England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE & DIVISIONAL COURT) GIBBS J

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 10th May 2001

LORD JUSTICE LATHAM:

1. Mr Ullah, the respondent, is a British citizen under the British Nationality Act 1981, as is his wife. They live in this country with their five children. They are both British citizens by descent, a concept to which I will return in more detail later. The consequence is that any further children that they have will not automatically become British citizens if they are not born in the United Kingdom. Two of their children are sadly severely disabled. They would like to be able to go to Bangladesh, their country of origin, and of which they are also citizens, for a time to take advantage of the extended family help which would be available to them. They are concerned that if they were to have any child whilst in Bangladesh, that child would not, for the reason that I have given, automatically become a British citizen.
2. As a result, Mr Ullah applied to the Secretary of State for naturalisation pursuant to s. 6 of the 1981 Act. The result of a successful application for naturalisation is that the applicant becomes a British citizen otherwise than by descent, and his or her child is accordingly automatically entitled to British citizenship. The first response from the Immigration and Nationality Directorate on the 14th October 1988, simply said that from the information that had been provided it appeared that Mr Ullah was already a British citizen. Those acting for Mr Ullah persisted with the application. The response was:

"In your letter you state that you wish to continue with your application for naturalisation as a British citizen. As previously explained in my letter of the 14th October 1998 you are already a British citizen and therefore cannot and do not need to apply for naturalisation "(original emphasis)

3. Subsequently, the position of the Directorate was elucidated in a letter of the 19th May 1999, which stated:

"I am afraid that it remains our view that Mr Ullah, being a British citizen already, is ineligible for naturalisation as such a citizen.

Although the 1981 Act does not expressly rule out the possibility that a British citizen "by descent" could be granted a certificate of naturalisation under s. 6, and thereby become a citizen "otherwise than by descent", it is we think implicit in the structure of the Act, and in the record of proceedings on the then British Nationality Bill, that Parliament cannot have intended this to be possible.

The Act specifically provides for British dependent territories citizens, British Nationals (Overseas), British Overseas citizens, British subjects and British protected persons to register as British citizens in specified circumstances (s. 4). No such procedure is laid down for registration as British citizens "otherwise than by descent" by British Citizens "by descent". (The marginal note against s. 6, for example, refers to acquisition [of British citizenship] by naturalisation (my emphasis)). Section 14 sets out an exclusive definition of who is a British citizen by descent, and provides in particular that those who renounce British citizenship and subsequently reregister will still be citizens by descent (s-s (1)(f) and (g)).

Amendments to the Bill which would have facilitated the sort of application you have in mind were successfully resisted in 1981 on the ground that any children of British citizens by descent who might reasonably expect to be able to acquire our citizenship would be adequately catered for by the registration provisions in the legislation (House of Lords Official Report 23.7.81 cols 325 to 331 and 7.10.81 cols 166 to 174). The Government has no plans to change the law on this point"

4. That decision was the subject matter of the application for Judicial Review with which we are concerned. Before the judge, Gibbs J, it was submitted on Mr Ullah's behalf that the 1981 Act clearly provides for two separate categories or classes of British citizens, those described as British citizens by descent, and those described as British citizens otherwise than by descent. British citizens by descent suffer a real disadvantage, namely the inability to secure entitlement to British citizenship for their children if they are born outside the United Kingdom. That disadvantage is not suffered by those who become British citizens by naturalisation, and nothing in s. 6 of the 1981 Act expressly precludes an application for naturalisation being made by a British citizen by descent. Section 6, the marginal note to which is "Acquisition by naturalisation" provides by s-s (1):

"If on an application for naturalisation as a British citizen by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this sub-section, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."

5. The simple argument of Mr Ullah was that this section does not in any way restrict the categories of persons who can make such an application. It was submitted that if it were otherwise, significant injustice or anomalies would result. On behalf of the Secretary of State it was submitted, essentially, that British citizenship was something that you either had or did not have. There were no categories or classifications of such citizenship. Mr Ullah was already entitled to such citizenship, and was not therefore somebody who could take advantage of s. 6.
6. Gibbs J in a careful judgment came to the conclusion that the submissions on behalf of Mr Ullah were correct. He held that, on a proper construction of the 1981 Act, a clear distinction is made between British citizens by descent and British citizens otherwise than by descent. The latter class or category obtains a significant advantage in relation to the treatment of their children. That is an advantage which can be acquired by naturalisation. There was nothing in the 1981 Act, in his view, which precludes a British citizen by descent from applying for naturalisation on an ordinary and natural reading of s. 6(1). Accordingly, he held that the Secretary of State was wrong to decline to accept Mr Ullah's application. The Secretary of State appeals to this court from that decision.
7. The 1981 Act was passed in order to take account of the substantial changes affecting British Nationals since the British Nationality Act 1948, and in particular to rights of abode in the United Kingdom resulting from the successive restrictions on immigration imposed in the 1960's and 1970's. It did so, in particular, by redefining those entitled to a right of abode as British citizens and also those to whom the status of a British Dependent Territories citizen, a British Overseas citizen, and a British subject was to be granted. We are concerned with Part I of the Act, dealing with British citizenship.
8. Sections 1 to 11 set out the various modes by which British citizenship can be acquired. Mr Ullah became a British citizen pursuant to s. 11(1), in the part of Part I dealing with acquisition at commencement. The marginal note to the section reads:

"Citizens of the UK and Colonies who are to become British citizens at commencement"

9. The sub-section itself provides:

".... a person who immediately before commencement

(a) was a citizen of the United Kingdom and Colonies; and

(b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force,

shall at commencement become a British citizen."

10. Having been born outside the United Kingdom, and a citizen of the United Kingdom and Colonies by virtue of s. 5 of the 1948 Act, Mr Ullah was thereby a British citizen but a British citizen "by descent" by virtue of the provisions of s. 14 (1) of the Act, which provides, so far as material:

"For the purposes of this Act a British citizen is a British citizen "by descent" if and only if:

........

(b) ....he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement:

(i) was a citizen of the United Kingdom and Colonies by virtue of s. 5 of the 1948 Act (citizenship by descent) ......"

11. The problem which Mr Ullah seeks to avoid is created by the provisions of sections 2 and 3 of the 1981 Act. Section 2 is in the part of Part 1 of the Act dealing with acquisition after commencement; the marginal note to the section is "Acquisition by descent". Section 2(1) provides:

"A person born outside the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother:

(a) is a British citizen otherwise than by descent ...."

12. This provision therefore precludes any child of Mr Ullah from acquiring British citizenship "by descent" if born outside the United Kingdom. Such a child can, however, acquire British citizenship pursuant to s. 3, the marginal note to which is "Acquisition by registration: Minors". Sub-section (1) gives a general discretion in the Secretary of State to register any minor as a British citizen. But any child of Mr Ullah born outside the United Kingdom would only be entitled to registration pursuant to s. 3(5) which provides:

"A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the following requirements are satisfied; namely:

(a) that at the time of that person's birth his father or mother was a British citizen by descent; and

(b) subject to s-s (6) that that person and his father and mother were in the United Kingdom at the beginning of the period of three years ending with the date of the application and that, in the case of each of them, the number of days on which the person in question was absent from the United Kingdom in that period does not exceed 270; and

(c) Subject to s-s (6) that the consent of his father and mother to his registration has been signified in the prescribed manner."

13. The consequence for any child of Mr Ullah born out of the United Kingdom is that he or she would not be entitled to acquire British citizenship unless that child was able to meet the criteria in s. 3(5).
14. Mr Pannick, QC on behalf of the Secretary of State, submits that as Mr Ullah is already a British citizen, s. 6 of the 1981 Act cannot apply to him. It would be a nonsense to suggest that Parliament intended that a person could make an application for that which he already had. He submits that British citizenship is a unitary concept, in other words there are no classes of British citizenship. Mr Ullah himself has all the rights of a British citizen. The fact that he is a British citizen by descent affects his children and not himself. He has the same status as a British citizen whether he is so by descent or otherwise than by descent. The Act, properly construed, is intended to define status.
15. Mr Pannick accepts that the wording of s. 6(1) of the 1981 Act is broad in that it does not seek on its face to restrict the categories of those who could apply. He further accepts that s. 4 of the 1981 Act, which provides for acquisition of British citizenship by registration as of right by those who are British Dependent Territories citizens, British Overseas citizens and British subjects (and now British Nationals (Overseas), by reason of the Hong Kong (Nationality) Order 1986), if certain conditions are met, results in such persons becoming British citizens otherwise than by descent with the consequent benefits for their children if born outside the United Kingdom. He accepts that Mr Ullah is expressly excluded from becoming a British citizen otherwise than by descent by this route. But, he submits, this, in itself, gives no support to the contention that s. 6 should be available to enable him to become such a citizen. In context, he submits that the phrase "on an application for Naturalisation as a British citizen" means "if on an application to become a British citizen by naturalisation", which would accord with the marginal note, "Acquisition by naturalisation".
16. Mr Pannick's second submission is that if the statute had envisaged that the status of British citizenship was divided into two classes, between which a person might transfer, one would expect express provision to be made for the consequences of such a transfer and the 1981 Act makes no such provision. Sections 12 and 13 provide for renunciation and resumption of British citizenship respectively. There is no equivalent to suggest that a British citizen by descent can renounce or divest himself of that class of citizenship. As a result, s. 14(1) of the 1981 Act creates a insuperable problem for Mr Ullah. Mr Pannick submits that Mr Ullah would always remain, even if permitted to apply for naturalisation, a British citizen "by descent" by virtue of this section. In the absence of any statutory provision to the contrary, he would always remain within the wording of s. 14(1)(b)(i).
17. Mr Pannick further submits that there are clear indications elsewhere in the Act that Parliament intended British citizenship to be what he described as a unitary status. Section 42 of the 1981 Act dealing with the effects of registration and naturalisation provides in s-s (5):

"A person to whom a certificate of naturalisation as a British citizen or as a British Dependent Territory citizen is granted under any provision of this Act shall be a citizen of that description as from the date on which the certificate is granted."

18. This, he submits, makes it clear that the only relevant status is that of British citizen, whatever the method of acquisition. A person therefore having that status cannot sensibly ask to "acquire" it by an alternative means. This proposition is, he says, further supported by the provisions of s. 40 of the 1981 Act. Sub-section (1) of this section empowers the Secretary of State to deprive a British citizen of his British citizenship if satisfied that the registration or certificate of naturalisation "by virtue of which he is such a citizen" was obtained by means of fraud, false representation, or the concealment of any material fact. Sub-section (2) applies s-s (1) to every British citizen who "became a British citizen after the commencement of the Act by virtue of registration or a certificate of naturalisation granted under s. 6." If Mr Ullah's argument is correct, he would be immune from the exercise of such a power by the Secretary of State because he would not have "become" a British citizen by virtue of a certificate of naturalisation were one granted to him on the grounds of fraud etc, because he had in any event been a British citizen at the time of certification.
19. Mr Pannick acknowledges that the consequences of his submissions are that British citizens by descent are not able to ensure that their children if born outside the United Kingdom would be entitled without more to British citizenship, unlike the children of British citizens otherwise than by descent. The disadvantage, he submits, was clearly recognised by Parliament which had provided a remedy in s. 3 of the 1981 Act. Even if that remedy results in some anomalies or apparent unfairness, that could not justify the conclusion that the logic of his submissions as to the proper construction of the Act should be distorted. He submits that there was and remains a clear policy justification for requiring children of British citizen by descent to demonstrate a continuing connection with the United Kingdom, which is the effect of s. 2 and 3 of the 1981 Act. He points to the evidence of Bruce Hebblewhite, a Higher Executive Officer employed by the Home Office, given in his statement of the 24th July 2000. He said as follows:

"3. The distinction between British citizens by descent and British citizens otherwise than by descent is primarily relevant in determining the status of children born outside the United Kingdom to parents who themselves are British citizens. .....

3(Sic) If this distinction was not made, it would be possible for British citizenship to be transmitted indefinitely by automatic acquisition to successive generations, regardless of any real connection with the United Kingdom. If it were possible for a British citizen by descent to be naturalised, and if, by being naturalised that person became a British citizen otherwise than by descent, the provisions to prevent such indefinite transmission would be undermined. The provisions have operated in accordance with this interpretation for almost 20 years, and the Secretary of State would respectfully invite the court to reject any submission that the scheme could be regarded as "absurd""

20. On behalf of Mr Ullah, Mr Fransman, QC submits that s.6 of the 1981 Act should be given its ordinary and natural meaning. This primary rule of construction is reinforced, he submits, by the fact that it avoids anomaly and unfairness. The most obvious example of unfairness is the fact that a Bangladeshi national who is not a citizen is entitled to apply for naturalisation even though his connection with the United Kingdom may be less strong than that of Mr Ullah. This, he submits, is such a glaring example of injustice provided by the construction placed on the section by the Secretary of State that it cannot be correct. He further submits that Mr Ullah could circumvent this construction by the simple expedient of renouncing his British citizenship under s. 12 of the 1981 Act and then making application for naturalisation under s. 6.
21. Mr Fransman submits that the judge was correct in concluding that there are two classes of British citizenship, British citizens by descent, and British citizens by otherwise than by descent. These classes are clearly defined by ss. 2 and 14 of the 1981 Act. A similar classification applies to British Dependent Territories citizens; and the concept has been reiterated in s. 2(1) of the British Nationality (Hong Kong) Act 1990. The detailed provisions of s. 14 of the 1981 Act as to who are to be treated as British citizens by descent make it clear that Parliament's intention was to create a separate class of British citizenship. This would accord entirely with the policy expressed in Mr Hebblewhite's statement. The policy objective could be achieved by the exercise of the Secretary of State's discretion under s. 6 so as to ensure that the applicant had and would maintain a close connection with the United Kingdom. It follows that the policy cannot of itself be used as support for the Secretary of State's construction.
22. He submits that, contrary to the arguments of Mr Pannick, s. 14 of the 1981 Act provides no obstacle to Mr Ullah. If Mr Ullah were successful in obtaining naturalisation, then he would no longer be a British citizen "only" because he fell within s. 14(1)(b)(i); he would be a British citizen by virtue also of s. 6 and s. 42 of the 1981 Act. On a proper construction of the phrase "if and only if" in s. 14(1), his additional qualification for British citizenship would take him outside the category of British citizens by descent. He accepts that the Secretary of State would have no power under s. 40 of the 1981 Act to deprive Mr Ullah of his British citizenship if naturalisation had been obtained by fraud, but submits that that was of no consequence because the grant of naturalisation would as a matter of general law be vitiated by the fraud, so that he would not obtain the benefit of naturalisation and would remain a British citizen by descent.
23. Mr Fransman's next submission is based upon an analysis of the historical development of the problems faced by those who became British citizens by descent, and on the difference in wording between the naturalisation provisions in the 1981 Act, and in the British Nationality Act 1948, its predecessor. The naturalisation provisions in the 1948 Act were expressly restricted to aliens and British protected persons. Children of citizens of the United Kingdom and Colonies were, under the 1948 Act, entitled to the same citizenship as their parents even if born in foreign countries, simply in that case by notification of birth to the appropriate Consular authority. If the child of a citizen of the United Kingdom and Colonies was born in a Commonwealth country, he became a citizen of the Commonwealth country in question, with, in effect, the same rights as if that child was a citizen of the United Kingdom and Colonies. The result of successive Immigration Acts from 1962 onwards was to remove the automatic right of entry to the United Kingdom from Commonwealth citizens, with the practical consequence that the children of citizens of the United Kingdom and Colonies born in Commonwealth countries equally lost that right. Mr Fransman's submission is that s. 6 of the 1981 Act, which was not expressed to be applicable only to aliens and British Protected persons, must have been intended to provide an opportunity for anybody to make such an application, and in particular someone whose children were disadvantaged by what had been, in effect, the removal of their right to a citizenship status which would entitle them to entry into the United Kingdom.
24. Finally, Mr Fransman submits that the Secretary of State's construction does not further the policy as described by Mr Hebblewhite. There will always remain ways by which those who seek to obtain the advantage of British citizenship for their children could manipulate the system without in truth retaining greater connection with the United Kingdom than Mr Ullah possesses. They could do so, in particular, by renunciation of their citizenship, and an application under s.6.
25. Mr Fransman's submissions are undoubtedly attractive in the sense that they would appear to provide a solution to what he has described as the unfairness resulting from the inability of a British citizen by descent being able to provide his children if born outside the United Kingdom, with the same right to citizenship as a British citizen by naturalisation, who might, as he has said, have less connection with this country. It was undoubtedly an argument which influenced Gibbs J in his conclusion that he could apply a literal, or what he described as the ordinary and natural, meaning to the words in s. 6.
26. I have come to the clear conclusion that this construction is wrong. The first and most important reason is what appears to me to be the purpose and structure of the 1981 Act. The Act deals with the acquisition, renunciation and resumption of citizenship. It is concerned with identifying and determining the status of an individual and the means of acquiring or discarding that status. It does not itself define the rights which that status confers.
27. Secondly, it follows that prima facie, one would expect the status of British citizens to be a unitary concept, unless there were some clear words to suggest a contrary intention. The only distinction which Mr Fransman can identify is between British citizens by descent and British citizens otherwise than by descent. And the only distinction between the two is that the child of a British citizen by descent born outside the United Kingdom does not, as of right, become a British citizen. That is not a distinction relevant to Mr Ullah's status. Mr Ullah remains a British citizen. The distinction relates to his child. The Act is not concerned directly with the "transmission" of citizenship. It could be argued that this distinction relates to a right or privilege attached to the status of a British citizen otherwise than by descent. But as I have said, the Act is not concerned with defining rights or privileges conferred by the status of British citizenship.
28. Thirdly, the wording of the Act points clearly to the conclusion that Parliament did not envisage or intend there to be different classes of British citizens. Section 4 of the 1981 Act makes clear provision for transfer between the various categories of citizenship but no provision suggesting that within each category of citizen there were further categories or classes. It would be surprising if express provision were made for transfer between categories of citizens, but no express provision for transfer between classes within each category of citizenship. Further, s. 42 of the 1981 Act suggests that the only categories of citizenship which are envisaged are those expressly catered for in the different parts of the Act. In particular, s. 42(5) would be a curiously inept statutory provision if a British citizen such as Mr Ullah were able to obtain British citizenship by naturalisation. It is clearly intended to provide that a person who was not previously a British citizen was to be such a citizen from the date on which his certificate of naturalisation was granted. Further, I accept the argument of Mr Pannick that the provisions of s. 40 would not make sense if a person already a British citizen was entitled to obtain citizenship by naturalisation. The sanction of deprivation of citizenship could not be applied to a person such as Mr Ullah if his certificate of naturalisation had been obtained by means of fraud, false representation or concealment of any material fact. I cannot believe that if Parliament had intended two separate classes of British citizen between which transfer was possible, an equivalent express provision would not have been made.
29. Fourthly, I consider that the provisions of s. 14 of the 1981 Act are an insuperable obstacle to Mr Fransman's contentions. Mr Ullah at all times remains a person to whom s. 14(1)(b)(i) applies. The words "if and only if" are used to ensure that, whatever might otherwise have been the meaning of a British citizen "by descent", only those falling within the provisions of s-s (1) are to be treated as such for the purposes of the Act. Even if his construction of s. 6 was correct, and he were able to persuade the Secretary of State to grant him a Certificate of Naturalisation, he would remain a British citizen by descent by virtue of the provisions of s. 14. If Parliament had intended there to be the two classes contended for by Mr Fransman, provision would have had to have been made expressly to deal with this problem.
30. Fifthly, the difference between the effect on a child born outside the United Kingdom to a British citizen by descent or otherwise than by descent has been expressly recognised and provided for by Parliament in s. 3 of the 1948 Act. This mitigates, in the case of the child, the effects of s. 2. There may be argument as to the extent to which it does so satisfactorily. That is not a matter which can affect the construction of the Act. It is to be noted, however, that it gives a right to British citizenship to such a child if a three year residence requirement can be met by his parents. That is in contradistinction to the right to be registered by other categories of citizens under s. 4, who have to meet a 5 year qualifying period, and acquisition by naturalisation which also requires 5 years residence under s. 6(1), or 3 years under s. 6(2) where the applicant's spouse is a British citizen, and does not give the applicant a right to naturalisation. The fact that anomalies and apparent injustice can be identified by the practical application of these provisions cannot, in itself, justify rewriting other provisions in the Act so as to right these perceived anomalies or injustices. They are proper material for debate as to whether or not proper provision has been made in the Act for children born outside the United Kingdom to those who are British citizens by descent, but cannot be used so as to give to such children, or to their parents, rights which the statute does not provide.
31. Sixthly, it is difficult to see how the Secretary of State could sensibly exercise his discretion under s. 6 if Mr Fransman is correct. If an applicant in Mr Ullah's position can establish five years residence, good character, sufficient knowledge of the language, and an intent to make his principal home in the United Kingdom, which are the requirements of Schedule 1 to the Act, it is difficult to see how he could be refused naturalisation if Mr Fransman's argument is correct. That would transform what is a discretionary power in the Secretary of State to, in effect, an entitlement in the case of a British citizen by descent who meets the criteria in Schedule 1. Alternatively, if the Secretary of State considered that the statutory policy in relation to the acquisition by children of British citizens by descent was defined by s. 3, and that to grant a certificate of naturalisation would be to circumvent that statutory policy, he would be bound to refuse such an application. Neither result seems to me to be satisfactory.
32. For all these reasons, I consider that s. 6 has to be read in the light of my conclusion that British citizenship is a unitary concept, and that it follows that Mr Ullah, as a British citizen, is someone to whom the provisions of s. 6 do not apply. I agree with Mr Pannick that the word "as" carries with it the connotation of "to become". In coming to this conclusion, I take into account the argument by Mr Fransman that there is a clear difference in wording between s. 6 of the 1981 Act and s. 10(1) of the 1948 Act. If the other provisions of the 1981 Act did not point so clearly towards the conclusion which I have reached, it might be that this change of wording would have been of significance. But for the reasons that I have given, I do not consider that the contention for which he has so ably argued is correct. For these reasons,. I would allow this appeal, and refuse the application of Mr Ullah for Judicial Review.

THE HON MR JUSTICE LLOYD:

33. I agree with both judgments which I have read in draft. Mr Fransman spoke eloquently of the injustice which his client, and others in his position, feel by virtue of not being able to pass their British citizenship to their children regardless of where the birth takes place. That feeling is understandable. But Parliament has afforded Mr Ullah the status of a British citizen on the basis that this is the position, and has also provided a palliative, by way of section 3(2) and (5), whereby a child born outside the United Kingdom is entitled to acquire British citizenship by registration if certain conditions are met. Whether one likes it or not, that is clearly the policy of the 1981 Act, and it is carried into effect, in particular, by section 14. By virtue of that section, Mr Ullah is within the class of persons who are defined, for the purposes of the Act, as British citizens by descent, and nothing he can do (apart from renunciation) can cause him to escape from that category. If he were to renounce under section 12, he could then resume British citizenship under section 13, but he would then again fall within the provisions of section 14(1) and so again be defined as a British citizen by descent: see s.14(1)(g).
34. It is true that, having renounced, and therefore no longer being a British citizen, he could then apply for naturalisation under section 6. It seems to me that, in considering the exercise of his discretion under that section, if the conditions in Schedule 1 are satisfied, the Secretary of State could legitimately take into account the history and the fact that the applicant could instead proceed under section 13, and could take into account the different consequences that would follow under that procedure. Whether, in any given case, that would lead the Secretary of State to refuse to exercise his discretion in favour of the applicant would be a question for him. But it does not seem to me that this route provides someone in Mr Ullah's position with a reliable way of avoiding the consequences of his being a British citizen, but by descent.
35. For those reasons, and those given by my Lords, I agree that the appeal should be allowed.

LORD JUSTICE JUDGE:

36. I agree with Latham LJ, but in deference to the careful judgment by Gibbs J, and because the argument before us appears to have been somewhat differently focused than it was before him, I shall add a short judgment of my own.
37. The acquisition of British citizenship is governed by the British Nationality Act 1981. For some, citizenship is a right of birth: for others, provided prescribed statutory conditions are established, it is an entitlement: for yet others, it is entirely dependent on grant, subject to the discretionary judgment of the Home Secretary. However it is acquired, what is acquired is citizenship. There is no pecking order arising from the different methods of acquisition. Absent dishonesty within the meaning of s40(1), a naturalised citizen is no less a citizen than a citizen by birth. The quality of his citizenship is undiminished. A citizen by descent, too, is entitled to identical treatment and enjoys the same status as any other citizen. There is however a single disadvantage to citizenship by descent which does not apply to citizenship acquired by any other method, the effect of which I do not under estimate. Although no doubt a matter of concern to many such citizens, such as Mr Ullah, its effect is visited not upon the citizen by descent personally, but on his or her children, assuming there are any, and then only if they happen to be born outside the United Kingdom at a time when the parent is not serving this country abroad in accordance with s2(2) of the Act.
38. Descent can be an amorphous concept, often treated synonymously with ancestry. There are vast numbers of, for example, Americans and Australians of English, or Irish, or Welsh, or Scottish, or British descent. Equally, numerous British citizens by birth are of for example Asian, Irish or French descent. The telephone directory identifies British citizens whose surnames demonstrate Huguenot origins. The ancestry of the Royal Family includes descent from, among others, the Elector of Hanover and the Princes of Saxe-Coburg.
39. For this reason, no doubt, "descent" in this context is expressly defined in the Act. In consequence citizenship by descent is limited by s14. The qualifications preserve the link between an individual's lineage and the United Kingdom. And for those parents who fall within the definition of "citizens by descent", and who have themselves maintained a link with the United Kingdom, and value their citizenship, but who happen to be abroad, but not on public service, when their child is born, an opportunity is made available for registering the child as a British citizen, as a matter of entitlement. In summary, without reciting it, s3 of the Act provides the statutory remedy for any potential disadvantage to children born outside the United Kingdom to citizens of British descent. And the provision of a remedy for this single disadvantage underlines that its existence was acknowledged and deliberately accepted by Parliament.
40. In those circumstances this application for judicial review must fail.
41. I should add one further comment in relation to the application by Mr Ullah for citizenship by naturalisation. Assuming the establishment of the necessary preconditions, the application would be considered and decided by the Secretary of State, exercising his discretion. As I see it, it would not be improper for him to decide as a matter of general policy, and subject of course to the circumstances of any individual case, to refuse to grant an application for naturalisation if its sole purpose were to circumvent the statutory disadvantage which may be suffered by children born abroad, in the future, to a citizen by descent. We should then face the unseemly prospect, first, of a British citizen being refused citizenship, and second, of a British citizen continuing, as of right, to remain a British citizen when he had formally been refused citizenship. If not quite absurd, a rather eccentric result would have been produced by an Act which purports to deal comprehensively with these issues.
ORDER: Appeal allowed with the costs. (Order does not form part of approved Judgment)