OM, R (On the Application Of) v Secretary of State for the Home Office

Naturalisation is discretionary. The applicant bears the burden of satisfying the Secretary of State that he is of good character. The Secretary of State may adopt a high standard, provided the decision is rational and lawful.

In judicial review proceedings, the issue is whether there was good reason for the Secretary of State not to be satisfied that the applicant was of good character. The court must not substitute its own assessment of the evidence. Involvement in or association with war crimes or crimes against humanity need not amount to criminal responsibility or satisfy the exclusion test under the Refugee Convention. A rational factual link between the applicant’s activities and such crimes may suffice.

The claimant challenged the Secretary of State’s refusal, on good-character grounds, of his application for naturalisation under the British Nationality Act 1981. He had served for many years in the Serbian police and intelligence services in Kosovo before joining the Kosovo Police Service.

The Secretary of State concluded that his intelligence work had supported a Serbian regime responsible for widespread human-rights abuses and crimes against humanity, and that serious doubts remained about his character. The claimant argued that the decision rested on unsupported findings of criminal involvement, failed to account for his later conduct and evidence, and was irrational and unfair.

1. Claim dismissed. The proceedings were a judicial review and not an appeal on the merits. The question was whether the Secretary of State had good reason not to be satisfied that the claimant was of good character. Intervention was limited to error of law, irrationality or Wednesbury unreasonableness, and procedural unfairness (paras [61]-[64]).
2. There is no right to citizenship. Under section 6(1) and paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981, the applicant must satisfy the Secretary of State that he is of good character. The Act contains no definition of good character, and the Secretary of State may adopt a high standard, subject to rationality (paras [8]-[10], [62]).
3. The Secretary of State was not required to establish personal criminal responsibility, aiding and abetting, or a joint criminal conspiracy under international law. The relevant question was whether there was involvement in or association with crimes against humanity in the wider nationality-law sense. A factual link between the applicant’s activities and such crimes could suffice, without establishing criminal responsibility (paras [64]-[65]).
4. The Secretary of State was entitled to rely on the claimant’s earlier asylum evidence, his senior role, the surrounding country material and the conclusion that his intelligence activities facilitated targeted killings and other abuses. She was not required to accept later explanations, resolve every inconsistency in the claimant’s evidence, or treat the evidence of Mr Bolton as determinative. Disagreement with the weight given to evidence did not establish irrationality (paras [66]-[72]).
5. The challenge to the policy’s serious-doubt approach and to the evidential basis of the decision failed. The claimant’s long service for an intelligence organisation integral to the Serbian regime’s abuses provided a rational basis for serious doubts about good character. The claim was dismissed (paras [73]-[74]).