This judicial review case – Thamby, R (on the application of) v Secretary of State for the Home Department  EWHC 1763 read judgment here – concerned the SSHD’s refusal to naturalise as a citizen a Tamil national of Sri Lanka who was present and settled in the UK. The SSHD refused Mr Thamby’s application for naturalisation as a British citizen because of her view that the British Nationality Act 1981 (“the Act”) required that a person should be of “good character” (in order for their naturalisation application to be successful).
Although the Act itself is silent on defining good character, it was the SSHD’s case that Mr Thamby’s membership of a proscribed organisation such as the Liberation Tigers of Tamil Eelam (LTTE) required his exclusion from naturalisation as a British citizen. (This being so despite the LTTE’s comprehensive annihilation by the Colombo regime which stampeded the rules of war and slaughtered an untold number of innocent people; the SSHD’s decision, however, predated the final onslaught of the Sri Lankan military and the LTTE’s concomitant defeat in May 2009.)
Since an appeal of the SSHD’s decision in connection to nationality was unavailable, Mr Thamby’s only option was to bring judicial review proceedings against the SSHD in the High Court. Mr Justice Sales heard the case.
Mr Thamby entered the UK unlawfully in the December 2000 and subsequently claimed asylum in January 2001. Apart from cultivating rice and selling vegetables to earn their livelihood, Mr Thamby and his family physically and financially supported the LTTE; his brother died in a LTTE raid on a police station and his daughter was forcibly recruited by the LTTE. Moreover, to complicate things further, the Tigers also suspected Mr Thamby of being an informer. This precarious situation led him to flee Sri Lanka and in his asylum interview he admitted to volunteering for the LTTE of his “free will”. Although Mr Thamby’s asylum claim was refused he was nevertheless granted exceptional leave to remain which he later converted into indefinite leave to remain.
Having lived a discrete life in the UK, Mr Thamby applied for naturalisation with the aid of his solicitors and his application for naturalisation as a British citizen was refused by the SSHD on 15 January 2009 on the basis that from 1983 to 1995 he had been a military member of the LTTE. For the SSHD the LTTE was a proscribed terrorist organisation which had committed war crimes, crimes against humanity, torture, beheadings; the point was made that the LTTE used child soldiers and suicide bombers – the assassination of Indian Prime Minister Rajiv Gandhi in 1991 was also cited as a reason for refusal. Moreover, Mr Thamby’s ideological support for the LTTE between 1995 and 2001 was relied upon as a further reason for refusal.
The Tamil Welfare Association (Newham) became involved in Mr Thamby’s naturalisation application and it wrote to the SSHD arguing that numerous Tamils, with lives similar to Mr Thamby, had been naturalised as British citizens and the LTTE, in any event, had not been proscribed as a “terrorist organisation” until 2006. The Association’s correspondence made the point that the SSHD’s refusal of naturalisation was wrong in law and also irrational. Moreover, the correspondence also made the point that not only had the SSHD failed to consider Mr Thamby’s present character, the allegations of providing incorrect information on naturalisation Form AN ought to be accompanied by an interviewing process by virtue of which the applicant can clarify their case to the SSHD. The Association also stated that the SSHD’s assumption that Mr Thamby was aware of the atrocities committed by the LTTE failed to match his exact role in the LTTE and the assumption also failed to appreciate that in Tamil majority areas such as Batticola where Mr Thamby hailed from, the LTTE’s own propaganda would underscore the organisation’s ethical correctness.
To all this the SSHD’s response, on 13 March 2009, was that naturalisation and good character for the purposes of the Act involved Mr Thamby’s activities outside the UK: since Mr Thamby’s activities contradicted the Nationality Instructions in relation to war crimes, crimes against humanity and genocide, the SSHD had no choice but to refuse his application. The SSHD reiterated that the LTTE admitted to being a terrorist organisation whose macabre works were well documented; she added that the fact that the Sri Lankan government was committing war crimes did not absolve the LTTE of their terrorist campaigns.
Following the March 2009 refusal Mr Thamby lodged judicial review proceedings.
Mr Jafferji (counsel for Mr Thamby) and Ms Lambert (counsel for the SSHD) agreed that the refusals of 15 January and 13 March 2009 constituted two separate decisions.
Since the Act does not define “good character”, Guide AN and Annex D of Chapter 18 of the Nationality Instructions for naturalisation issued by the SSHD to caseworkers set out the framework for defining good character. From the instructions it is plain that any connection to war crimes and crimes against humanity will preclude a person’s application for naturalisation as their character will automatically be bad.
The crux of Annex D’s substance is that anything even remotely redolent of war crimes, crimes against humanity, genocide, criminality, fraud, deception and misrepresentation will lead to an application being refused. The relevant sections of Annex D also set out that where there are mitigating circumstances an application for naturalisation will be considered in light of the defences which an applicant might have under international criminal law.
Moreover, the guidance also sets out that in instances where there is ambiguity as to the precise nature of an applicant’s role in such crimes or where the applicant has been evasive in disclosing the said crimes, caseworkers should seek further information from the applicant via written questions or an interview; yet the guidance discourages caseworkers from eliciting further information by using the opportunity as a “fishing trip”.
The Grounds and the Court’s Reasoning
In bringing judicial review proceedings Mr Thamby relied on four grounds which considered the SSHD’s decision as being flawed:
(i) Failure to follow policy – that the SSHD failed to consider Mr Thamby’s individual case and his mitigating circumstances which amounted to her not complying her own policy;
- On this point Sales J ruled that given the extent and nature of Mr Thamby’s support of the LTTE, the SSHD had a natural entitlement to doubt his good character as it did not resonate with “British values” for the purposes of the Act (see at paragraph 50).
(ii) Assessment of current good character – that the SSHD only considered Mr Thamby’s character while he was in Sri Lanka; this approach subsumed his activities after arriving in the UK and neglected his current character;
- On this point Sales J found that since Mr Thamby had not disavowed his connections to the LTTE his current character remained connected to his past and again the SSHD was “rationally entitled to focus on what he had done to support the LTTE over a very long period of time in Sri Lanka” (see at paragraph 51).
(iii) There were no misrepresentations on the naturalisation form – that Mr Thamby was a person of good character who was not connected to terrorism, war crimes, crimes against humanity and had therefore answered the questions on the naturalisation form correctly;
- Sales J appraised the questions set out in the application form AN and he concluded that the SSHD was entitled to consider events such as the assassination of Rajiv Gandhi as an act of terrorism; the judge linked Mr Thamby’s claim that an “honest mistake” was made when answering question 3.10 on Form AN to the fact that Mr Thamby was granted ILR while the SSHD specifically knew of his LTTE connections. Equally, since Mr Jafferji (for Mr Thamby) and Ms Lambert (for the SSHD) agreed “that an applicant’s good character for the purposes of the 1981 Act would only be brought into question in relation to inaccurate statements on the application form if those misstatements were deliberately untruthful”, Sales J connected the questions on deception and misrepresentation to the question of fairness (set out below).
(iv) The decision making process was unfair – Mr Thamby raised the point that he had not mislead the SSHD about his character and that he was not provided a fair opportunity to address the concerns which he had raised; he also complained that the SSHD neither wrote to him regarding her concerns prior to taking a decision, nor did she allow him an opportunity to defend himself in an interview;
- At paragraph 69 Sales J explained that although Mr Thamby had an idea of the SSHD’s position on involvement in war crimes, he did not find that Form and Guide AN fairly warned the applicant (“about the extended notion of involvement in war crimes etc that the Secretary of State was proposing to employ”). Hence, for Sales J, Mr Thamby’s exclusion from making representations in his defence could not have been right.
- At paragraph 70 Sales J rejected the SSHD’s submission (via Ms Lambert) that in the period between 15 January 2009 and 13 March 2009 Mr Thamby was provided a reasonable opportunity to respond to the SSHD’s concerns about his LTTE connections because:
it was only in the 19 March 2009 letter that the Secretary of State set out the relevant passage from paragraph 2.1 of the War Crimes Guidance (and gave the Claimant details where that Guidance could be found), which explained the wide concept of involvement in war crimes etc which she had used to determine the Claimant’s application. He had no fair opportunity in advance of receiving the second decision letter to address the Secretary of State about the application of that wide concept to the individual facts of his case.” (At paragraph 71.)
- Moreover, Sales J also found that although Mr Thamby’s answers on Form AN were misrepresentative, the SSHD could not rightly conclude that these were “deliberate” as the SSHD had not provided Mr Thamby a reasonable opportunity to allay her fears to the contrary:
To find that there has been a deliberate attempt to deceive by giving a particular answer is a very strong conclusion (which may also affect future renewed applications for naturalisation), and there may be possible explanations how a mistake might have been made. There might also be scope for relevant points to be made in mitigation. I consider that where the Secretary of State considers there is material which might support a conclusion that there has been a deliberate attempt to deceive her, she should draw that material and her concerns to the attention of the applicant and give him an opportunity to make written representations to address her about them.” (At paragraph 72.)
- Therefore, Sales J concluded that Mr Thamby was not provided a reasonable opportunity to address his concerns about the second decision letter on 13 March 2009 and the first decision letter of 15 January 2009 failed to “distinctly identify the Claimant’s answer to question 3.10 as an answer which the Secretary of State was concerned may have been deliberately false” and Mr Thamby was “therefore not given a reasonable opportunity to deal with that concern.” (At paragraph 73.)
Accordingly, the Court quashed the SSHD’s decision and afforded Mr Thamby an opportunity to make representations in relation to his good character and address the issues which were raised by the Home Department in relation to his application for naturalisation.
It would be fair to say that rather than drawing inferences about war crimes by digging up people’s past the UK should focus on who the real war criminals in Sri Lanka really are. And it would also have been nice if the UK Border Agency had complied with the law and not disclosed Sri Lankan deportees’ asylum claims to the Sri Lankan High Commission.
Sri Lanka’s government is definitely guilty of committing crimes against humanity and war crimes and the video below says it all really; deliberately and repeatedly shelling a hospital in a humanitarian corridor! Probably more desirable to live in Kabul (even as a woman) after ISAF departs now that Osama has been killed and the folks in the west are happy.