England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/02/2015

Mrs Justice McGowan :

1. This is a renewed application for permission to challenge the decision of the Secretary of State for the Home Department, ("SSHD"), of 29 July 2014. She refused the claimant's application for naturalisation on the grounds that she was not satisfied that he was of "good character" under the terms of the British Nationality Act 1981. Permission was refused by Blake J on a consideration of the papers on 20 November 2014. A previous challenge had been withdrawn by consent on 16 May 2014 on the Defendant's agreement to reconsider the application, that reconsideration led to the decision of 29 July 2014 now under challenge.
2. The Claimant is a Sri Lankan national who currently has indefinite leave to remain in the UK, granted on 17 August 2010. He lives here with his wife and children. The SSHD's failure to be satisfied of the Claimant's necessary "good character" was based on his admitted association with the Liberation Tigers of Tamil Eelam, ("LTTE").

Argument

3. The claim is founded on a number of grounds:

i) That the Claimant had a legitimate expectation that he would be interviewed and there is therefore procedural unfairness,

ii) That the finding that he could not satisfy the "good character" test would apply to any applicant for the same geographical area of Sri Lanka and is therefore unlawful as it is discriminatory,

iii) The decision is irrational on the facts of the case and therefore unlawful,

iv) The decision is unlawful as it is inconsistent with the statutory duty imposed by s.55 of the Borders, Citizenship and Immigration Act 2009 and is not in the best interests of the Claimant's children,

v) The decision is in breach of Articles 6 and 13 of the ECHR as there is no appeal on the facts.

4. The Defendant contends,

i) That the Claimant knew the process by which his application would be considered and that he had ample and sufficient opportunity to make submissions, and in any event he was interviewed as part of his original asylum claim,

ii) That her decision was not discriminatory as in that interview the Claimant had accepted that he had played an active role in supporting and assisting the LTTE, albeit under coercion, and that her decision was not simply based on his geographical location. She further submits that any claim of acting under duress was "vague and insubstantial",

iii) That the support provided by the Claimant for the LTTE demonstrates his not being of good character and refutes the assertion that her decision was unlawful by virtue of being irrational,

iv) That the Claimant has indefinite leave to remain and can continue to live with his children in the UK and her decision can not therefore be said to be contrary to the best interest of the children,

v) That the Claimant has adequate rights of challenge to her decision by way of Judicial Review and in any event he has no civil right to the determination of his citizenship for the purposes of engaging Article 6 ECHR.

Discussion

5. The statutory duty on the SSHD is imposed by s. 6(1) of the British Nationality Act 1981;

"6 Acquisition by naturalisation.

(1)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."

6. In order to fulfill the requirements of Schedule 1 the applicant must be of "good character". The term is not defined but policy guidance is provided, and in particular in cases where there is suspected or admitted involvement in war crimes or crimes against humanity. Annex D, paragraph 5.1 of the Nationality Instructions sets out that applications "should be refused if their activities cast serious doubt on their character". The material supporting such involvement can come from a number of sources but in particular can come from an applicant's own admission of involvement.
7. There is, as in all such cases statutory provision concerning regard that must be had to the interests of any children concerned set out in s. 55 of Borders, Citizenship and Immigration Act 2009,

"55 Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection

(2) are provided having regard to that need.

Discussion

8. The real point in issue in this application is whether the admitted extent of the Claimant's involvement in providing assistance and support to the LTTE is sufficient to "cast serious doubt" on his character such as to justify the Defendant's finding that he did not satisfy the good character requirement and therefore she was entitled to refuse to grant naturalisation.
9. The Claimant was interviewed on 1 December 2000 as part of his asylum claim. He was represented by solicitors in that interview. He admitted assisting the activities of the LTTE, he said he was working for LTTE, as a helper not a member, in the intelligence section whilst he was a Government employee. He provided information to them about shipments of Government ammunition through the port at Jaffna. He said he had been asked three times and agreed to help, he described these requests as harassment. They carried arms and would do anything. There was a high risk of being taken and disappearing. He said that this job would give him protection. He further admitted that he had previously worked for the LTTE in the students' group by collecting blood donors, acting as a steward at their meetings and delivering food. Further he had provided training and assisted by driving for them. He said he supported "their cause, fighting for the Tamils".
10. There can be no doubt that the SSHD considered the contents of this interview. Given that she had this material and all the other submissions made on the Claimant's behalf it was not unreasonable of her not to offer a further interview. Further it is clear that she was entitled to find that the Claimant's admitted support for the LTTE and their cause, even in the circumstances described by him as harassment, was sufficient to "cast serious doubt" on his good character. Accordingly her consideration of his individual circumstances cannot be characterised as either discriminatory or irrational.
11. The Claimant has indefinite leave to remain in the UK, he can travel anywhere, except Sri Lanka. There is absolutely nothing in the SSHD's decision that could be said to be detrimental to the promotion and safeguarding of the welfare of his children.
12. The task of the SSHD in considering this application involves the proper exercise of her discretion. An irrational or unlawful exercise of discretion is the subject of Judicial Review. That is the Claimant's remedy. In any event there is no civil right engaged by the determination of this application such as to engage Article 6 ECHR.

Conclusion

13. For the above reasons permission is refused.