24 Oct 2016, 08 mins ago

A recent Judicial Review heard before the High Court of Justice raises important considerations about the good character requirements for naturalisation, specifically in the context of evidence provided in earlier asylum applications.

This is the case of OM, R (On the Application Of) v Secretary of State for the Home Office [2016] EWHC 1588 (Admin) (see here: which concerned a judicial review brought by a refugee against the Secretary of State’s refusal of his application to naturalise as a British citizen.

The Secretary of State (SSHD) refused the Claimant’s naturalisation application on the ground that he did not satisfy the good character requirement provided by Section 6 of the British Nationality Act 1981 (‘the Act’), arising from his previous employment as an intelligence officer in the Serbian Security Services in Kosovo. The issue relevant to the Claimant’s good character was related to his involvement, support and role in war crimes or crimes against humanity.

The Claimant was born in Serbia and is ethnically ‘Kosovo Albanian’. He moved to Kosovo with his family in 1980. He was a police officer with the Serbian police force, working in a senior position in the force’s intelligence services. It was accepted and formed part of his application for asylum that he was responsible for undertaking electronic surveillance through intercepting, recording and translating calls and passing that information to other officers. That information was then used to facilitate assassinations by the intelligence services or other Serbian state bodies of ethnic Albanians as part of a ‘systematic campaign by the Milosevic regime to eradicate any move to Kosovan independence’.

Whilst the Claimant maintained that he did not know at the time that the intelligence he gathered would be used for that purpose, this conflicted with the evidence he had given in his earlier asylum claim, in which he expressly stated that he had knowledge his intelligence work wasused by the Serbian security forces to target supporters of the Kosovan Liberation Army (the KLA), including targeted assassinations. He had also stated that he worked for senior members of the Milosevic regime who were later prosecuted at the International Criminal Tribunal for Yugoslavia (ICTY) and that he was named at the ICTY as being involved in gathering the information which was used to plan assassinations.

In assessing the Claimant’s case, Mr Justice King went through a detailed review of his asylum evidence in the judgment (which is well worth reading in its entirety, including the evidence provided by the expert report given on his behalf). The judgment then goes on to consider the good character requirement for the purpose of naturalisation.

The main principles established and reaffirmed in the judgment regarding the good character requirement include that:

  1. the onus is on the applicant to satisfy the SSHD that he is of good character;
  2. the court can only interfere on grounds of error of law or irrationality/Wednesbury unreasonableness / procedural fairness;
  3. there is no definition of “good character” in the Act;
  4. the standard of good character is set by the SSHD and it is open on her to set a high standard;
  5. the SSHD must be satisfied that an applicant is of good character on the balance of probabilities;
  6. the grant of asylum does not involve any obligation to grant naturalisation;
  7. the test for disqualification from naturalisation is subjective, i.e. if the SSHD is not satisfied that an applicant is of good character, and has good reason not to be satisfied, she is bound to refuse naturalisation.

The judgment then goes on to consider the SSHD’s Nationality Policy Guidance and Casework Instruction, which specifically deals with war crimes or crimes against humanity as well as the Nationality Instructions which set out further detailed guidance for considering naturalisation applications from people suspected of involvement in war crimes or crimes against humanity.

In highlighting the distinction between the application of the good character requirement for the purpose of nationality versus the Article 1F exclusion in the Refugee Convention and criminal responsibility in international law, Mr Justice King notes at para 27 [underlining added]:

“… for the purposes of rejecting an application for naturalisation by reference to the good character requirement, it is unnecessary to show personal responsibility such as would permit exclusion from the Refugee convention under Article 1F (SK) and the level of involvement or association needs not be of the kind that would engage criminal responsibility in international law. It is not necessary to show that the individual was guilty of a crime against humanity or concerted criminal conspiracy….the consideration is whether there was an involvement with or association with one.”

The judgment makes it plain that the test for assessing whether a person would be excluded from asylum (under Article 1F of the Refugee Convention) is different to the test applicable to assessing whether the SSHD would be satisfied that the person is of good character for the purpose of naturalisation.

In assessing whether the Claimant had established that the SSHD had erred in law or through irrationality in her approach to refusing the Claimant’s nationality application, Mr Justice King found that the SSHD was entitled on the information before her to find a factual link between the Claimant and the crimes against humanity and that the SSHD was not irrational ‘in concluding that the Claimant’s intelligence activities for the Serbian Intelligence Services in fact facilitated the targeted assassinations of ethnic Albanians in a systematic campaign to eradicate any move to Kosovan independence and as part of the longstanding campaign of ethnic cleansing by the Milosevic regime.’ (at para 65’_).

Accordingly, the Claimant had not discharged the burden on him to satisfy the SSHD that he was of good character and the claim was therefore dismissed. Despite the Claimant providing inconsistent evidence regarding his knowledge of the use of information that he intercepted whilst working in his intelligence role, Mr Justice King found that the SSHD is entitled to rely on whatever evidence put before her that ‘she considers apt’. Accordingly, she was entitled to take account of the Claimant’s earlier asylum evidence for the purpose of assessing whether he satisfied the good character requirement for naturalisation.

This ruling provides relevant and important considerations for people wishing to naturalise. Gherson has extensive experience in advising individuals wishing to naturalise. If you wish to speak to a member of our team please contact us.