The Secretary of State for the Home Department v SK (Sri Lanka)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lady Justice Hallett,Lord Justice Richards |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] EWCA Civ 16 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2011/0091 |
| Date | 19 January 2012 |
[2012] EWCA Civ 16
Lord Justice Richards
Lady Justice Hallett
and
Lord Justice Stanley Burnton
Case No: C4/2011/0091
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Kenneth Parker
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC (instructed by the Treasury Solicitor) for the Appellant
Shivani Jegarajah and Charlotte Bayati (instructed by Birnberg Pierce & Partners) for the Respondent
Introduction
This is the Home Secretary's appeal against the order of Kenneth Parker J of 17 December 2010 quashing her decision dated 17 December 2008 refusing to grant the respondent citizenship on the ground that she was not satisfied that he was of good character as required by paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981 as amended.
The facts
SK is a citizen of Sri Lanka. Between 1990 and 1996 he was an active member of the LTTE, the Tamil Tigers. In 1991 the LTTE was held responsible for the murder of Rajiv Ghandi. In 1993 the Respondent participated in an assault on Pooneryn, which resulted in the murder of prisoners of war. In 1996 he participated in an assault on Mullaitivu (which also resulted in the murder of prisoners of war). He came to this country in June 2003 and claimed asylum.
In 2001 the LTTE was proscribed under the Terrorism Act 2000 as a terrorist organisation.
In June 2003, the Secretary of State refused the respondent's claim for asylum. Parenthetically, at this time there was a cease fire between the LTTE and the Government forces.
The respondent appealed to the Immigration Appellate Authority. In the determination promulgated on 28 August 2003, the Adjudicator accepted that the respondent had been an active member of the LTTE. On the basis of his assertions that he had been an active and "more than ordinary" member of the LTTE, the Adjudicator found that he would face a risk of ill treatment on return and allowed his appeal. The Secretary of State did not contend that the respondent was excluded from asylum under paragraph F of Article 1 of the Refugee Convention. In consequence of the Adjudicator's decision, on 9 March 2004 the Secretary of State granted the respondent indefinite leave to remain. He has since then lived in this country.
In July 2008, the respondent applied for naturalisation. The second page of the application form (Form AN) stated:
"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."
In addition, the Home Office publishes Booklet AN, entitled "Naturalisation Booklet, the Requirements", stated "To be read in conjunction with Guide AN". The good character requirement is the subject of section 9, which includes the following paragraphs:
"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:
"War Crimes
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"
Section 3 of the application form was headed "Good Character Requirement" and stated:
"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."
The form required the respondent to answer the following questions (among others):
".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.
At paragraph 6.1 of his application form, the respondent declared that "to the best of my knowledge and belief, the information given in this application is correct. I know of no reason why I should not be granted British citizenship. …" Paragraph 6.2 stated: "Please sign below once you are satisfied that you have completed the form correctly." The respondent signed the form and dated it 9 July 2008.
In her decision letter dated 17 December 2008, the Secretary of State gave two reasons for refusing the respondent's application for nationality on the grounds of character, namely his membership of the LTTE and his failure to disclose it in his application form. The Secretary of State's conclusion was as follows:
"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...
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