OM, R (On the Application Of) v Secretary of State for the Home Office [2016] EWHC 1588 (Admin)

[2016] EWHC 1588 (Admin)

Case No CO/6364/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/07/2016

Before

MR JUSTICE KING

Between

Queen on the application of OMClaimant

Secretary of State For The Home OfficeDefendant

Stephanie Harrison QC (instructed by Luqmani Thompson & Partners) for Claimant

Julie Anderson (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: Wednesday 21 st January 2015 & Thursday 22 nd January 2015

Judgment

[1]By these proceedings for judicial review the Claimant seeks to challenge the decision of the Defendant dated the 23rd of May 2014 refusing the Claimant’s application of the 3rd of January 2012 for naturalisation as a British citizen. This decision was made following a re-consideration of the application. There had been previous adverse decisions in 2012 and 2013. These proceedings were commenced originally in relation to the earlier decisions of the 26th of February 2013 and the 10th of May 2013. Collins J. gave permission at an oral hearing on 14th November 2013 in relation to a decision on the 24th of June 2013 on the basis that arguably the decision did not deal with character since 1997 and arguably irrationally ‘discounted’ the view of a Mr Bolton who provided a written statement in support of the Claimant’s account that he had not been involved in any war crimes or crimes against humanity.

[2]The application was refused on the basis that the Defendant was not satisfied the Claimant was of good character as required by section 6 of the British Nationality Act 1981. To quote the decision letter:

‘As a result of the information that your client has provided which includes information about his support, role and involvement for an organisation that regularly committed international crimes or other abuses, I am refusing your client’s application for nationality on the grounds that sufficient evidence has not been provided to satisfy the requirement to demonstrate good character’

[3]In her skeleton argument for the Claimant Miss Harrison QC expressed the issue raised in these proceedings as being:

‘The lawfulness and reasonableness of the Respondent’s decision to deny the Claimant naturalisation on grounds of good character arising from his employment as a serving police/intelligence officer in the Serbian Security Services in Kosovo prior to 1999’

And set out the specific grounds of challenge as now being four: i) Whether the respondent has acted lawfully in applying a threshold of ‘‘serious doubts’ without any or any proper evidential basis in rejecting the Claimant’s good character on grounds that ‘...he has been a willing participant in a joint criminal enterprise and/or involved in or associated with…crimes against humanity’ ii) whether the Respondent has properly directed herself in law and/or acted rationally or reasonably in concluding that the Claimant was ‘a willing participant in a joint criminal enterprise and/or has been involved in and/or supported crimes against humanity committed by the Serbian authorities. iii) whether the Respondent has rationally and/or reasonably considered the evidence of the Claimant’s dissociation from the actions of the Serb authorities after 1997 and/or the evidence of his good character and conduct since 1997. iv) whether the Respondent had acted fairly in refusing to interview the Claimant. This last ground was not pursued in any depth before me.

[4]Previously on the 30th of November 2005 the Claimant had been granted Leave to Remain as a refugee. This grant followed from the Claimant’s successful appeal of 20th September 2005 (date of hearing) and 27th of October 2005 (date of promulgation of decision) to an Asylum and Immigration Tribunal from the refusal of his asylum claim made upon his arrival in the UK on the 15th of April 2005. In reaching the decision she did the Defendant relied upon much that had been said by the Claimant in his immigration interviews and in his witness statements in support of asylum appeal of the 6th of July 2005 and 31st of August 2005 and in other evidence given on his behalf.

[5]The Claimant was born on the 8th of August 1981 in Bor in Serbia formerly the Socialist Federal Republic of Yugoslavia (FRY). He is ethnically ‘Kosovo Albanian’. In 1980 his family moved to Pristina in Kosovo. Between 1986 and 1999 he was a career police officer with the Serbian police Force. He was bilingual fluent in both Serbian and Albanian. Critically for present purposes he was employed in the force’s intelligence services and transferred in late 1992 – 1993 to a Kosovo border town Podujevo. On his own case his main duties were electronic surveillance through intercepting, recording and translating calls and passing on reports of those intercepts to other officers although he had no direct role in operational matters arising from the intelligence gathered. His case now is that between 1992 and 1996 his primary sources of information was in respect of criminal gangs involved in drugs, guns, and people smuggling which was rife following the disintegration of the former socialist states the FRY and neighbouring Albania. He had no other operational role. His case now is that he was not aware at the time of his intelligence being used to facilitate any targeted assassinations by the intelligence services or other Serbian state bodies of ethnic Albanians as part of any systematic campaign by the Milošević regime to eradicate any move to Kosovan independence, although in his asylum claim evidence he said he knew that his intelligence was used for such a purpose. This he says in these proceedings was with the benefit of hindsight.

[6]There was an issue before me as to when precisely the Kosovan Liberation Army (the KLA) whose members it is not disputed were the subject of such targeted assassinations, became a known entity. The Claimant in submission says that on the published background material, that this was not until 1997 and prior to that it was only in 1996 that any real armed resistance to the aggressive policy of Serbianisation in Kosovo began with sporadic attacks being first launched against Serbian, civilian and police targets in early 1996. The argument about dates is said on his behalf to be important because at or about the beginning of 1997 the Claimant went on sick leave and was on extended sick leave (still in the employment of the police) until 1999 when he resumed work as a recruit to the reconstituted Kosovan police service (KPS) subject to UNMIK checks. The chronology produced by the Claimant states that he the Claimant was on an acute psychiatric ward for two periods in 1997 (May to August; September to November) before returning to home care. To the AIT in his witness statements he said his sickness was a pretence and was relied on as an act of disassociation. It has to be said however that the proposition that his sickness was a pretence is one from which the Claimant appears to have rowed back in his witness statements for these proceedings, (see paragraphs 14-17 of his first witness statement (28/05/13) and paragraphs 22- 24 of his second (01/08/14)).

[7]Before turning to the reasoning of the Defendant in her decision letter it is convenient to set out(i) certain parts of the evidence produced on the Claimant’s behalf in the asylum proceedings and to consider the legal framework;

(ii) the legal framework within which the decision was taken. Any emphasis is the emphasis of the court. i). para. 2:

‘I cannot return to Kosovo because I fear being killed by individuals who work for the KLA in Kosovo….’ ii). para. 3: Those people who want to harm me believe I have links to Serbian officials even though since September 1999 when the Kosovan police service came into being as a Kosovan authority (separate from Serbian service) I have worked for the Kosovan Police Service. You see before this time I was working for the Serbian intelligence services (part of the police) in Kosovo. All Albanians who worked for that service were in fear of the KLA. They feared the KLA because since the early 1990s in Kosovo, more than 95% of the Albanian people left the official institutions of Kosovo…However I and some Albanian colleagues who did remain were in fear. KLA wanted Kosovo to be independent and weren’t happy about the Serbs being in Kosovo. The KLA members wanted to gain independence by fighting the official bodies that were running Kosovo. The KLA targeted those of us that were Albanians and still working for the Serbian intelligence services because they believed we were loyal to Serbian people and that we were giving them information’ iii). para. 15: ‘I believe the Serbians also suspect me and do not trust me. You see at the beginning of 1997 while I was working for the Serbian Intelligence service, I saw that Serbians were putting a lot of pressure on Albanians. There were many ethnic conflicts. I was working for the Serbians and felt very fearful and stressed. I had a fear about working against my own people. I went on sick leave for stress. I went to see a psychologist. I have provided to my solicitor documents about my medical condition. In fact I waspretending I was ill so I didn’t have to work for the Serbians. I didn’t work for 8 months. Then the following year in 1998 my son accidently shot himself when handling a gun. He was in hospital. I used this excuse again not to work. I didn’t work for 7 months during 1998. However as soon as the war was over in 1999, the Serbians asked 7 of my Albanian colleagues to return to Serbia with them to continue working for the Serbian Intelligence service. They didn’t ask me. I believe this is because they didn’t see me as loyal or trust me. Instead I began working for the new Kosovan Police Service. Why would a man with mental problems start working again? I am sure the Serbians are therefore suspect of me as too loyal to Kosovo and Albanians.’ i). paragraph 4: ‘the Serbians are specifically suspicious of me as an individual because of my precarious work history with them .When they really needed me during a period in which the KLA went underground (1997), I let them down. I pretended I was ill. You see from 1993 to about 1996 I worked in the town of Podujevo. 40 kilometres from Pristina in Kosovo. During that time I was an inspector for the Serbian Intelligence Service. I was an advisor which is a very high rank - higher than captain. In this as role I was an expert in tapping telephone calls. That was my speciality. I was especially good because I could speak Serbian and Albanian and I could recognise accents and languages – I could tell who was calling from where, so I was very good at this because I listened to all this information from all groups [I] had access to a lot of information. People began to suspect that because I had access to this information that I was in fact acting as a double agent, providing the relevant information to the opposite group. ii). paragraph 5: ‘I suppose I can see why I am suspected of being a double agent. I know that my intelligence work for the Serbian authorities was used to target KLA supporters (including targeted assassinations by Serbian security forces) as this was the work which the Serbian intelligence services was doing at that time. I had to write down what I was listening to conversations between KLA members. I was giving names writing the subject of their conversations, etc…; iii). paragraph 6: It was the stress of these accusations and suspicions that caused me to find an excuse to claim I had mental health problems to go on sick leave. Of course the Serbians were not happy about this. It was in 1997 that the KLA went under ground and the Serbian intelligence service was especially busy and had a lot of work and had a lot of work. They needed me more than ever. However because of the stress I went in sick leave. It was during this critical period that I failed them. Then after the war when in 1999 the Kosovo Police Service was formed I immediately joined up. I am sure that the Serbians are now suspicious that I joined the KPS when I was supposed to be mentally ill. There were very stringent tests to join the KPS which I’m sure the Serbians were aware of. I passed these tests and was clearly mentally healthy, so I’m sure the Serbians are wondering why I claimed to be ill. I believe that the Serbians looked back and realized that it was possible that all the previous investigations that hadn’t gone aswell as they’d hoped weren’t successful because I had tipped off the KLA (which of course I wasn’t). iv). paragraph 7 ‘…The new Serbian authorities are very much against anything to do with the old Serbian regime run by Milošević. Anyone associated with that old regime is being targeted. During my time with the Serbian intelligence service I worked for both Jovica Stanišić and Sreten Lukić people who are now on trial for their role with the former Serbian regime…I met them a few times when they visited us in Pristina to check up on us… Stanišić was the chief of the intelligence staff selected by Milošević. 7C.The Standish expert report produced for the Claimant before the AIT 15. Mr Standish was a senior research fellow, tutor at Durham University specialising in Balkan studies, and an editor of Jane’s Intelligence Digest. He put forward an impressive curriculum vitae as a regional expert specialising in former communist countries including Serbia and Kosovo. In addition he was a journalist specialising in the same region and since July 2000 had been the editor of a publication (Jane’s Intelligence Digest) providing extensive coverage of the military and political situation throughout the Balkan region. He had made a number of visits to Serbia and Kosovo since 1992 meeting and conducting interviews with a wide range of local residents – Albanian, Roma and Serb – as well as government officials and specialists working for the UN and NGOs. 16. Mr Standish had access to the appeal documents of the Claimant including his witness statements and asylum interview records. His observations and expressions of opinion included the following: i) at paragraph 10 he noted the contents of the Claimant’s statement at paragraph 3 that those like himself who remained working for Serbian regime throughout the 1990s when almost other ethnic Albanians had left their posts in the early 1990s were ‘targeted’ by the KLA; ii) at paragraph 23: ‘The appellant also states that he is aware that his intelligence work for the Serbian authorities was used by the Serbian security forces to target supporters of the KLA. He points out this included targeted assassinations carried out by the Serbian authorities …’ iii) at paragraph 24 he noted the fuller account of the Claimant’s motives for taking sick leave in 1997 and the Claimant’s concern that his ‘recovery’ enabling him to join the KPS in 1999 ‘may lead the Serbian authorities to suspect he was tipping off the KLA which he denies having done’; iv) at paragraph 25 he noted the Claimant’s account that he was associated with senior members of the Milošević regime, particularly Jovica Stanišić (director of the state Security Division) and Sreten Lukić (Minister for State Security) whom he had met in a professional capacity during their visits to Pristina and whom the Claimant confirmed were facing trial for their activities. v) at paragraph 34 he noted that after Kosovo’s political autonomy had been suppressed by the Serbian regime headed by Milošević in 1989-90, the vast majority of ethnic Albanians were dismissed from state employment and the small proportion of individuals who remained in post which included the Claimant were required to sign a personal oath of allegiance to the Serbian state; vi) at paragraph 35 he refers to the Claimant’s evidence ‘that he played a key role in Serbian intelligence operations in Kosovo prior to the withdrawal of Serbian forces in June 1999. In particular he was responsible for telephone intercepts and the monitoring of members of the KLA. His evidence is that this information was used by the Serbian forces to target KLA members and supporters for assassination’ vii) at paragraph 36: he refers to the Claimant’s claim that his name, position and role in the Serbian intelligence service during the Milošević era had been made public owing to testimony in open court during the Milošević trial at the International Criminal Tribunal for Yugoslavia (ICTY) at the Hague and recites the evidence given by an ICTY prosecution witness known as K6 under cross examination by Milošević, naming the Claimant as involved in the gathering of information which was used to plan assassinations. viii) at paragraph 36 he comments on the significance of this evidence given at the ICTY trial of Milošević in these terms: ‘...the link between the intelligence gathered by the Appellant in his capacity as an intelligence officer in the Serbian security service and subsequent assassinations is made explicit. Although K6 does not accuse the Appellant of responsibility for killings, his evidence does reveal the extent of the Appellant’s involvement in the Serbian intelligence operation in Kosovo’; ix) at paragraph 40 he observes further that: ‘In addition, the context in which this evidence was raised leaves little room for doubt that the Appellant played an integral role in the gathering of intelligence that was subsequently used by the Milošević regime to murder its political opponents in Kosovo. Although K6 stresses that the Appellant was not personally involved in the actual assassinations in Kosovo, ethnic Albanians who served in such positions during the Milošević era must in my opinion be regarded as being at risk from former members of the KLA – to whom that would be regarded as traitors - as well as other members of the ethnic Albanian community in Kosovo. In my view ethnic Albanians might well feel justified in targeting the Appellant, particularly those whose family members served with the KLA and were killed by Serbian forces, or whose family members were murdered prior to June 1999. This is likely to account for a very significant number of ethnic Albanians in Kosovo’

The legal framework

[8]There is no duty on the Defendant to grant citizenship only a power. Section 6(1) of the British Nationality Act 1981 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 the applicant fulfils the requirements of schedule 1 for naturalisation as a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such as a citizen’

The relevant good character requirement is derived from paragraph 1(1)(b) of Schedule 1:

‘…the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it ….

(b) that he is of good character’

[9]It is well established that there is no right to citizenship and the onus is on the applicant to satisfy the Secretary of State that he is of good character. See for example Sales J (as he then was) in Chockalingam Thamby

[2011] EWHC 1763 (Admin)

at paragraph 40. In any challenge to a refusal of an application on good character grounds the question is not whether the Secretary of State has established that the Claimant was not of good character but rather ‘whether she was entitled not to be satisfied that he was of good character’ (per Stanley Burnton LJ in SK (Sri Lanka)

[2012] EWCA Civ 16

at para. 38. The court can interfere with such a refusal only on well known public law grounds of error of law or irrationality/Wednesbury unreasonableness / procedural unfairness. What it cannot do is substitute its own decision for that of the primary decision maker. This is not an appeal as to the merits of the original application.

[10]Moreover there is no definition of good character in the Act. It is again well established that subject only to the public law concepts of rationality and Wednesbury reasonableness, it is for the Secretary of State not the court to set the standard of good character and its open to the Secretary of State to adopt a high one. See DA(Iran)

[2014] EWCA Civ 654

at paragraph 4 (Lord

Justice Pitchford):

‘The parties are in agreement that the Secretary of State enjoys a significant measure of appreciation in assessing for herself the requisite standard of good character in the factual context of the application under consideration. In…ex parte Fayed [2000] EWCA Civ 253, [2001] Imm AR 134 at paragraph 41 Nourse LJ (with whom in this respect Kennedy and Rix LJJ agreed) observed that the concept of good character was incapable of being defined against a single standard to which all could subscribe. A decision of the Secretary of State could be based on a higher standard of good character than that which might be adopted by another decision maker acting reasonably. Parliament had assigned a minister of the Crown the task of making the judgment whether a person was of good character and it was for the minister to adopt the requisite standard of good character subject only to a requirement of reasonableness’

The Defendant’s Nationality Policy Guidance

[11]The Defendant has issued Nationality Policy Guidance and Casework Instruction to decision makers relevant to determining whether someone is of good character for the purposes of the 1981 Act. In SK at paragraph 36 Stanley Burnton LJ observed that they were in the main not guidance as to policy in the sense of a statement as to the Secretary of State’s exercise of a discretion or power, of the kind considered in R (Lumba) v Secretary of State for the Home Department

[2011] UKSC 12

but rather practical instructions as to go about deciding whether to be satisfied that an applicant for naturalisation has shown he is of good character. Since the Secretary of State cannot waive the statutory good character requirement, the Instructions could not require her to accept the good character of an applicant who could not sensibly be regarded as such. In other words the guidance is not to be regarded as a statute limiting the circumstances in which SSHD would not be satisfied as to good character.

[12]The relevant contents which were considered in both SK and in DA (Iran) include the following.

[13]Chapter 18 is headed ‘Naturalisation at Discretion’: Section 6 British Nationality Act 1981. Paragraph 18.1.3 is in these terms:

‘Naturalisation is at the discretion of the Home Secretary. Under section 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 the 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’

Paragraph 18.1.7 states:

‘In considering the exercise of discretion it is important to look at their case as a whole. We need to be sure, before we agree to waive requirement, that the 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 n the Annexes to this Chapter’

[14]The guidance on the good character requirement is in Annex D. At 1.2 headed (‘Background to Good Character’) it is stated amongst other things the Secretary of State must be satisfied that an applicant is of good character on the balance of probabilities.

[15]As regards war crimes or crimes against humanity, paragraph 1.3 (headed ‘aspects of the requirement’, states that the decision maker will not normally consider a person to be of good character if there is information to suggest:

‘ … (b) They have been involved in or associated with war crimes, crimes against humanity or genocide, terrorism or other actions that are considered not to be conducive to the public good.’

[16]For further guidance on war crimes etc... the decision maker is then sent beyond Annex D to the Nationality Instructions Volume 2 headed ‘War Crimes, Crimes Against Humanity and Genocide’ ‘2.1 One of the requirements for naturalisation as a British citizen…is that the Secretary of State be satisfied that the applicant is of ‘good character’. Applicants should be refused if their activities cast ‘serious doubt’ on their character. Serious doubt will be cast if the applicants have been involved in or associated with war crimes, crimes against humanity or genocide. Serious doubts will be cast if the applicants have supported the commission of war crimes, crimes against humanity or genocide or have supported groups whose main purpose or mode of operation consisted of the committing of these crimes even if that support did not make any direct contribution to the groups’ war crimes or crimes against humanity and genocide. 2.2. In ascertaining whether there are sufficient grounds for refusing an application for involvement in war crimes, crimes against humanity or genocide, consideration will be given to evidence directly linking the applicant with these crimes . It will also be given to factors such as the likelihood of his/her having been involved through membership of, or activities for groups responsible for committing war crimes, crimes against humanity or genocide. In determining the significance of these links, consideration will be given to such factors as the role of the applicant, the length of membership and/or his seniority within that group’

[17]What is meant for these purposes of this guidance by the expression ‘involved in’ or ‘associated with’ war crimes /crimes against humanity has been a matter of debate before me.

[18]Further guidance is given in paragraphs 7 and paragraphs 8 of Volume 2.

[19]Paragraph 7 is headed ‘The Decision’. It states:

‘7.1 the information about an applicant will be considered against information from reputable sources on war crimes and crimes against humanity in the country concerned and where relevant on the groups in which the applicant had been involved. Where these sources provide sufficient evidence to support the view that the applicant’s activities or involvement constitute responsibility for, or close association, with war crimes or crimes against humanity, the application should be refused’

[20]Section 8 is headed ‘Information relevant to war crimes or crimes against humanity‘Material to the present case the following appears (any emphasis is the emphasis of the court) …… 8.4 Although an applicant occasionally will openly admit to having committed crimes which constitute war crimes or crimes against humanity, evidence which my 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 (such crimes). In certain cases the applicant may deny…involvement in (such crimes), 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 (such crimes), and the nature if the involvement of the applicant. 8.5 involvement includes activities where the applicant may not have had a direct involvement in (such crimes) 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). This could include for instance in providing transport to take prisoners to a site where they are going to be murdered’ 8.6 In certain cases membership of a particular group may be sufficient to determine that an applicant has been supportive of, and in some cases complicit in, (such crimes) committed by that group. In such cases consideration will be given to length of membership and the degree to which the group employed (such crimes) to achieve its ends…

[21]I was referred to Annex D at paragraph 4.4 concerning cases of ‘Suspected Criminal Activity’ which has not been subject of a conviction. It states:

‘In some cases information may reveal that a person known or suspected of criminal activity but for various reasons has neither been charged nor convicted. The decision maker will take into account the nature of the information and the reliability of the source. Where there is firm and convincing information to suggest that a person is a knowing and active participant in serious crime (e.g. drug trafficking), the application will be normally refused. However the decision maker will not rely on old reports about suspicions’

[22]I was further taken by Miss Harrison to the jurisprudence on what has to be proved in international law to establish guilt of a war crime / crime humanity both as a primary offender and as a secondary party. The starting point in this context was the Rome Statute of the International Criminal Court furnishing the most recent codification of international law in this regard. For the purposes of the Statute a ‘crime against humanity’ means any of a number of specified acts defined ‘when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack’. Those specified acts include Murder. The constituent elements of the offence are outlined at Article 25 (‘Individual responsibility’) and article 30 (mental element).

[23]Article 25 provides amongst other things at paragraph 3 that a person shall be criminally responsible for a crime within the jurisdiction of the court if that person: …. c) for the purposes of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission…including providing the means of its commission; d) in any other way contributes to the commission of such a crime by a group of persons acting with common purpose. Such contribution shall be intentional and shall either: i) be made with the aim of furthering the criminal activity or criminal purpose of the group…or ii) be made in the knowledge of the intention of the group to commit the crime.

[24]Article 30 (mental element) provides in paragraph 1 that unless otherwise provided a person shall be criminally responsible for such a crime ‘only if the material elements are committed with intent and knowledge’. Under paragraph 2 a person has intent where ‘(a) in relation to conduct, the person means to engage in conduct; and ‘(b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’. And under paragraph 3: ‘…knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.’ know ‘and ‘knowingly’ shall be construed accordingly’.

[25]Miss Harrison referred me to a ruling of the appeals chamber of the ICTY (the International Criminal Tribunal for Yugoslavia) in Prosecutor v Perisic (IT -04-81-A) concerning the liability of secondary parties for war crimes. It was there accepted that aiding and abetting required that the acts be specifically directed to assisting the crimes of the principal perpetrators (par 36) and that ‘in most cases the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove this aid was precisely directed to crimes of principal perpetrators’.

[26]Further in this context I was taken to the way in which Article 1F of the Refugee Convention (excluding from the application of the convention ‘any person with respect to whom there are serious doubts for considering, amongst other things, that ‘(a) he has committed a crime against humanity as defined in the international instruments…), is operated. In an UNHCR Background Note of September 2003, reference is made to the importance of assessing an individual’s responsibility in every case based on knowledge. Thus at section D51:

‘51. In general, individual responsibility, and therefore the basis for exclusion arises where the individual committed or made a substantial contribution to, the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct’

Case law on the interpretation of the policy guidance

[27]What is clear on authority is that for the purposes of rejecting an application for naturalisation by reference to the good character requirement, it is unnecessary to show personal responsibility such as would permit exclusion from the Refugee convention under Article 1F (SK) and the level of involvement or association needs not be of the kind that would engage criminal responsibility in international law. It is not necessary to show that the individual was guilty of a crime against humanity or concerted criminal conspiracy. As Miss Anderson submitted, the consideration is whether there was an involvement with or association with one.

[28]The decisions of the Court of Appeal in SK and DA (Iran) are directly in point.

[29]In SK the Claimant had been an active member of the LTTE Tamil Tigers who had participated in battles and assaults on defined places which had resulted in the murder of prisoners of war although his case was that he had not participated in those murders. Kenneth Parker J, at first instance had held ‘associated with’ war crimes denoted something that engaged ‘personal responsibility’ for their commission; and further considered that the concept of ‘involvement with war crimes’ in the context of the test for good character should be ‘reasonably aligned’ with that required for exclusion from asylum under Article 1F. On appeal both approaches were held to be in error.

[30]Stanley Burnton LJ at paragraphs 29 - 33 drew a sharp distinction between the application of Article 1F in asylum cases and the applicable test in relation to the requirement of good character on an application for naturalisation (any emphasis is the emphasis of this court):

‘29….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. 30. Furthermore, the questions that arise for decision under the two contexts are different, though 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 is of establishing 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… 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 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. 32. Despite the importance of citizenship, I do not find it surprising that the test for exclusion from the Refugee Convention is more stringent than the test for exclusion from naturalisation. 33. For the same reasons I reject the judge’s approach to the interpretation of the nationality Instructions. In paragraph 25 he seems to have assumed it was for the Secretary of State to prove that an applicant was personally responsible for the commission of war crimes. If he was suggesting that the tests for exclusion from the Refugee Convention under Article 1F and that for ineligibility for naturalisation are the same, or if not needed to be explained, I disagree. I do not think the judge gave a good reason for rejecting the submission of counsel for the Secretary of State. Summarised in the second sentence of paragraph 24.’

[31]That second sentence submission in paragraph 24 of the judgement at first instance had read:

‘the SSHD would not be acing irrationally if he took the view that a person who had been a member – particularly if a voluntary and significant member, of an organisation that had engaged, as the LTTE had done, in many war crimes – was not a member of good character’

[32]This submission is reflected in the conclusions of the Court of Appeal at paragraph 39 of the judgment of Stanley Burnton LJ:

‘The respondent was twice involved in battles in the aftermath of which the LTTE murdered prisoners of war. It is not in doubt that the murder of prisoners of war is a war crime. The Secretary of State was entitled to conclude that the respondent, if not involved in war crimes, in the sense of personally carrying out such murders, was associated with such crimes…The respondent was certainly actively involved in an organisation that carried out acts of terrorism…The conduct of the respondent as a member of the LTTE…constituted sufficient reason for her not to be satisfied that he was of good character. In my judgment, the Secretary of State’s decision did not depart from the Nationality Instructions…’

[33]In DA (Iran) following SK, as was observed in the decision letter in this case, the Court of Appeal upheld a decision to refuse an application for nationality by an individual who had been ‘involved in’ crimes against humanity through his work as a conscript to a state body (the Iranian prison service). The applicant had worked as a prison guard escorting prisoners to be executed and removing bodies after execution. The court rejected an appeal based on the submission that the Secretary of State had failed properly to take into consideration as a factor relevant to her statutory judgment that the appellant’s military service in Iran had been conscripted and involuntary.

Chockalingam Thamby

[34]Prior to these decisions of the Court of Appeal, Sales J. (as he then was) in Chockalingam Thamby (a case also concerning an applicant’s membership and support for the LTTE) had rejected a submission that the ‘wide approach’ to good character adopted by the Secretary of State in paragraph 2.1 of the War Crimes Guidance (in particular that mere support for a group whose main purpose or mode of operation consisted of the committing of the war crimes etc…, would cast serious doubts on character, even if that support did not make any direct contribution to the groups’ crimes) was incompatible with ‘the policy’ contained elsewhere in the guidance, (for example in ‘The Decision’ paragraph 7.1 which was ‘directed to an applicant’s personal responsibility for or involvement in war crimes etc…’).

[35]At paragraph 42 his judgment, having observed that on authority (ex parte Al Fayed – see para 10 above) it was open, so long as she acts rationally, to the Secretary of State to adopt a high standard of good character, higher than other reasonable decision makers might have adopted, continued in these terms (any emphasis is that of this court). ‘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 etc…]’. 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 committing war crimes should have been liked 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 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’

[36]Having ruled that the rest of the Guidance fell to be read in the light of the basic test adopted for good character in paragraph 2.1 of the War Crimes Guidance rather than the other way round, Sales J nonetheless at paragraph 47 emphasised the element of awareness within that test in the context of that particular case:

‘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’

The Decision Letter

[37]I turn now to the decision letter of the 23rd of May 2014.

Statements of principle

[38]The opening paragraphs set out the applicable principles flowing from the provisions of section 6(1) and paragraph 1(1)(b) of Schedule 1 to the British Nationality Act to which I have already referred in some detail. No challenge has been made before me to the correctness of these principles. The decision referred for example to the burden being on an applicant to satisfy the Secretary of State that they were of good character, that the 1981 Act contained no definition of good character and to the published guidance on the Defendant’s approach. It accurately stated that the Defendant set a high standard in relation to applications for nationality and that the requirement to demonstrate good character went wider than considerations of criminal activity leading to convictions and sentencing by a competent court and that the approach differed from that applicable to applications for international protection under the Refugee Convention and to determining whether exclusion was applicable under Article 1 F; that a precautionary approach was applied and that section 1 of volume 2 of the Instructions on War Crimes etc… made clear that an application should be refused:

‘if the activities of an individual cast ‘serious doubt’ on their character’; that such serious doubt would be cast if ‘they have been involved in or associated with war crimes, crimes against humanity, crimes against humanity or genocide’; that in ascertaining whether it was appropriate to refuse an application for involvement in war crimes etc…consideration would be given to ‘evidence directly or indirectly linking the applicant with these crimes’ and that in determining the significance of these links consideration would be given to such factors as ‘the role of the applicant, the length of membership, and/or his seniority’

Application of the principles to the Claimant’s application

[39]Having referred to the Court of Appeal judgment in DA as upholding a refusal decision based on ‘involvement’ with in crimes against humanity through work as a conscript for a state body, the letter referred to ‘involvement with crimes against humanity through the Serbian Intelligence Service’ ‘as a relevant consideration in determining the Claimant’s application in principle’.

[40]The letter then set out in a detailed way how the Claimant’s work for the Serbian Intelligence Service had been an integral part of his asylum claim and that material information (which was set out) had been provided from various sources including the Claimant’s immigration interviews, the Standish expert witness statement (in particular there was ‘little room for doubt that that the Applicant played an integral role in the gathering ofintelligence that was subsequently used by the Milošević regime to murder its political opponents in Kosovo’, and in the Claimant’s witness statements (see above). It then referred to research ‘from a wide range of reputable sources; that the ‘Serbian regime committed international crimes in Kosovo’ ‘during the period in which (the Claimant) worked for the intelligence service’.

[41]The research was identified. It included for example a Human Rights Watch report of 1993; a US State Department report of 1994; a UN Commission report on Human Rights in Kosovo of 1994; an Amnesty International report of 1994; a further Human Rights Watch report of 1994; further US State Department reports from 1995 and 1997; and a 1997 UN General Assembly report.

[42]The letter further referred to evidence given at the ICTY [see paragraph 7C (vii) and (viii) above] confirming the Claimant’s membership of the intelligence service and to the Claimant’s statement that he was connected through his work to senior members of the Milošević regime (Stanišić and Lukić – again para 7 B (iv) above).

[43]Having referred to various sections of the material Guidance to which I have already referred [including that at para. 1.3 of the chapter 18 (para. 13 above) that the decision maker would not normally consider a person to be of good character if there is information to suggest…they have been involved in or associated with crimes etc…], the letter then went on to record as an application of the principles to the Claimant’s application, that based on the material before the Defendant ‘it is considered that (the Claimant) was a willing participant within what been found to be a joint criminal enterprise that existed to intimidate and persecute potential opposition to Serbian hegemony in Kosovo’ and, referring to the Claimant not having given a clear and consistent account of the extent to which he said he was aware of the purpose of his work whilst an active member of the Serbian Intelligence Service, that ‘to the extent that (the Claimant) now claims that he was unaware of what the purpose of his intelligence gathering was, that claim is not credible’.

[44]To the Claimant’s now statement that he was not involved in specific monitoring of the KLA because it did not exist at the material time, the letter observes that the Claimant had not given any assurance or evidence that there had not been any abuses or risks of abuse in relation to those who were monitored, whatever their identity, and bearing in mind the very poor human rights situation during the time, the Secretary of State ‘is satisfied that even before (the Claimant’s) involvement in the activities of the Serbian Intelligence Service in relation to the assassination of KLA supporters, (the Claimant) was providing significant support to an organisation that committed human rights abuses and ‘international crimes’. Having referred to the Claimant’s own assertion that he as an Inspector was of a high rank within the Serbian Intelligence Service and that as such, the Secretary of State was of ‘the opinion that (the Claimant) ought to have been fully aware of the purpose of his intelligence gathering during 1992-1996,’ the letter then observes that as on the material before the Defendant, significant abuses were carried out by the Serbian police during 1994-1997 it ‘is reasonable to suggest that these activities of the Serbian police were facilitated by intelligence gathering and support provided by units as the one (the Claimant) worked for’.

[45]The critical conclusion then arrived at this stage of the letter is in these terms: Applying the relevant principles, the Secretary of State considers that there are reasonable grounds to consider that serious doubt is cast on (the Claimant’s) ability to satisfy the requirement of good character… (the Claimant) provided long standing service to an organisation that was undoubtedly responsible for persistent and widespread crimes against humanity and human rights abuses over a significant period of time. This service included the gathering of intelligence that he was aware or ought to have been aware, was being used to facilitate murders by security forces, and work to support the regime that ordered these murders and other international crimes.’

[46]The letter then went on to consider other submissions and evidence put forward on the Claimant’s behalf but ultimately concluded that none were sufficient to remove ‘the serious doubts as to (the Claimant’s) character that result from his long service for the intelligence service that was integral to the ability of the oppressive Serbian regime to carry out human rights abuses during the period of (the Claimant’s involvement)’.

[47]I record some of the Defendant’s responses to these further matters as set out in the decision letter in so far as they have formed part of the challenge before me. The reasons for the Claimant’s leaving of service in 1997 As to this the letter gives the conclusions of the Defendant in these terms:

‘When (the Claimant) believed his own life was at stake he says he did take steps to suspend active service. However there is evidence that (the Claimant) did not deliberately seek to leave the service but was suffering from a mental illness that prevented him continuing in active service for the time being. It seems he continued to receive sick pay after ceasing active service at this time indicating that he was still considered to be a loyal supporter and not someone who had sought to disassociate themselves from the service or voiced disapproval or anything than active loyalty required to maintain that position. In all the circumstances, to the extent that it is claimed that (the Claimant) going sick was a deliberate act, it is considered that this was an act motivated by self preservation rather than an act of disassociation’

The statements of Mr Bolton

[48]Mr Bolton had been seconded in 1999 to assist in the United Nations overseas programme supporting civilian police and came to assist in amongst other things the identification and vetting of suitable candidates for the reconstituted KPS which, as already indicated, the Claimant came to join in 1999. In that capacity Mr Bolton had met up with the Claimant a number of times. The thrust of his evidence was that the Claimant had passed the rigorous vetting process and there was nothing reported to him at the time that the Claimant had ever been involved in crimes against humanity; and that he would have expected a number of things to have happened if the Claimant had been suspected of such involvement including reprisals by the KLA and rejection by the other Albanians in the police force or elsewhere. The response to Mr Bolton’s evidence in the decision letter included the following:

‘…It is noted that Mr Bolton was not an associate of (the Claimant) in the time to which the issues concerning his activities for the Serbian Intelligence Service relate. Mr Bolton arrived in Kosovo in 1999 which post dates the Claimant’s work for the Intelligence Service. It is therefore considered that (he) is unable to provide first hand evidence in relation to (the Claimant’s) activities prior to 1999…It is Mr Bolton’s evidence therefore that (the Claimant) was not involved in war crimes as he was not personally aware of it. It should be noted that the Secretary of State has not accused (the Claimant) of personally undertaking executions, torture or any of the other activities that may be described as ‘war crimes’

. The finding made in relation to (the Claimant) is that his work for the Serbian Intelligence Services aided the Serbian regime and directly assisted in the commission of the crimes carried out by the regime. As such the Albanian community may well have not considered (he) was engaged in war crimes but that does not suffice to remove all adverse issues in relation to good character for the purpose of the nationality application…that (the Claimant) may have been an ‘excellent candidate’ for the KPS’ and ‘pretty clean’ does not detract from the fact that (the Claimant) undertook work for the Serbian Intelligence Service which directly assisted in the commission of the crimes carried out by the regime’.

The rival submissions

[49]The Claimant’s case is that on analysis, by her decision, the Defendant, without any proper evidential foundation, has made findings of fact, including facts of ‘past misconduct’, adverse to the Claimant, which are the basis of the refusal of the application for naturalisation; that is to say the Claimant’s case is the Defendant has made adverse findings of fact, including findings of participation in a joint criminal enterprise to commit crimes against humanity which are then found to cast ‘serious doubts on the good character of the applicant’. At the core of the grounds pursued before me is that, assuming the above premise to be correct, it is for the Defendant to demonstrate / or it was for her to be satisfied that she has / had a proper evidential foundation for these findings which need to be established ‘on the balance of probabilities’ ‘on the basis of clear and cogent evidence’ and to a ‘standard commensurate with the gravity of the allegation’ which it is submitted she cannot do or as to which she could not rationally have been satisfied. In so far as there have been findings made of the Claimant being a party to a criminal joint enterprise to commit war crimes etc…or an aider and abetter to such crimes (and the Claimant says there have been such findings) then in determining whether there is such a proper evidential foundation, regard must be had to the jurisprudence in international law on the actus reus and mens rea of such criminal liability. By the first ground identified in Miss Harrison’s skeleton argument (see paragraph 3 (i) above) a prior challenge is made to the whole ‘serious doubt’ approach to good character in the context of such findings of past misconduct.

[50]The Claimant’s submissions of law with regard ‘to the approach and basis for a proper conclusion of involvement and association with a regime perpetrating crimes against humanity giving rise to serious grounds for doubting good character for the purposes of naturalisation’ (Claimant’s skeleton at para 49) were helpfully summarised in Miss Harrison’s Summary of ‘Key Submissions’ as follows; 1. Although the burden of establishing the requirements for naturalisation is on the applicant, where the SSHD rejects the application and relies on any allegations of misconduct and makes adverse findings of fact (e.g. of criminality, fraud/ dishonesty, involvement in international crimes) which are found to cast serious doubts upon good character, then common law fairness requires that the SSHD is satisfied that those findings are and can be established on the basis of clear and cogent evident evidence, and to a standard commensurate with the gravity of the allegation; 2. Allegations and findings of conduct that are said to constitute crimes against humanity or involvement in crime against humanity require evidence meeting the civil standard of balance of probabilities (more likely than not) or at least a clear and cogent evidential basis; 3. The SSHD has not applied this approach. At its highest (378) the SSHD asserts that there are ‘reasonable grounds’ for the findings made. However even if the SSHD has proceeded on this basis, no rational or reasonable decision maker could conclude that there was a sufficient evidential basis to support the findings made; 4. If which is denied and all is required is reasonable grounds, that must still be based on objective facts not suspicion or inference unless such inference is irresistible and the only possible inference that could be made.

[51]At paragraph 50 onwards of her skeleton argument Miss Harrison expressed her basic submission thus: ‘50. The Defendant has made the decision to refuse citizenship on the basis of ‘serious doubts’ as to the good character of the Claimant. Properly construing and/or fairly applying s.6 of the BNA 1981, serious doubts alone are not a sufficient basis of to refuse citizenship. Accepting of course that the Claimant has the burden of establishing good character: DA (Iran)…where the SSHD rejects that and concludes the burden is or was not discharged, there must be an evidential basis and its cogency depends upon the gravity and seriousness of the allegations that the SSHD makes in rejecting the application on good character grounds…54. In this case an initial basis of the refusal was that the Claimant had himself made an admission of involvement in crimes against humanity (307; 312; 313): targeted assassination of suspected KLA members or supporters. This is not now maintained in the recent refusal letter in light of the evidence provided both from the Claimant, the objective country evidence and other supporting material.

55. The SSHD has however failed to direct herself and/or properly apply the policy in identifying a proper evidential basis for the assertion that the Claimant was part of a ‘joint criminal enterprise’ and directly assisted in the commission of such crimes (377; 380) ‘and/or involved in and/or supporting crimes against humanity committed by others in the Serbian security forces’.

[52]The Defendant’s response in the round is that this whole approach of the Claimant to the decision of the Secretary of State is misconceived and impermissibly reverses the burden of proof as regards the establishment of the requirement of good character. Although, it is said, the grounds have been cast in public law terms of error of law or rationality /reasonableness (e.g. ‘whether the respondent has properly directed herself in law and /or acted rationally and reasonably in concluding the Claimant was a ‘willing participant in a joint criminal enterprise’) on any proper analysis, these proceedings are an impermissible attempt to ‘appeal the decision of the appointed decision maker when Parliament has not provided for any such appeal’. To quote paragraph 3 and 4 of Miss Anderson’s skeleton argument: ‘3…All the grounds seek to use judicial review as a platform to ‘appeal’ the decision of the appointed decision – maker. Parliament has declined to provide any jurisdiction for any appeal, let alone any appeal on fact as well as law. The tendentious approach to the factual background in the Claimant’s submissions that attempt to rewrite history casting the Claimant in a favourable light do not represent an objective view and certainly does not meet the steep test of demonstrating the only rational view of the facts. 4…In so far as there are allegations of factual ‘error’ under the third ground of claim (to challenge what are really inferences that may be drawn on the facts) they serve to underscore that this is an illegitimate attempt to raise an appeal on fact. There is no attempt to show that the stringent test for a mistake of fact that could constitute an error of law (per E

[2004] EWCA Civ 49

...)’.

[53]I turn to put more flesh on the Claimant’s submission before me.

[54]The material adverse findings of fact to be extracted from the decision letter were identified by Miss Harrison in her ‘Summary of Key Submissions’ as follows (at para. 5): i) the Claimant was a willing participant in what has been found to be a joint criminal enterprise to intimidate and persecute potential opposition to Serbian hegemony in Kosovo. This (in turn) is based upon the following findings: - a). The Serbian intelligence service was responsible for international crimes including the murder of KLA members and supporters; (377); - b). The Claimant provided loyal and active support for the Serbian regime and its intelligence services, through his contribution to its activities which constituted crimes against humanity including extra judicial execution (377); - c). The Claimant aided and directly assisted these crimes; (377 and 380); - d). The Claimant was aware that the purpose of his intelligence gathering was to carryout such crimes (extra judicial executions) and his assertion to the contrary is not credible and he knew or ought to have known what the purpose of the intelligence gathering was to commit such crimes (377) namely to facilitate murders by security forces and work to support the regime that ordered those murders and other international crimes; (378 and 381); - e). Even if extra judicial killings of the KLA and its supporters were not the purpose of the intelligence gathering there is no assurance or evidence that they were not being used for other used for other abuse, the SSHD is satisfied that he was providing sufficient support to an organisation committing human rights abuses and international crimes. (378). ii) It is not disputed that the Claimant went on leave from his job from end 1996-1997 but it was not a deliberate act of disassociation. It was motivated by self preservation; (379); iii) Mr Bolton and Dr Korovalis’ evidence does not corroborate the Claimant’s claim that he was not aware of the purpose of his work whilst he was an active member of the Serbian intelligence service. (381)

[55]These findings are then challenged in the following way.

[56]First it is said that findings (a-d) are all founded on a flawed factual basis that the intelligence gathered by the Claimant between 1992-1996 was used for the purpose of the targeted assassinations of KLA member/supporter. This fact is said to be flawed and undermined by the objective evidence which is said to confirm that the KLA was not a known entity operating in Kosovo until 1997 and that any concerted practice of assignation and murder of the KLA members/supporters was during the period after 1997 and when the Claimant was absent from his employment. Further whilst the Defendant was entitled to rely on the information in the asylum application which she had treated as an admission of complicity in such assassinations, that conclusion was no longer rationally or reasonably sustainable in the light of the subsequent evidence and representations from the Claimant himself which it is said is confirmed ‘by the unchallenged objective evidence as to the time line of the emergence of the KLA and the policy/practise of assassinations’.

[57]As to (e) it is said that there ‘is simply no evidential link’ between the Claimant’s role as an intelligence officer in Podujevo and abuse committed elsewhere. The only ‘actual’ evidence about what evidence he gathered was used for between 1992-1996, it is said was from the Claimant himself and ‘it was part of ordinary policing in investigating serious organised crime’ and there was, it is said, ‘no evidence that targeted killing or other abuse was taking place in respect of this involvement in organised crime. The ‘objective evidence’ demonstrated that this was a major issue.

[58]As to (ii) it is said that the Claimant has given a combination of factors that lead to his decision to stop working and there is no rational basis for rejecting his account on this matter and none is identified.

[59]As to (iii) it is said that on any rational or reasonable consideration of Mr Bolton’s evidence it does corroborate the Claimant’s account of the purpose of his work. If it was for the purpose of participating in a joint criminal enterprise to commit or aid crimes against humanity in particular targeting of KLA members or supporters i) the Claimant would not have avoided reprisal by the KLA given that over 500 others were murdered; ii) he would not have passed the rigorous vetting of the UNMIK forces; iii) allegations would have been made against him (iv) he would not have been accepted by other Albanians in the police force or general community and he would have at least been investigated by the ICTY.

[60]The Defendant in response as I have indicated submits that this whole approach of demanding that the Secretary of State justify her decision that the she was not satisfied as to good character by reference to evidence making out the elements of an international war crime to be wholly misconceived, and misunderstands that which the Defendant was saying in her decision letter which was for the reasons given she was not satisfied the Claimant had discharged the burden which was on him to establish the requirement of good character.

The Court’s Conclusions

[61]I have reflected carefully upon the challenges made on behalf of the Claimant but ultimately I have not been able to accept any of them. I consider the overall thrust of the Secretary of State’s counter submissions to be well made.

[62]I remind myself again that this is not an appeal on the merits against the decision of the Secretary of State to refuse the application for naturalisation on the good character ground. In any challenge to such a decision by way of judicial review the question is not whether the Secretary of State has established that the Claimant was not of good character but rather ‘whether she was entitled not to be satisfied that he was of good character’ and the court can interfere only on the established public law grounds of error of law or irrationality/Wednesbury unreasonableness or procedural unfairness. As was said in SK while the Secretary of State must exercise her powers reasonably, essentially the test for disqualification from citizenship is subjective and if the Secretary of State is not satisfied that an applicant is not of good character and ‘has good reason not to be satisfied’ she is bound to refuse naturalisation.

[63]The critical question in this case is whether the Claimant can establish that through error of law or through irrationality in her approach to the information before her, there was no ‘good reason’ here for the Secretary of State not to be so satisfied as to the Claimant’s character or rather that the conclusion of the Defendant that there was such good reason was perverse. I find it impossible on the information which is known to have been before the Defendant at the time of her decision, to find this has been made out.

[64]Contrary to the underlying theme of the Claimant’s submissions, the Secretary of State has not purported to find the Claimant to be guilty of any war crime or crime against humanity in the sense of a finding of his being complicit in such a crime or party to a joint conspiracy to commit such a crime which would satisfy the requirements of international law both as to actus reus and mens rea. The Secretary of State has expressly in her letter disavowed such a finding. As already set out the material jurisprudence is that there is no onus on the Secretary of State to prove (on any standard of proof) that the Claimant was personally responsible for the commission of war crime or aided and abetted such a crime in terms of criminal responsibility. I agree with Miss Anderson that the essential consideration in the context of the present case is whether the Secretary of State was entitled to conclude there was in the case of the Claimant ‘involvement with’ or ‘association with such a crime’ in a sense which does not have to engage criminal responsibility. On authority (see DA ) it is open to the Secretary of State to find such involvement by reference to a factual link between the activities of the individual applicant and such crimes or joint criminal conspiracy, albeit the fact of such a link does not establish personal responsibility in the criminal sense.

[65]The starting point in this context in this case is whether the Secretary of State was entitled on the information before her to find a factual link between the individual applicant and the crimes against humanity, in the above sense. In the present case, as Miss Anderson submitted, it is impossible in my judgment to argue that the Secretary of State was irrational in concluding that the Claimant’s intelligence activities for the Serbian Intelligence Services in fact facilitated the targeted assassinations of ethnic Albanians in a systematic campaign to eradicate any move to Kosovan independence and as part of the longstanding campaign of ethnic cleansing by the Milošević regime. The evidence in support of such proposition is to be found in the material provided by the Claimant in his asylum proceedings which I have already set out in detail, including not only what the Claimant himself asserted (see para 7B above) but that provided by Mr Standish.

[66]The next question is whether on the information before her the Secretary of State the Secretary of State was entitled to find that the Claimant’s activities in this regard cast ‘serious doubts’ on his character. I again find it impossible to find having regard to that information and the approach to it disclosed in the decision letter, that the Secretary of State was not so entitled. She was entitled in this regard to have regard to the Claimant’s own assertions as to his high rank in the intelligence services and to make a finding (as she did) having regard to all the surrounding circumstances identified in the decision letter as to what the Claimant knew or ought to have known as to the purposes for which his work was being used. Her conclusion that any claim or lack of awareness was not credible cannot be shown to be irrational.

[67]It is true that the Claimant since the asylum proceedings has sought to explain away his factual involvement by saying either(i) the intelligence provided was not used to kill until after he went on sick leave in 1997 because the KLA did not exist until 1997 and/or

(ii) he did not know and could not have known what was happening because the KLA did not exist until 1997 but again as Miss Anderson submitted, a submission with which I agree, the Defendant was not obliged to accept either explanation as negating the link between his intelligence and the extra judicial killings of ethnic Albanians by the Serbian State bodies.

[68]I am bound to say that the exercise undertaken by Miss Harrison before me to take me through the available so called objective evidence (the Human Right Watch reports and so forth) in order to make out a case that the ‘findings of fact’ of the Secretary of State (as identified by Miss Harrison, see above) were ‘factually flawed’, was one which ultimately I have concluded was of little assistance to me. That self same material was relied upon by the Secretary of State to demonstrate that whenever it was that the KLA emerged as labelled as KLA [she would say in any event that one of the Human Rights Watch reports (‘Under Orders’) supports the view that the KLA as an organised entity emerged in 1996 not 1997 and had carried out a number of attacks throughout 1996 with the same modus operandi,] there was in any case objective material (the US State Department Report for 1993 referred to in the decision letter) that the Serbian police had been guilty of systematic extrajudicial killings and human rights abuses as part of a systematic repression of ethnic Albanians in the Kosovo region.

[69]On the totality of the information before the Secretary of State (including I repeat that which was put forward by or on the Claimant’s behalf in asylum proceedings) I find it impossible to find that the Defendant came to any flawed findings of fact which critically undermined her finding that the Claimant had not discharged the burden which was on him to satisfy the good character requirement. In this regard I find nothing perverse in the Defendant’s consideration (identified as factor (e) by Miss Harrison) that there was no assurance or evidence provided by the Claimant (‘bearing in mind the very poor human rights situation during the time’) that the intelligence gathering for which the Claimant accepted responsibility was not being used for other such abuses. The Defendant was not obliged to accept at face value the Claimant’s now assurance that the intelligence gathered between 1992 and 1996 was used only for ordinary policing purposes. The differences between that which the Claimant was saying in his asylum proceedings (again see paragraph 7 above) of the abusive use to which his intelligence was being put apparently to his knowledge, compared to that which he has put forward for the purposes of his naturalisation application are stark. Miss Harrison sought to persuade me in effect that it was perverse of the Secretary of State not to accept the Claimant’s later accounts, particularly with regard to the objective evidence. Again I find that an impossible submission to accept. The Defendant was not obliged (whatever view might be taken of the objective evidence relied on) to ignore the earlier material, and in particular the Claimant’s earlier statements, when deciding whether she had ‘serious doubts’ as to the Claimant’s character. Again as Miss Anderson submitted, where there is inconsistency between the evidence provided by an applicant it is not for the Secretary of State to force resolution of such inconsistency. She can rely on whatever elements she considers apt.

[70]Further I can find nothing of substance in public law terms in the criticisms made of the Defendant’s rejection of the Claimant’s plea of going on sick leave as an act disassociation (if in truth such plea is being made) or of her approach to the evidence of Mr Bolton.

[71]Given the varying accounts given by the Claimant as to whether his illness was feigned or genuine, taken with the fact he continued in service and received all benefits of such continuing service, including promotion and pay, I can see nothing irrational in the Defendant concluding as she did.

[72]As to Mr Bolton’s evidence, the criticisms in truth are no more than a disagreement with the weight and significance which the Defendant chose to put upon such evidence. That is not a basis which can undermine the Defendant’s decision in public law. My conclusions are the same as regards the criticisms levelled at the way the Defendant approached the other material put forward as mitigating factors (his subsequent good character for example). It was not irrational for her to conclude that none was sufficient to remove the serious doubts as to the Claimant’s good character ‘resulting from his long service for the intelligence service that was integral to the ability of the oppressive Serbian regime to carry out human rights abuses during the period of the Claimant’s involvement’.

[73]In the round therefore I cannot accept that the approach of the Secretary of State to this application was flawed in law or irrational in the way contended for by the Claimant. Certainly I find the challenge to the ‘serious doubt’ approach to whether an applicant has discharged the burden upon him to satisfy the good character requirement, to be contrary to the established jurisprudence in this field. There is no burden of proof upon the Secretary of State to justify her decision in the way suggested. I accept of course that the Defendant’s conclusion as to there being ‘good reason’ seriously to doubt an applicant’s good character has to be rational and not Wednesbury unreasonable but in my judgement it is impossible to say on the information before her, that she was not entitled to find such good reason in this case. There is force in that which Miss Anderson wrote in her skeleton argument at paragraph 43:

‘In any event in this case the serious doubts are founded on undisputed facts so cannot be dismissed as plainly groundless. The Claimant cannot deny his voluntary long service for Serbian Intelligence that he accepts directly facilitated the extrajudicial killings and abuses by state actors. The Claimant does not dispute that he was named in testimony in the context trials for crimes against humanity and that he worked in association with the notorious Akran. He may seek to explain away his involvement or make a claim to ‘economic’ or other ‘duress’ but that does not demonstrate that it is irrational to raise doubt on the established facts.’

[74]For all these reasons this claim is dismissed.