Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case
The Claimant was an indirect participant in war crimes during the civil war in Sierra Leone. He alleged that he was forced to train soldiers under or a “do or die” option in Sierra Leone. The soldiers in turn participated in war crimes. He was also a member of the AFRC, and an associate of Johny Paul Koroma, the former President of Sierra Leone, who was indicted, but never convicted of war crimes. The Claimant was granted asylum on the basis that there was a reasonable likelihood that he would face persecution if returned to Sierra Leone. He was granted indefinite leave to remain in the UK.
The Claimant applied for naturalisation under s.6 of the British Nationality Act 1981 in 2011, and in 2019. His second application was refused on 14/4/2021 by the Secretary of State for the Home Department (“the SSHD”). He commenced judicial review against that decision on the basis that there was a failure to allow an opportunity to address relevant matters of good character. The proceedings were withdrawn by consent which directed the SSHD to reconsider the decision. On 8/4/2022, the SSHD refused the Claimant’s application for naturalisation again.
The Claimant applied for judicial review on the basis that there was an error of law in that the decision maker did not consider the following in the exercise of her discretion and referred to in the published policy: (a) mitigation, duress and other defences, including the superior orders defence; (b) the degree to which the Claimant had distanced himself from his past membership or associations in Sierra Leone; and (c) the degree to which he was personally and directly involved in war crimes in Sierra Leone.
Permission for judicial review was granted by Mr Simon Tinkler (sitting as a Deputy High Court Judge) on all these grounds following a contested permission hearing at which the SSHD was represented by counsel.
The Claimant contended that the lawfulness of a decision under s.6 could be reviewed through a common law proportionality test following decisions of the UKSC.
Mostyn J appears to have accepted that the common law has proceeded based on an intersection between proportionality and reasonableness. The concept of disproportionate, and therefore, unlawful treatment, is easy to understand where the state is removing or limiting a right of the subject. He appears to have accepted that it is perfectly logical for the Claimant to argue that the measure of depriving him of a passport because of things he did nearly a quarter of a century ago is disproportionate.
However, Mr Justice Mostyn rejected the Claimant’s submission that the lawfulness of a decision under s.6 of the British Nationality Act 1981 could be reviewed with reference to a common law proportionality test. In holding so, he appears to have declined to follow the reasoning of the UKSC decisions in Pham  1 WLR 1591, Kennedy  1 AC 455, and Bank Mellet  AC 700. The judge appears to have held that applying a proportionality analysis adopts a merit-based approach which steps into the shoes of the decision maker applying the decision of Mr Justice Jay in Begum v SSHD  Appeal No SC/163/2019, and the UKSC decision in R (Keyu) v SSHD  UKSC 69 (referred to in Begum).
Mostyn J does not appear to have ruled on the Claimant’s submission that the case of Begum is distinguishable, or wrongly decided considering higher authority. Nor did he make a ruling on other material submissions which undermine his reasoning.
The Claimant intends to seek permission to appeal from the Court of Appeal against the decision of Mostyn J.
Arfan Khan represented the Claimant and is instructed on appeal by Graceland Solicitors.
The judgment of Mostyn J can be accessed through the following link: