upon which the claimant relies.[61]The defendant submits that it is the claimant’s actual involvement as a commander for the LTTE, a member of the suicide squad and associate of Colonel Karuna and recruiter of over 700 hundred members which weighed against him.[62]The August 2013 and March 2014 decision letters found that the claimant’s efforts to downplay his involvement with the LTTE were contradicted by his earlier statements made in his asylum claim and his subsequent asylum appeal. The fact that the LTTE was banned in the UK from 2001 did not detract from its activities before that date or the claimant’s activities on behalf of the organisation. The decisions acknowledged that the claimant was in the LTTE between the ages of 16 and 20 only. It took into account also that he had not made any earlier effort to leave the LTTE or Sri Lanka.

Discussion and Conclusions

[63]The defendant clearly took into account the youth of the claimant when he was recruited into the LTTE as she referred expressly to it. There was then close examination of the role that the claimant played within the LTTE, and the fact that he made to attempt to leave Sri Lanka until November 1998.[64]The problem that the claimant faces is the scrutiny and findings of the defendant over the period that the claimant was a member of the LTTE. Those findings were that he had been found to be a significant supporter of the LTTE, a recruitment commander, an intelligence officer, part of the suicide squad, that other members of his squad had been killed and that he had associations with Colonel Karuna meant that his profile was distinguishable from ordinary LTTE supporters. The policy guidance in Nationality Policy Guidance and Casework Instruction is that a person will not normally be considered to be of ‘good character’ if there was information to suggest that they had been involved with or associated with war crimes, crimes against humanity or genocide, terrorism or other actions that are not considered to be conducive to the public good.[65]There clearly was evidence here, on the findings made in relation to the claimant’s earlier life, to enable the defendant to come to the conclusion that the claimant should not be regarded as of ‘good character’. That is the consequence of applying the defendant’s own guidance. That does not say that the decision maker has to take a holistic approach. The guidance itself is not under challenge. It cannot be said, therefore, that the defendant’s decision is wrong in law. It is for the decision maker on the facts of each case to determine the relevant approach provided he or she takes in to account all the material considerations.[66]The fact of the claimant’s good character in the UK is relevant, and was noted by the defendant. No issue was taken by the defendant with the claim that the claimant had behaved like a model citizen in the UK. What was referred to in argument as ‘good character redemption’ cannot be ruled out for the future but, at present, looking at matters in the round, the significance of the conduct on the part of the claimant with the LTTE was such that it outweighed more recent events. That was an entirely lawful position for the defendant to reach.[67]The claimant raises the almost rhetorical question, is he forever tainted as a result of his LTTE activities? People can and do become reformed characters. There was no consideration of the effect of the decision on his private life.[68]First, there is no suggestion that the claimant is forever tainted. A similar argument was run and rejected in Thamby where Sales J (as he then was) concluded that the nature and period of support provided by the claimant in his case to the LTTE was so extensive as to raise serious doubts about his good character for the purposes of the BNA [51]. He rejected a submission that the stance adopted by the Secretary of State meant that the Claimant could never satisfy the “good character” requirement saying it was possible that the Claimant could satisfy the Secretary of State in the requisite sense by his activities over time [54].[69]As to the effect on the claimant’s private life that was not raised by the claimant as a matter upon which the original decision was incorrect. It is not directly addressed as a consequence. In the circumstances that cannot be said to be an error of law.

Ground Three

[70]The claimant contends that the defendant’s decision in 2013 failed to consider the best interest of the claimant’s child who was a British citizen.[71]It is contended that the defendant failed to have any or any adequate regard to her policy document, ‘Asylum Instruction Exclusion: Article 1F of the Refugee Convention, 30 May 2012’.[72]Under section 55 of the Borders, Citizenship and Immigration Act 2009 the defendant is required to make arrangements to ensure that immigration, asylum, nationality and customs functions are exercised having regard to the need to safeguard and promote the welfare of children in the UK.[73]As set out in the request for reconsideration in MH & Ors v Secretary of State for the Home Department [2008] EWHC 2525 (Admin) Blake J said at [46] and [49]:
“46. None of the claimants face cancellation of refugee status or deportation but denial of British nationality on the grounds of terrorist sympathies or associations renders them vulnerable to immigration action by way of restriction, revocation and cancellation of their refugee and settled status in the UK. Given the reasons indicated I do not regard those risks as being merely theoretical. It further has a present adverse impact on their ability to travel abroad free from fear or arrest, detention or exclusion. … 49. Given the impact on reputation, personal security, and statelessness I accept that in principle a refusal of an application for citizenship on the grounds relied on in these cases may have an impact on the private life of the applicant. Although the defendant has not sought to publicise the decisions in the press and the anonymity orders made by the courts were designed to prevent public opprobrium of an applicant's character from resulting from a failure to satisfy the defendant that the threshold for citizenship is met, those who are aware that a claimant has failed to achieve British citizenship of extremist association could well face ostracism, and difficulties in employment, business and related social relations.”
[74]The defendant submits that the decision of 22 August 2013 specifically considered the interests of the claimant’s child.[75]In the claimant’s request for reconsideration of 28 October 2013 it was contended that it was in the best interests of the child to have the same nationality as her father. That argument was expressly considered in the decision of 21 March 2014.[76]The case of MH & Ors (which was reversed on appeal) was not relevant to considerations of the best interest of the child. Under section 6(1) of the BNA if the defendant is not satisfied that an applicant is of good character and has good reasons not to be satisfied then the defendant is bound to refuse the application for naturalisation. It cannot tenably be suggested that the defendant must (or even can) grant naturalisation to a person who is not entitled to it under the BNA on the grounds that it would be in the best interest of the applicant’s child.

Discussion and Conclusions

[77]The decision of 22 August 2013 approved the application for naturalisation of the claimant’s child. The March 2014 decision expressly considered the argument that the claimant’s child should have the same nationality as her father and said, “your client’s child has all the benefits and advantages that go along with holding British citizenship. The fact that your client does not hold the same nationality does not detract from this. It is noted that the child’s mother does not hold British citizenship.”[78]The case of MH & Ors referred to does not assist. It was not concerned with consideration of the best interests of the child.[79]Further, if the defendant is not satisfied, applying the relevant test, that the claimant is of good character that she is then bound to refuse the application for naturalisation. Sensibly it is not submitted that a person who would not be entitled to naturalisation would be entitled to it under the BNA solely on the basis that it was in the best interest of their child: that would be an ambitious submission.

Ground Four

[80]This ground was withdrawn at the hearing.

Conclusions

[81]It follows that grounds one, two and three fail. This claim is dismissed.