Secretary of State for the Home Department v SK (Sri Lanka)

An asylum determination does not bind the Secretary of State when later deciding an application for naturalisation. The two regimes confer different rights and apply different tests.

An applicant must satisfy the Secretary of State that the statutory good character requirement is met. The Secretary of State may refuse naturalisation where she has good reason not to be satisfied. She need not prove personal responsibility for a war crime. Active association with an organisation responsible for war crimes or terrorism may suffice, particularly where the applicant’s role, knowledge and activities create serious doubts about character. Materially untrue answers on the naturalisation form may provide an additional reason for refusal.

The respondent, a Sri Lankan citizen and former active member of the LTTE, obtained asylum and indefinite leave to remain after an adjudicator found that he would face ill-treatment on return. The Secretary of State had not invoked the exclusion in article 1F of the Refugee Convention during those proceedings.

The respondent later applied for naturalisation. He denied involvement with war crimes and terrorism and denied membership of an organisation concerned in terrorism. The Secretary of State refused the application because of his substantial LTTE involvement, his association with battles followed by the murder of prisoners of war, and his failure to disclose the relevant matters.

Kenneth Parker J quashed that decision. He held that the Nationality Instructions required conduct engaging personal responsibility for war crimes and favoured alignment between the asylum and naturalisation standards. The central issues on appeal were whether the asylum determination constrained the later naturalisation decision, whether the judge had correctly interpreted the Instructions, and whether the Secretary of State had sufficient reasons for not being satisfied that the respondent was of good character.

1. Appeal allowed. Stanley Burnton LJ, with whom Hallett and Richards LJJ agreed, held that the Secretary of State was entitled not to be satisfied that the respondent was of good character. The order quashing her decision was set aside and the judicial review claim was dismissed.

2. The principle that an unappealed immigration determination binds the parties did not prevent the Secretary of State from considering the respondent’s conduct when deciding naturalisation. She had implemented the adjudicator’s asylum determination by granting indefinite leave to remain. Naturalisation had not been before the adjudicator and the grant of asylum carried no obligation to grant citizenship. Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 and the authorities discussed there were distinguished.

3. The legal inquiries were materially different. Under article 1F of the Refugee Convention, the Secretary of State bore the burden of showing serious reasons for considering that the person had committed a relevant crime. JS v Secretary of State for the Home Department [2010] UKSC 15 required reasons pointing to voluntary and significant personal contribution, with the necessary awareness, to an organisation’s pursuit of war crimes. For naturalisation under section 6(1) and paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981, the applicant had to satisfy the Secretary of State that he was of good character. If she had good reason not to be satisfied, she was bound to refuse.

4. The judge therefore erred by assimilating good character to personal criminal responsibility for a war crime. The Nationality Instructions bore their plain and ordinary meaning. They permitted serious doubts to arise from association with war crimes and from membership of a group responsible for such crimes, assessed by matters including the applicant’s role, length of membership and seniority. The Instructions could not require the Secretary of State to accept an applicant as being of good character where that conclusion was not sensible, because the statutory requirement could not be waived.

5. The respondent had twice participated in battles after which the LTTE murdered prisoners of war and had been actively involved in an organisation responsible for terrorism. Those matters supplied sufficient reason for the Secretary of State’s conclusion and her decision accorded with the Instructions.

6. The respondent’s denial that he had belonged to an organisation concerned in terrorism was untrue. The Secretary of State could additionally treat that answer as a reason not to be satisfied as to good character. The court left open whether the false answer, standing alone, could have justified refusal without first giving the applicant an opportunity to explain it.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The quashing order was set aside and the claim for judicial review was dismissed: [2012] EWCA Civ 16.

2. Administrative Court: Kenneth Parker J quashed the Secretary of State’s refusal of naturalisation, holding that the decision conflicted with the Nationality Instructions. No citation for that judgment is stated.