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

For naturalisation, “good character” is an evaluative requirement. The Secretary of State may adopt a high standard and may treat sustained support for an organisation whose mode of operation materially involves war crimes or crimes against humanity as raising serious doubts, even without proof of personal participation.

Past conduct may continue to affect the assessment of present character. However, fairness requires a reasonable opportunity to address adverse matters. General warnings may suffice where they fairly identify the concern; otherwise specific notice and an opportunity for written representations are required. An interview is generally unnecessary except in exceptional cases. A finding of deliberate deception requires notice of the concern and an opportunity to explain.

The claimant, a Sri Lankan Tamil, sought judicial review of the Secretary of State’s refusal of his application for naturalisation under section 6(1) of the British Nationality Act 1981. The refusal relied on two discrete grounds: his historic membership of and support for the LTTE, an organisation said to have committed war crimes and crimes against humanity; and his failure to disclose that involvement in Form AN.

The claimant argued that the Secretary of State had failed to follow her policy, had assessed only historic rather than current character, had wrongly treated his answers as deceptive, and had acted unfairly by failing to give him notice of the concerns or an opportunity to respond.

1. The claim succeeded. The Secretary of State’s decision was quashed, and the claimant was to be given an opportunity to address the concerns about his good character by written representations.
2. Under section 6(1) of the British Nationality Act 1981, the requirement in paragraph 1(1)(b) of Schedule 1 that the applicant be of good character is evaluative. The court’s role is to ask whether the standard adopted and its application were ones that could reasonably be adopted. The Secretary of State may rationally adopt a high standard.
3. The War Crimes Guidance permitted consideration of support for a group whose main purpose or mode of operation consisted in committing war crimes or crimes against humanity. Direct personal participation, or a direct link between assistance and a particular crime, was unnecessary. The relevant question was whether the applicant’s level and nature of support, with awareness of the group’s methods, raised serious doubts about commitment to British societal values.
4. The Secretary of State was entitled to consider the claimant’s long membership, voluntary fighting, and subsequent material support. Historic conduct could continue to raise serious doubts about present character, and there was no statutory equivalent to the spent-conviction regime governing the treatment of past involvement in war crimes.
5. Fairness, applying R v Secretary of State for the Home Department, ex p. Fayed [1998] 1 WLR 763, required a reasonable opportunity to deal with adverse matters. Form AN and Guide AN did not fairly warn the claimant of the extended concept of involvement in war crimes used by the Secretary of State. The claimant therefore had no adequate opportunity to address that issue.
6. The answer to question 3.10 was materially inaccurate because the claimant knew of his membership and support for the LTTE and should have disclosed matters which others might regard as terrorism. But the Secretary of State could not fairly infer a deliberate attempt to deceive without first identifying that concern and inviting written representations. An interview was not generally required.