England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(SIR RICHARD TUCKER)

		Royal Courts of Justice Strand London WC2A 2LL Friday 9 August 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal from an order made on 4 July 2002 by Sir Richard Tucker, sitting as a judge in the Administrative Court, refusing the applicant, Mr Peter Harrison, permission to renew an application for permission to move for judicial review of a decision made by the Secretary of State to refuse to reopen the question whether the applicant's claim to British citizenship by patrialty had been properly rejected. The relevant decision is contained in a letter, dated 18 January 2002, written by the Rt Hon Jeff Rooker MP, as he then was, to the Minister of State at the Home Office, the Rt Hon Frank Dobson MP. It defines the situation in this case, and I will set it out in full:

"Thank you for letter of 17 December enclosing one from Mr P D Harrison, of Bloomsbury Place, 27 Old Gloucester Street, London, WC1N 3XX about his eligibility for British citizenship.

Mr Harrison has been seeking either citizenship of the United Kingdom and Colonies (CUKC) or, more recently, British citizenship for many years but has been unable to satisfy us that he has met the statutory requirements. His recourse to the courts to try to establish that our decisions were either wrong in law or that we have in some other way been at fault in the way we have dealt with his various applications, has also so far been unsuccessful. Barbara Roche's letter of 12 April dealt in some detail with his ineligibility for registration and naturalisation and there is nothing I can add to the full explanations she gave.

However, in a new development, Mr Harrison now says that his father was born on a British-registered ship en-route from the United Kingdom to New Zealand in 1897. If this had been the case, Mr Harrison's father would at birth have been regarded as being born within the Crown's dominions and would have been a natural-born British subject under common law. He would have remained a British subject until the British Nationality Act 1948 came into force on 1 January 1949 when, by virtue of section 12(1)(a) and section 32(5), he would have become a CUKC otherwise than by descent (although Mr Harrison says his father would have been a British citizen under the 1948 Act, he is mistaken because this status was only created by the British Nationality Act 1981 which came into force in 1983).

When Mr Harrison was born in 1946 he was also a British subject and the fact that his father had become a CUKC under section 12(1)(a) of the 1948 Act would have meant that he also became a CUKC, under section 12(2) of that Act. Mr Harrison would have had a United Kingdom right of abode under section 2(1)(b)(i) of the Immigration Act 1971 as originally in force (ie parent born in the united Kingdom) and would have become a British citizen under section 11(1) of the British Nationality Act 1981.

The problem is that, on Mr Harrison's own admission, he cannot provide any documentary evidence of his father's birth aboard a British-registered ship - his affidavit is of no evidentiary value - nor is there anybody living who can corroborate the claim. There is no record of any documents he may have shown to an immigration officer on his first arrival here in 1969 but, throughout his subsequent dealings with us, which span some 30 years, Mr Harrison has consistently said that his father was born in Australia. He has never before mentioned that his father was born elsewhere despite, apparently, knowing this since 1969.

In the circumstances, I am afraid we have to conclude that there is no evidence Mr Harrison has an automatic claim to British citizenship. The position remains that if he wishes to become a British citizen he will need to make a fresh application for naturalisation."

2. The applicant seeks an order directing the Minister of State, on behalf of the Secretary of State, to accept his affidavit setting out the circumstances of his father's birth in 1897. In his letter, quoted above, the Minister described the affidavit as being of "no evidential value". The affidavit, dated 13 December 2001, is in these terms:

"I, Peter Daniel Harrison, make Oath and say as follows:

1. That my Father, Charles Harrison, was born in 1897 on a British-registered vessel sailing between Bristol in England and Port Chalmers in New Zealand; and that his original birth certificate was issued by the Master of that vessel prior to his embarkation at the Port of Adelaide.

2. That, as his Mother was unmarred, my Father was subsequently adopted by my Grandparents, then living in the Colony of South Australia, and was given the name of my Grandfather, Charles Harrison, who had been born in England in 1872.

3. That my Father was then registered in the Colony of South Australia as having been born in Adelaide on 28 December 1897.

4. That my Father's original birth certificate and adoption papers shown by me at the time of my first arrival in the United Kingdom in 1969, were subsequently destroyed, at my Mother's request, following the death of my Father in 1969.

5. That, as no official records now exist to prove the above, or even to now identify the said vessel, and as no people are left alive to verify these facts, I make this Declaration in order to claim my Father's posthumous right to be recognised as a British citizen by birth, under Section 32(5) of the British Nationality Act 1948."

3. By way of further relief, the applicant seeks, in the alternative, an order directing the Secretary of State to reconsider the application for British citizenship in the light of a letter of his which is referred to by Mr Dobson in a letter of 17 December 2001. He also seeks to set up an independent tribunal to review disputed claims to British citizenship under "Article 6 of the Human Rights Act 1998" (sic), which is said to guarantee a hearing by an independent and impartial tribunal where the determination of civil rights is concerned. The reference there to "Article 6 of the Human Rights Act 1998" must be taken as a reference to Article 6 of the Convention which is scheduled to the 1998 Act.
4. The birth certificate of the applicant's father, Charles Stanley Martin Harrison, comprises an entry on 1 February 1898 in the Registry of Births, Deaths and Marriages for the State of South Australia District of Adelaide. It shows Mr Charles Harrison as born on 28 December 1897 at Mary Street, in a town or neighbourhood which is difficult to decipher - but which might be "Unley". The certificate is signed by Mr Charles Harrison's father, Mr Charles Francis Harrison, as informant. The applicant's letter to Mr Dobson, to which reference is made in Mr Dobson's letter of 17 December 2001 to Mr Rooker, has not been included in the bundle. The applicant tells me that he kept no copy of it; and the Secretary of State has not included it in the documents which he has provided.
5. The application for permission to move for judicial review was first considered by Burton J on paper. He refused permission on 27 May 2002 for reasons given in a notification under CPR 54.11. He wrote:

"The Claimant's claim is unarguable. His case on the basis of his father's alleged birth on board ship has been reasonably refused (see paragraphs 14-19 of the Acknowledgement of Service). The option remains of taking up the Secretary of State's suggestion of his making a further application for naturalisation."

6. The reference to paragraphs in the acknowledgement of service is to the grounds of opposition annexed to the Secretary of State's acknowledgement of service of the application to move for judicial review. The relevant paragraphs read:

"14. The Claimant now states that his father was born on a British registered ship en route from the United Kingdom to New Zealand in 1897, that he therefore qualified as a CUKC by virtue of s.12(2) of the 1948 Act as set out in paragraph 4 above and that he is now a British citizen. He can however provide no corroborative evidence of his claim. The Secretary of State has no discretion to waive the requirements of the 1948 and 1981 Acts. The relevant correspondence in relation to this claim not exhibited by the Claimant is at pages 54 to 59.

....

16. The distinction the Claimant seeks to draw between the descriptions of Adelaide as being in 'Australia', 'South Australia' or in the 'British Crown Colony of South Australia' is of no substance. The distinction would have made no difference to any of the Claimant's various applications. The key question in so far as the claim that he is qualified as a CUKC by virtue of s.12(2) of the 1948 Act is concerned is the veracity of the claim that his father was born on a British registered vessel. As to this it is the Claimant's previous statements detailed in paragraph 15 above which suggest that the claim is not well-founded.

17. The Claimant seeks to suggest in paragraph 4 of his Detailed Statement of Grounds [page 15 of his bundle] that 'no such evidence of the birth even existed in 1897' and that adoption arrangements were 'totally unregistered and unrecorded' and that such evidence should not be required. This is wholly contradictory to his statement in his 'Statement of Facts' at (B) in the first paragraph under heading 1 [see page 8 of his bundle] that he presented 'original papers relating to his Father's adoption in 1897, including his original certificate of birth issued in 1897 by the Master of the British-registered vessel on which he had been born'. This discrepancy casts considerable doubt on the veracity of his claim.

18. It is also not credible that, if proof that his father was born on a British-registered vessel existed (and it is likely that it did exist - the Registrar General has custody of records of births and deaths on British-registered ship since 1 July 1837), it would have been deliberately destroyed in 1969 as the Claimant states. This is particularly so when the Claimant states that the matter was raised again in 1973 (see paragraph 3 page 14 of his bundle] albeit that the Defendant denies that the matter was in fact so raised (there is no record that the Claimant contacted the Home Office at any time between March 1971 and July 1975).

19. Given the discrepancies in the Claimant's statements detailed above it is not appropriate for the Secretary of State to accept the Claimant's uncorroborated affidavit as sufficient proof of the Claimant's entitlement."

7. In paragraph 15 of his grounds of opposition, the Secretary of State sets out a list of those occasions on which the claimant's file shows that, on every occasion on which he has been asked to give his father's place of birth, he has given it as Australia, South Australia or British Crown Colony of South Australia.
8. The application came before Sir Richard Tucker at an oral hearing on 4 July 2002. The judge refused that application. He directed himself that he had to consider whether the claimant had an arguable case sufficient to go for hearing on a substantive application. He went on to say this, at paragraph 4:

"The claimant has made it clear that he does not suggest irrationality on the part of the Home Secretary. His claim is based on the Home Secretary's failure to apply the provisions of Article 6 of the European Convention on Human Rights. But before any consideration of that Article comes into play, the Secretary of State of course has to consider the application on its merits; and those I briefly examine bearing in mind that the present claim is based on birth on board a ship."

9. The judge went through some of the documentary material in this case and said at paragraph 12 of his judgment:

"Therefore, with all that material before him, I ask, on the merits, did the Secretary of State come to a correct decision or is it capable of being impugned in judicial review proceedings? There can only be one answer to that question - he was fully entitled to conclude that the assertion that the claimant's father was born on board a British ship is unfounded. That is not to say that the claimant is deliberately lying or anything of that sort, but that he does not have the evidence to support his assertion."

10. He then considered the applicant's submission that the Secretary of State was in breach of his obligations under Article 6 to set up an independent tribunal. He referred to the decision of the European Court of Human Rights in Maaouia v France (App No 39652/98 reported at 9 BHRC 205) and to a decision of the Immigration Appeal Tribunal under the chairmanship of Collins J in MNM v Secretary of State (handed down on 1 November 2000). Those decisions show that, in immigration cases at least, Article 6 of the Convention is not engaged. As Collins J put it, Strasbourg jurisprudence establishes that the correct approach is to distinguish between private law rights which are within Article 6(1) and public law rights which are not. Sir Richard Tucker accepted the submission made on behalf of the Secretary of State that there was no relevant distinction between immigration cases and citizenship cases. Accordingly he refused the application.
11. In the grounds of appeal set out in section 7 of his appellant's notice filed on 19 July 2002, the applicant argues, under paragraph 1, that:

"Residents of the United Kingdom have civil rights which aliens seeking entry into the UK do not have. Therefore, there is an arguable case that such residents who are in dispute with the Home Secretary over their claims to citizenship (other than by naturalisation) should have the right under Article 6 to an adjudication by an independent and impartial tribunal established by law."

12. He expands that point in his skeleton argument. It is said that applications for citizenship by those with the right of residence in the United Kingdom are applications for recognition of a civil right and are fundamentally different from applications by those who have no right to be in the United Kingdom but who seek leave to enter or leave to remain. The applicant also points to the fact that in immigration cases there is an established appeal procedure, whereas in citizenship cases it is said that there is no such procedure. The only means of challenging the Secretary of State's decision is by way of judicial review.
13. If this application were confined to a challenge to the Secretary of State's decision not to reopen the question of citizenship on the basis of the contention now advanced that the applicant's father was born on a British registered ship, it would be hopeless. But I am not prepared to hold, without much more assistance than the applicant can provide on an application of this nature, that the decision of the Court of Human Rights in Maaouia v France makes it unarguable that Article 6 is engaged where the right claimed is a right to be recognised as a citizen. It seems to me at least possible that the right to be recognised as a citizen is a civil right within the scope of Article 6. It also seems to me to be of importance that that question should be the subject of an authoritative decision in this court. I am satisfied that the need for that question to be considered by this Court does constitute a compelling reason why an appeal should be heard. I confine the permission which I give to the question raised by ground 1 in section 7 of the appellant's notice.
14. Ground 2 asserts that:

"There is also an arguable case that the Home Secretary is breaching natural justice by failing in his duty to maintain the proper records of the entry and entry claims of the appellant from his first entry into the UK on 8 July 1969."

15. In my view, there is no arguable case that there has been a breach of natural justice in this case. It may well be that there has been an administration error; but that is not at all the same thing. I accept, of course, that there would be a potential breach of natural justice if the Home Secretary failed to take account of the appellant's contention as to what happened on 8 July 1969 in circumstances where the Secretary of State does not himself have to contradict it. But that is not a breach upon which the applicant relies.
16. Before leaving the matter, I should add two things. The fact that I give permission to appeal should not be taken by the applicant as any indication or encouragement that I take the view that the Secretary of State's decision in relation to the evidential question is capable of being challenged on the merits. Second, that, in giving permission, I would encourage the applicant to take advantage of the scheme operated by the Bar pro bono unit which enables litigants in person who are given permission by this court to appeal to this court, will be provided with representation if so required. It would assist this Court if that representation was provided in this case. It might also assist the applicant.
Order: Permission to appeal granted. To be heard before two Lords Justices. Time estimate 4 hours.