The King on the application of Kanja Sandy v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 27 March 2023 |
| Neutral Citation | [2023] EWHC 640 (Admin) |
| Docket Number | Case No: CO/1813/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 640 (Admin)
The Honourable Mr Justice Mostyn
Case No: CO/1813/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Arfan Khan (instructed by Graceland Solicitors) for the Claimant
Katherine Apps (instructed by the Government Legal Department) for the Defendant
Hearing date: 15 March 2023
Approved Judgment
The claimant was born in February 1972 in Sierra Leone. In 1990 a civil war erupted in that country. It continued for eleven years, ending in 2001. It is said that as many as 200,000 people perished during the fighting.
The claimant aligned himself with Johnny Paul Koroma who seized power in a coup in 1997. He acted as his aide-de-camp. He was then aged 25. He participated in combat operations, describing himself in his initial asylum application as “main commando qualified military personnel” and as a “freedom fighter” in his statement of facts and grounds in this (and in his earlier) judicial review claim. He was one of the top military trainers in the country and hundreds of personnel were trained under his tutelage. The conduct of the Koroma regime was abysmal and, as is well-known, its personnel committed numerous atrocities amounting to war crimes. The claimant was at the heart of the regime at a time when these abominations were perpetrated. Koroma himself was indicted by the Special Court for Sierra Leone, but died before he could face justice.
With the ever-changing, shifting alliances, the Koroma government fell, and the claimant was treated with hostility and suspicion by the incoming regime. He was imprisoned and tortured. He received death threats and there was an actual assassination attempt, a grenade exploding at his feet which miraculously did not kill him.
In 2001 the claimant left Sierra Leone and made his way to this country via Liberia, Guinea and France. He travelled to this country on Eurostar using a fake French passport and on arrival at Folkestone claimed asylum. In his statement in support, and in his interview with Home Office officials he emphasised his martial history, in order to develop a case that as a soldier for the defeated side he was at special risk of reprisal at the hands of the new regime. There is a laconic comment in his statement (which he did not repeat in his interview) that he was taken from Kailahun (where he had been locked up by the infamous Sam Bockarie (widely known as “Mosquito”) for failing to loot the banks there) to Liberia with a “do or die” option to train rebels in Vahun. That aside, he did not suggest in his statement or in his interview that his martial conduct was the product of duress, let alone that he was acting in self-defence. He did not say that in his combat experiences he was an unwilling participant acting under the orders of a superior. On the contrary, his voluntary embrace of martial service to the former regime was relied on by him in order to demonstrate that there was a reasonable likelihood that he would face persecution if he were to be made to return to Sierra Leone. That argument succeeded and he was granted asylum on that very basis on 13 November 2001.
In due course the grant of asylum was superseded by the grant of indefinite leave to remain (“ILR”) in 2011. Under that grant the claimant is entitled to reside in this country, and to work, receive benefits, and to contribute to a state pension. Moreover, he can travel using his ILR card and over the years has travelled extensively to Europe, Australia and the USA. So far as I can tell the only disadvantage compared to being a citizen is that in relation to foreign travel he needs a visa for almost every country, whereas with a British passport the holder can travel to many places without a visa.
There is no doubt that since his arrival here 23 years ago the claimant has conducted himself irreproachably.
He is married with children. He works as a nurse in an NHS hospital.
The claimant first applied for naturalisation in 2011. He was interviewed on 7 December 2010 and this initial application for naturalisation was rejected on 27 January 2011 on the ground that the Secretary of State could not be satisfied that he met the requirement of good character. He was however granted ILR.
The claimant made a second application for naturalisation in 2019. He adduced good character references relating to his work as a nurse in the NHS. The reference from the interim director of nursing dated 14 January 2019 stated:
“I have always found Mr Sandy to be honest, hardworking and a diligent worker. He cares greatly about the staff and patients in this organisation and I have frequently seen him going the extra mile to provide care and attention to both. He takes his work very seriously and his attendance and reliability are excellent. He has always demonstrated thoughtful kindness and compassion towards patients and families in his care.”
Although the application form requires an applicant to disclose details of any involvement in war crimes, genocide, crimes against humanity or terrorism, the claimant was completely silent about his conduct in the civil war in Sierra Leone.
The claimant's second application was refused on 14 April 2021 on the basis that sufficient evidence had not been provided to satisfy the requirement of good character. The Guidance on good character states that it must be:
“clear that if after a full consideration of a person's ability to meet the good character requirement taking into account both adverse and positive factors, if serious doubts remain, a certification of naturalisation should not be issued.”
I deal with this Guidance in some detail below.
The claimant brought judicial review proceedings on 1 July 2021 to challenge the decision of 14 April 2021. Permission was granted by HHJ Lickley QC on 13 December 2021 on the basis that there was a failure to provide the claimant with an opportunity to address those matters which caused the defendant to conclude that he was not of good character. The proceedings were shortly thereafter withdrawn by consent and a consent order was approved on 10 January 2022 which directed the claimant to submit further evidence of good character and for the defendant to reconsider her decision and to make a new decision.
On 8 April 2022, the defendant again refused the claimant's application for naturalisation. This is the impugned decision. It states as follows:
“Your client is considered to have been a long-term member of the Sierra Leone Army and later the AFRC. His actions will have contributed to the overall purposes of the organisations. In determining this, I have considered factors such as his role in the AFRC, his profile within the group and the length of his membership and association with Koroma.
[…]
On the basis of this and the information he has provided during the course of the interaction with the Home Office, it is concluded that your client aided the commission of war crimes. Further, he is considered responsible for aiding the war crime of intentionally directing attacks against personnel involved in a peacekeeping mission as per Article 8 of the Rome Statute of the International Criminal Court.
Guinea was increasingly embroiled in the wars in Liberia and Sierra Leone. Guinea's refugee camps and border villages were attacked, and the population submitted to murders, rapes, looting and destruction of property by the Revolutionary United Front (RUF). Such attacks were war crimes, and it is therefore believed your client indirectly aided these war crimes by his involvement in training troops who committed international war crimes.
[…]
In establishing whether there are grounds to refuse an application, we consider evidence directly linking the applicant to such activities, such as the likelihood of their membership of and activities for groups responsible for committing such crimes. The individual role of the applicant, length of their membership and level of seniority are also relevant.
[…]
I have looked at the positive aspects of your life since arriving in the UK as well as the information he himself provided during his asylum process about his life and circumstances in Sierra Leone.
There are no doubts your client's actions in Sierra Leone benefited the AFRC directly or indirectly. It is an organisation known to have committed abuses and international crimes whilst he was with them. His profile was significant, as the Aide De Camp to the then President.
I have been unable to establish compelling evidence to show strong countervailing factors in your client's personal circumstances and conduct since entering the United Kingdom that could outweigh the assistance and support, he gave to the AFRC and J P Koroma. It is noted that Koroma, was indicted by the Special Court for Sierra Leone on March 7 2002, he was wanted for war crimes and crimes against humanity and other serious violations of international humanitarian law prior to his death.
I have reviewed the consideration given to your client's application and the decision made on it. I am satisfied that there are no grounds to overturn the previous decision to refuse on the basis your client was unable to meet the statutory requirement to be of good character. The decision to refuse the application is therefore maintained.”
This judicial review claim was issued on 23 May 2022. Permission was refused on the papers by David Pittaway QC on 16 August 2022. A renewal hearing then took place on 20 October 2022 before Mr Simon Tinkler. The court granted permission on renewed ground 1 and refused permission on renewed ground 2. Renewed ground 1 states:
“The decision maker erred in law in that the decision maker did not consider the...
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