R (Thamby) v Secretary of State for the Home Department

Hearing date: 24/6/11

Mr Justice Sales:

Introduction

This is an application for judicial review of a decision of the Secretary of State for the Home Department refusing the Claimant's application for naturalisation as a British citizen, made under section 6 (1) of the British Nationality Act 1981 ("the 1981 Act"). The Claimant is a Tamil national of Sri Lanka, who came to the United Kingdom in about December 2000 and sought asylum here.

Section 6 (1) of the 1981 Act provides:

"(1) If, on 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."

Paragraph 1 (1) of Schedule 1 to the 1981 Act provides in relevant part as follows:

"1 (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;…"

The Secretary of State has refused the Claimant's application on the grounds that she is not satisfied that the Claimant is a person of good character. The basis for the decision relates to the Claimant's membership of and support for the Liberation Tigers of Tamil Eelam in Sri Lanka ("the LTTE").

The facts

The Claimant was born on 15 August 1960. He entered the United Kingdom illegally in about December 2000 and claimed asylum on 3 January 2001. In relation to his asylum claim, the Claimant, with the assistance of solicitors, filled in the asylum application self-completion form and attached a statement ("the Claimant's Statement") to provide information about his claim to the Secretary of State. He claimed to have suffered harassment or ill treatment both at the hands of the forces of the Sri Lankan government and at the hands of the LTTE, by reason of his membership of the LTTE.

In paragraphs 1 to 3 of the Statement, the Claimant said:

"1. I was a member of LTTE from its inception since 1983. I had vegetable shop in the village called "Kallady". When LTTE campaigning to achieve liberation for Tamil in early part of 1983, that at least a member of each family must taking part in their activities. At the time my family was contributing physically and financially for their activities.

2. One of my brothers Mr. Rajh was an armed trained LTTE member and he was killed in a battle against Vachanai police station attack on the 2 ^nd of March 1995.

3. In Batticola I had rice cultivation and I was running a vegetable and grocery shop. LTTE used to purchase food items from my shop and during the night only they came to my shop. My village was surrounded with Muslim population and majority the of them against LTTE and their activities.…"

The Statement went on to relate that he had been picked up by the police on suspicion of involvement with the LTTE; he had convinced them that he was not involved; he had then also fallen under suspicion with the LTTE of being an informer; his daughter had been taken under compulsion by the LTTE for military training; and he had then left Sri Lanka out of fear of both the Sri Lankan authorities and the LTTE.

The Claimant was interviewed about his asylum claim by the Home Office Immigration and Nationality Directorate (as it was then) on 6 February 2001. The interview was conducted in Tamil via an interpreter. The Claimant's answers to questions were recorded. In the interview the Claimant was questioned about, and expanded on, his written Statement. He answered a series of questions about his involvement with the LTTE as follows:

"Were you a member of the LTTE or a supporter?

I am a supporter, a helper. I was a member in 1983 and after my younger brother died in 1995 I left the LTTE.

What way did you help the LTTE?

I made financial contributions and supplied the food provisions from my shop.

When you were a member did you fight with the LTTE?

Yes.

Did you join them willingly and help them willingly?

On my own free will."

A little later in the interview, he gave this answer:

"If you were a member of the LTTE since 1983 why would the police suddenly arrest you after 17 years, in Aug. 2000?

They were not aware that I was helping and fighting with the [LTTE]."

The Claimant's claim for asylum was rejected by the Secretary of State in a decision letter dated 21 February 2001. He appealed; his appeal was allowed by Mr Such, an immigration adjudicator, in a decision promulgated on 15 October 2001. At the hearing of his appeal the Claimant gave evidence and again relied on the matters set out in his Statement and asylum interview. The Claimant was granted exceptional leave to remain on 11 January 2002. On 8 June 2007 he was granted indefinite leave to remain.

Since his arrival in the United Kingdom, the Claimant has been living quietly. He has found employment and made a life here. He has learned English to a good standard.

On 27 August 2008, the Claimant applied to be naturalised as a British citizen. The application was made by completing the relevant form ("Form AN"). Form AN makes it clear on its face that before completing it an applicant should read the accompanying guide ("Guide AN"). Guide AN emphasises that applicants must take care in completing the form and in making sure that they satisfy the requirements for naturalisation. The Guide also says:

"…applying for naturalisation is a straightforward process which does not require the use of specialist agencies. You should be capable of applying successfully by following the guidance provided in this guide and ensuring that you are able to satisfy the requirements.…"

The Claimant did, in fact, receive assistance from solicitors in completing his AN form. Section 3 of Guide AN deals with the good character requirement. For the purposes of considering the arguments in this case, the following parts of section 3 are relevant:

"To be of good character you should have shown respect for the rights and freedoms of the United Kingdom, observed its laws and fulfilled your duties and obligations as a resident of the United Kingdom. Checks will be carried out to ensure that the information you give is correct.

If you are not honest about the information you provide and you are naturalised on the basis of incorrect or fraudulent information you will be liable to have British citizenship taken away (deprivation) and be prosecuted. It is a criminal offence to make a false declaration knowing that it is untrue.…

You must give details of all criminal convictions both within or outside the United Kingdom.…

You do not have to give details of any offences which are "spent" under the Rehabilitation of Offenders Act 1974. Under that Act certain convictions may be regarded as "spent in the United Kingdom after certain periods of time from the date of conviction if you have not been convicted of other offences during that time. "Spent" means that it will be ignored. A leaflet about this called "Wiping the Slate Clean" is available from the Home Office, Direct Communications Unit,….

Criminal record checks will be carried out in all cases. If you have a conviction which is not yet "spent" under the Rehabilitation of Offenders Act 1974, an application for citizenship made now is unlikely to be successful. We would therefore advise you to wait until the end of the rehabilitation period before making an application.

We will normally disregard a single conviction for a minor offence resulting in a bind over, conditional discharge or relatively small fine or compensation order, if a person is suitable for citizenship in all other respects.…

What if you haven't been convicted but your character may be in doubt?

[AN Form, question numbers] 3.7 – 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 this 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 that 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.

For the purpose of answering questions 3.8 to 3.11 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...