ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Kenneth Parker
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE STANLEY BURNTON
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|SK (SRI LANKA)
Shivani Jegarajah and Charlotte Bayati (instructed by Birnberg Pierce & Partners) for the Respondent
Hearing date : 20 December 2011
Crown Copyright ©
Lord Justice Stanley Burnton:
"IMPORTANT: Before completing this form, you should read the accompanying Guide. "
The Guide AN included the following:
"3.9-3.11 You must also say here whether you have had any involvement in terrorism. If you do not regard something as an act of terrorism but you know that others do or might, you should mention it. You must also say whether you have been involved in any crimes in the course of armed conflict, including crimes against humanity, war crimes or genocide. If you are in any doubt as to whether something should be mentioned, you should mention it . This guidance is not exhaustive. Before you answer these questions you should consider the full definitions of war crimes, crimes against humanity and genocide which can be found in Schedule 8 of the International Criminal Court Act 2001 at the following website...
3.12 You must say whether you have been involved in anything which might indicate that you are not of good character. You must give information about any of these activities no matter how long ago it was. Checks will be made in all cases and your application may fail and your fee will not be fully refunded if you make an untruthful declaration. If you are in any doubt about whether you have done something or it has been alleged that you have done something which might lead us to think you are not of good character you should say so."
"You must also say here whether you have had any involvement in terrorism. If you do not regard something as an act of terrorism but you know that others do or might, you should mention it. You must also say whether you have been involved in any crimes in the course of armed conflict, including crimes against humanity, war crimes or genocide. If you are in any doubt as to whether something should be mentioned, you should mention it.
The following information provides guidance on actions which may constitute genocide, crimes against humanity and war crimes.
This guidance is not exhaustive. Before you answer these questions you should consider the full definitions of war crimes, crimes against humanity and genocide which can be found in schedule 8 of the International Criminal Court Act 2001 at the following website:
http://www.hmso.gov.uk/acts/acts2001/20010017.htm. Alternatively, copies can be purchased from the Stationery Office, telephone 0870 600 5522.
It is your responsibility to satisfy yourself that you are familiar with the definitions and can answer the questions accurately."
The booklet includes definitions of genocide, crimes against humanity, war crimes, terrorist activities and organisations concerned in terrorism. The definitions of war crimes, terrorist activities and organisations concerned in terrorism are as follows:
Grave breaches of the Geneva Conventions committed during an armed conflict. This includes an internal armed conflict and an international armed conflict. The types of acts that may constitute a war crime include wilful killing, torture, extensive destruction of property not justified by military necessity, unlawful deportation, the intentional targeting of civilians and the taking of hostages.
Organisations concerned in terrorism
An organisation is concerned in terrorism if it:
a. commits or participates in acts of terrorism,
b. prepares for terrorism,
c. promotes or encourages terrorism (including the unlawful glorification of terrorism), or
d. is otherwise concerned in terrorism"
"In this section you need to give information which will help the Home Secretary to decide whether he can be satisfied that you are of good character. Checks will be made with the police and possibly other Government Departments, the Security Service and other agencies."
"3.8 Have you ever been charged or indicted inside or outside the United Kingdom with a criminal offence for which you have not yet been tried in court?
3.9 In times of peace or war, have you ever been involved in or suspected of involvement in war crimes, crimes against humanity or genocide?
3.10 Have you ever been involved in, supported or encouraged terrorist activities in any country? Have you ever been a member of or given support to an organisation that has been concerned in terrorism?
3.11 Have you ever, by any means or medium, expressed views that justify or glorify terrorist violence or that may encourage others to terrorist acts or other serious criminal acts?
3.12 Have you engaged in any other activities which might indicate that you may not be considered a person of good character?"
The respondent ticked the "No" box against each of these questions. The form had space for further details to be provided by the applicant , headed "If you have answered Yes to any of the questions 3.7-3.12 please provide details below". He left this blank.
"You have stated that you were a member of the LTTE between 1990 and 1996. You served in the front lines as an infantryman. You fought at the Pooneryn battle in 1993. As shown in this evidence, LTTE fighters committed the war crime of the murder of POWs during this battle. You also fought in the battle at Mullaitivu in 1996, when you were in command of a squad of ten fighters. As shown in the evidence, LTTE fighters committed the war crime of the murder of POWs in the aftermath of the Mullaitivu battle. It is considered that you would have known about the abuses committed by the LTTE and may have been directly involved.
Your membership of the LTTE, an organisation which was responsible for widespread and systematic War Crimes against Humanity whilst you were a member, and, in particular, your involvement in battles during which war crimes took place, means that the Secretary of State is not satisfied that you are a person of 'good character' for the purposes of the British Nationality Act 1981.
Furthermore, on your application form you indicated that you had no involvement in war crimes, crimes against humanity or acts of terrorism. You also indicated that you had not supported any organisations involved in the aforementioned acts. However, the available evidence shows that the LTTE was responsible for war crimes, crimes against humanity and acts of terrorism between 1990 and 1996 i.e. whilst you were a member of the LTTE. In particular the evidence shows that the LTTE was responsible for the assassination of Rajiv Gandhi in 1991. It is not credible that you would not have been aware of the assassination of Rajiv Gandhi or of the convictions of LTTE members for this crime. As such, it is considered that you must have been aware of the LTTE's role in acts of terrorism. Your failure to supply this information on your naturalisation application form means that the Secretary of State is not satisfied that you are a person of 'good character' for the purposes of the British Nationality Act 1981. Bearing in mind your activities in Colombo it is likely you provided intelligence that was used by TOSIS to plan attacks on civilians. Overall you made a substantial, voluntary contribution to the LTTE and would have been aware of the crimes and abuses committed by the group.
I am therefore refusing your application for nationality on the grounds of character."
The application for judicial review
The legislative framework
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
"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."
"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."
"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."
"Where an applicant has declared involvement in terrorist activity the file should be immediately forwarded to Group G, NSCT."
"Citizenship applications from people suspected of involvement in war crimes or crimes against humanity.
2.1 One of the requirements for naturalisation as a British citizen or a British overseas territories 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 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. Serious doubts will also be cast if 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 his/her seniority within that group.
8. Information relevant to war crimes or crimes against humanity
8.1 This information will usually consist of one or more of the following;
- Admission or allegation of involvement in any of the crimes which constitute a war crime or crime against humanity.
- Admission or allegation of involvement in groups known to have committed war crimes or crimes against humanity. Consideration of the significance of this information will depend on the relevance and detail of the information provided by the applicant as well the extent to which this information links the applicant with war crimes or crimes against humanity.
8.3 The information indicating war crimes or crimes against humanity may range from a brief claim to have been a member of a particular group or profession with no indication as to the length, dates, location or nature of these activities, to a detailed and time framed account including information about the applicant's activities, responsibilities and level of seniority within an organisation of interest.
8.4 Although an applicant will occasionally openly admit to having committed crimes which constitute war crimes or crimes against humanity, evidence which may indicate these crimes is much more likely to take the form of a claim of involvement in a particular group or profession which is known to have committed war crimes or crimes against humanity. In certain cases the applicant may deny, or may not have mentioned involvement in war crimes or crimes against humanity, however in these cases, the likelihood of an applicant having taken part in these crimes will often depend on factors such as the nature of the group itself, the degree to which the group has involved itself in war crimes or crimes against humanity and the nature of the involvement of the applicant.
8.5 Involvement includes activities where the applicant may not have had a direct involvement in war crimes or crimes against humanity but where his/her actions have contributed towards war crimes or crimes against humanity, such as, supplying help which the supplier knows is likely to contribute towards the committing of war crimes or crimes against humanity. This could include for instance providing transport to take prisoners to a site where they are going to be murdered.
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, war crimes or crimes against humanity committed by that group. In such cases consideration will be given to the length of membership and the degree to which the group employed war crimes or crimes against humanity to achieve its ends.
8.7 Occasionally there will be evidence on file of an allegation against the applicant of involvement in war crimes or crimes against humanity, for instance an allegation letter to UKBA from a third party or a claim from the applicant that he/she will face court action from the authorities for war crimes/crimes against humanity if returned to his own country."
"Article 25 Individual criminal responsibility.
1. The court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contributions shall be intentional and shall either:
(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or.
(ii) be made in the knowledge of the intention of the group to commit the crime.
Article 30 Mental element.
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) in relation to conduct, the person means to engage in the conduct;
(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.
3. For the purposes of this article, '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."
The judgment of the Administrative Court
(1) It was an abuse of power for the Secretary of State to rely on matters relating to the commission of war crimes in the context of an assessment of good character for the purposes of naturalisation when in the asylum proceedings she did not seek to rely upon the exclusion for the commission of war crimes under Article 1F.
(2) The decision of the Secretary of State was in conflict with her own published policy.
The second of these grounds had not been raised in the respondent's grounds for judicial review, but no point was taken on this.
"25. First, it seems to me that on a fair reading of the policy guidance as a whole, 'associated' with war crimes denotes something that engages personal responsibility for their commission. Not much may be required in the present context; furnishing material help or financial funds, knowing or believing that such help or funds will or will be likely to promote the commission of war crimes might well be sufficient. But in my view it is highly doubtful whether knowledge as such engages personal responsibility in the way put forward in the policy guidance. Perhaps if that guidance had made clear in explicit terms that knowledge would be sufficient, and had explained precisely how knowledge would justify a finding of bad character, or at least the absence of good character, the result would have been different, but it did not do so. Rather, on the contrary it strongly indicated that more was required to engage personal responsibility.
26. Secondly, although I accept [counsel for the Secretary of State's] submission that the exercise under Article 1F and the test for good character are different, there is in the present context - the commission of war crimes - a relatively firm connection between them. It leads to greater coherence, transparency, clarity and ultimately fairness if the concept of involvement in the commission of war crimes is reasonably aligned, even if not identical, in both contexts, or, if not so aligned, the basis for the difference is explained and justified, as I have already set out."
Accordingly, the judge quashed the decision of the Secretary of State rejecting the respondent's application for naturalisation.
The submissions of the parties on appeal
(1) The judge had impermissibly made the decision whether the appellant was of good character himself, rather than reviewing the decision of the Secretary of State.
(2) The judge had interpreted the guidance himself, whereas it was for the Secretary of State to interpret her own guidance, subject to the rationality of her interpretation.
(3) The judge had elided the test for exclusion of war criminals from the Refugee Convention with the test for the grant of citizenship, finding that association with war crimes was not a sufficient basis for denying citizenship in the absence of demonstrable personal responsibility for war crimes.
(4) The judge failed to have regard to the Secretary of State's reasons for refusing to grant citizenship, including in particular the Respondent's failure to disclose, when asked, that he had been a member of the LTTE.
(a) Was the Secretary of State precluded from relying on the respondent's conduct in Sri Lanka when considering his application for naturalisation?
" As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme."
" The principle that the decision of the tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the courts. In R (Mersin) v Home Secretary  EWHC Admin 348, Elias J said:
'In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the Applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr Catchpole [counsel for the Home Secretary] does not suggest that he can. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it. In my judgment, once the adjudicator had determined the application in the Applicant's favour, the Applicant had a right to be granted refugee status, at least unless and until there was a change in the position.'
 In R (Boafo) v Home Secretary  EWCA Civ 44,  1 WLR 44, Auld LJ said at 26 in a judgment with which the other members of the Court of Appeal agreed, '. . . an unappealed decision of an adjudicator is binding on the parties'. In R (Saribal) v Home Secretary  EWHC 1542 (Admin),  INLR 596, Moses J said:
'17 The decision in ex parte Boafo demonstrates an important principle at the heart of these proceedings. The Secretary of State is not entitled to disregard the determination of the IAT and refuse a Claimant's right to indefinite leave to remain as a refugee unless he can set aside that determination by appropriate procedure founded on appropriate evidence.'
 The judge described the attempt by the Secretary of State to raise the s 72 issue after the Immigration Judge's decision and to refuse leave to enter and to remain as an abuse of process. That is an expression normally reserved for abuses of the process of the courts. The Secretary of State's action might be castigated as an abuse of power, but I would prefer to avoid pejorative expressions of uncertain denotation and application and to hold simply that the Secretary of State was bound by the decision of the Immigration Judge and that her subsequent action was unlawful on the ground that it was inconsistent with that decision. It follows that the judge's conclusion was correct. The Home Secretary is bound to grant TB the leave to remain to which the Immigration Judge's decision entitled him."
"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.
"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.
47. Many of the claimants have been recognised as refugees. This is a recognition that they cannot avail themselves of their country of nationality, and have to avail themselves of the surrogate protection of the country of refuge. If they do not acquire another nationality they are de facto stateless. There is an obligation under the Refugee Convention for the state of refuge to facilitate assimilation and the grant of its nationality. Article 34 of the Geneva Convention Relating to the Status of Refugees provides:
'The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.'
48. The present policy of HM Government seems to be that in the absence of exceptional circumstances, stateless refugees with UK issued travel documents cannot seek diplomatic assistance from the UK Government. It would only be British nationality that would afford them a link to citizenship of the EU and ability to call on assistance from other member states as such.
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."
In the present case, there is no question of the revocation of the respondent's leave to remain by reason of his membership of the LTTE.
(b) Was the judge right to interpret the Nationality Instructions as he did?
(b) Did the matters relied upon by the Secretary of State justify her decision?
Lady Justice Hallett
Lord Justice Richards: