England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Judge of the Upper Tribunal Digney
IA/25969/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 March 2016

Lord Justice Moore-Bick :

Introduction

1. This appeal is concerned with the intricacies of the legislation governing the acquisition of what is known as 'the right of abode', that is, the unrestricted right to live in this country and to enter and leave it without the need to obtain any kind of formal grant of leave under the legislation governing the movement of those who are not British citizens.
2. The respondent, Mr. Ikponmwosa Ize-Iyamu, was born in Nigeria on 23^rd July 1975. His father had been born in Nigeria on 28^th April 1933; his mother had been born in what was then St. Kitts, Nevis and Anguilla (now St. Kitts and Nevis) on 8^th April 1941. By virtue of section 1 of the British Nationality and Status of Aliens Act 1914 each of the respondent's parents thereby acquired the status of a natural-born British subject.

The British Nationality Act 1948

3. On 30^th July 1948 Parliament passed the British Nationality Act 1948, which established for the first time the status of citizen of the United Kingdom and Colonies. By virtue of section 4 a person born within the United Kingdom and Colonies after the commencement of the Act thereby became a citizen of the United Kingdom and Colonies and by virtue of section 12(1) a person who was a British subject immediately before the date of commencement of the Act became a citizen of the United Kingdom and Colonies if he had been born within the territories of the United Kingdom and Colonies and would have been a citizen of the United Kingdom and Colonies if section 4 had been in force at the time of his birth. As a result, the respondent's mother and father both became citizens of the United Kingdom and Colonies on 1^st January 1949 when the Act came into force. Under the British Nationality Act 1948 citizens of the United Kingdom and Colonies had the status of British subjects and were free to enter and remain in this country at will.

The Nigeria Independence Act 1960

4. Nigeria became independent on 1^st October 1960. By section 2(2) of the Nigeria Independence Act 1960 those who had been citizens of the United Kingdom and Colonies immediately before that date ceased to have that status if under the law of Nigeria they became citizens of Nigeria on that date and they themselves or their fathers or grandfathers had been born in the territories comprised in Nigeria. Under the Constitution of Nigeria all those who had been born in the former colony and were citizens of the United Kingdom and Colonies on 30^th September 1960 became citizens of Nigeria on 1^st October 1960. The combined effect of these provisions was that the respondent's father ceased to be a citizen of the United Kingdom and Colonies on 1^st October 1960.

The Immigration Act 1971 – the right of abode

5. The concept of the right of abode is central to the Immigration Act 1971. The Act, which superseded the Commonwealth Immigrants Acts 1962-1968, imposed restrictions on the number of British subjects who could enter and remain in this country as of right. Section 1 provided (and continues to provide) that those who have the right of abode are free to live in and to come into and go from the United Kingdom without let or hindrance, but that those not having the right of abode may live, work and settle in the United Kingdom only by permission and subject to the regulation and control imposed by the Act.
6. Section 2(1) of the Act defined those who had the right of abode. The section has since been amended, but for present purposes it is sufficient to note that as originally enacted such persons included (i) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth in the United Kingdom or any of the Islands, (ii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself acquired it by birth in the United Kingdom or any of the Islands and (iii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself been born to a parent who "so had it". (The islands to which the section referred were the Channel Islands and the Isle of Man: see section 33. In the rest of this judgment I shall refer for convenience simply to "the United Kingdom".) Subject to the meaning of the expression "so had it" in section 2(1)(b)(ii), to which it will be necessary to return, it can be seen that the broad scheme of the legislation was that the right of abode was restricted to those citizens of the United Kingdom and Colonies who had acquired that status in the United Kingdom, or one of whose parents or grandparents had himself acquired that status in the United Kingdom. Section 2 also made provision for the acquisition of the right of abode by adoption, naturalisation and registration, but none of those is relevant for present purposes.
7. Section 3(2) of the 1971 Act required the Secretary of State to draw up rules governing the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of those who did not have the right of abode and required leave in order to do so. Section 1(5) of the Act provided that the rules should not make Commonwealth citizens already settled in this country any less free to come into and go from the United Kingdom than they had been before the Act was passed.

The British Nationality Act 1981

8. Further changes to the law governing the acquisition of British citizenship and the right of abode were made with effect from 1^st January 1983 by the British Nationality Act 1981. By section 11 those who immediately before the commencement of the Act had been citizens of the United Kingdom and Colonies and had the right of abode under the Immigration Act 1971 as then in force became British citizens when the Act came into force. A person born in the United Kingdom after that date became (and still becomes) a British citizen only if at the time of his birth his father or mother was a British citizen or was settled in the United Kingdom (section 1). A person born outside the United Kingdom after commencement became a British citizen only if his father or mother had acquired British citizenship otherwise than by descent. (Special provision was made for children born to parents serving overseas as members of the armed forces or civil servants.) The 1981 Act has been amended on more than one occasion, but for present purposes it is necessary to refer only to the current form of section 4C which resulted from amendments introduced by section 45 of the Borders, Citizenship and Immigration Act 2009 in order to remove the discriminatory effect of section 5 of the British Nationality Act 1948. (That section provided for the acquisition of the status of citizen of the United Kingdom and Colonies by descent from a person's father, but not his mother.) By section 4C those born before 1983 are able to acquire British citizenship by registration, subject to certain conditions, two of which have particular relevance to the present case. Of those, the first is that the applicant would at some time before 1^st January 1983 have become a citizen of the United Kingdom and Colonies under section 5 of the 1948 Act if that section had also provided for the acquisition of citizenship by descent from a person's mother; the second is that immediately before 1^st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971. The 1981 Act also amended section 2 of the Immigration Act 1971, to which it will be necessary to refer in detail in a moment.

The respondent's application

9. On 25^th April 2013 the respondent applied pursuant to the regulations made under section 10 of the Nationality, Immigration and Asylum Act 2002 for a Certificate of Entitlement to the right of abode in this country. His application was refused by the Secretary of State on the grounds that neither of his parents had been born, adopted, registered or naturalised in the United Kingdom at the time of his birth and that, although his mother had acquired the right of abode in this country, she had acquired it otherwise than by birth, so that he could not acquire it by descent from her.

The First-tier Tribunal

10. The First-tier Tribunal considered the legislation to which I have referred in detail. It appears to have been influenced by the provisions of section 1(5) of the Immigration Act 1971 that Commonwealth citizens settled in this country should not be any less free to enter or leave this country than before. It concluded in paragraph 61 of its decision that both the respondent's parents had become citizens of the United Kingdom and Colonies and thereby gained a right of abode. It also held that each of the respondent's parents had been born to parents who had the right of abode (paragraph 62). The respondent's mother, as a citizen of the United Kingdom and Colonies who had the right of abode, became a British citizen when the British Nationality Act 1981 came into force (paragraph 64). Similarly, the tribunal held that the respondent's father, who had previously acquired the status of a citizen of the United Kingdom and Colonies, automatically became a British citizen and was able to transfer that citizenship to the respondent under section 5 of the 1948 Act and section 11 of the 1981 Act (paragraph 67). It therefore allowed the respondent's appeal.

The Upper Tribunal

11. The Secretary of State appealed to the Upper Tribunal, which held that, for the purposes of section 5 of the 1948 Act, section 45 of the Borders, Citizenship and Immigration Act 2009 required descent through a mother to be treated in precisely the same way as descent through a father (paragraph 6). The tribunal appears to have treated paragraphs 55 and 56 of the First-tier Tribunal's decision as containing its reasoning, although in fact they contain part of the submissions made on behalf of the respondent. Nonetheless, the Upper Tribunal appears to have adopted them as containing a sound analysis of how the respondent had acquired the right of abode by descent from his mother. The tribunal was rather more cautious about the respondent's claim to have acquired the right of abode by descent from his father, but found it unnecessary to decide the point. It therefore dismissed the appeal.

The present appeal

12. This is the Secretary of State's appeal against the decision of the Upper Tribunal. We were greatly assisted by Mr. Hare, who guided us through the complex statutory provisions, and by Mr. Malik, whose submissions on behalf of the respondent were succinctly and clearly made. The reasoning contained in the Secretary of State's letter rejecting the respondent's application is brief and that of both tribunals is rather opaque. Although it may be strictly unnecessary for the determination of the appeal, therefore, I think that it may be helpful to examine the different routes by which the respondent might seek to claim the right of abode in order to see whether any of them enable him to succeed.
13. The starting point is section 2(1) of the Immigration Act 1971, which is central to the appeal, both in its original and amended forms. As amended by the British Nationality Act 1981 it now provides in its material parts as follows:

"2.— Statement of right of abode in United Kingdom.

(1) A person is under this Act to have the right of abode in the United Kingdom if—

(a) he is a British citizen; or

(b) he is a Commonwealth citizen who—

(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and

(ii) has not ceased to be a Commonwealth citizen in the meanwhile."

14. The section thus provides two principal routes to obtaining the right to abode: by virtue of being a British citizen or by being a Commonwealth citizen who satisfies the requirements of subsection (1)(b)(i). It is convenient to consider first the route of British citizenship, which in principle the respondent could have acquired by descent from his father or his mother.

(a) British citizenship by descent from his father

15. As I have already mentioned, the respondent's father became a citizen of the United Kingdom and Colonies on the coming into force of the British Nationality Act 1948, but he had been born in Nigeria and lost his status as a citizen of the United Kingdom and Colonies on 1st October 1960 when Nigeria became independent. When the respondent was born in 1975, therefore, his father was no longer a citizen of the United Kingdom and Colonies and was unable to pass that status on to him. As a result the respondent could not acquire British citizenship by descent from his father under section 11 of the 1981 Act (see paragraph 8 above).

(b) British citizenship by descent from his mother

16. The respondent could acquire British citizenship by descent from his mother only by registration in accordance with the provisions of section 4C of the British Nationality Act 1981 and in order to do so he would first need to have made the necessary application. He has not in fact done so, but in any event such an application would be bound to fail because sections 4C(3) and 4C(3A) make it necessary for him to show not only that he would have become a citizen of the United Kingdom and Colonies under section 5 of the 1948 Act, if that section had provided for the acquisition of citizenship of the United Kingdom and Colonies by descent from his mother, but also that immediately before 1st January 1983 he would as a citizen of the United Kingdom and Colonies have had the right of abode by virtue of section 2 of the Immigration Act 1971 as it was then in force.
17. I have referred in paragraph 6 of this judgment to the effect of section 2(1) of the Immigration Act 1971 as originally enacted and as in force on 31^st December 1982. The material parts then provided as follows:

"2—(1) A person is under this Act to have the right of abode in the United Kingdom if—

. . .

(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—

(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it;"

In order for the respondent to have acquired the right of abode under that section, therefore, it would be necessary for his mother at the date of his birth to have acquired the status of a citizen of the United Kingdom and Colonies in the United Kingdom by birth, adoption, naturalisation or registration (none of which was the case) or to have been born to or legally adopted by a parent who at the time of her birth or adoption "so had it."

18. The meaning of the expression "so had it" in section 2(1)(b)(ii) was one of the issues in the appeal. Mr. Malik submitted that it meant no more than "also had it" and could therefore be satisfied if one of the respondent's maternal grandparents had acquired citizenship of the United Kingdom and Colonies as a result of having been born in one of the colonies, including, presumably, St Kitts, Nevis and Anguilla. In my view, however, that is clearly not what it means. The whole thrust of section 2 as originally enacted was to limit the right of abode to those who had a direct or indirect link to this country through the acquisition here of the status of a citizen of the United Kingdom and Colonies. It would be very strange if a child could inherit the right of abode from a grandparent who had acquired citizenship of the United Kingdom and Colonies abroad, but from a parent only if he or she had acquired it in this country. In my view the context in which the expression is found makes it quite clear that it is meant to refer to a grandparent who had acquired citizenship "in the same way", i.e., in this country and not elsewhere. The case of R (Bhawan) v Secretary of State for the Home Department [2009] EWHC 469 (Admin), to which our attention was drawn and in which the expression was interpreted as having that meaning, was in my view correctly decided.

(b) Commonwealth citizenship

19. The alternative ground on which the respondent might seek to claim the right of abode is that on which he did in fact seek to rely, namely, that he is a Commonwealth citizen who immediately before the commencement of the British Nationality Act 1981 had the right of abode by virtue of section 2(1)(d) of the Act as then in force. However, in my view he does not qualify under this head either. Section 2(1)(d) as in force on 31^st December 1982 provided as follows:

"(1) A person is under this Act to have the right of abode in the United Kingdom if—

. . .

(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands."

20. Once again, there is a statutory requirement that the respondent's mother should have acquired citizenship of the United Kingdom and Colonies by birth in this country, which cannot be satisfied.
21. In an attempt to circumvent these difficulties Mr. Malik submitted that the clear intent of section 45 of the Borders, Citizenship and Immigration Act 2009 was to remove the discriminatory effect of section 5 of the British Nationality Act 1948, which should therefore now be interpreted in relation to mothers in the same way as to fathers. In effect, he submitted, "father" should be read as meaning "father or mother".
22. Although I accept that the purpose of section 45 was to remove the discriminatory aspect of section 5 of the 1948 Act, I am unable to accept his submission. The fact is that Parliament chose to achieve that objective in a particular way and subject to certain conditions, which the respondent is unable to satisfy. Nor, in my view, can the respondent obtain any comfort from section 1(5) of the Immigration Act 1971. The subsection was repealed by the Immigration Act 1988, but in any event it did not create rights, let alone the right of abode, in favour of children whose parents were settled in this country when the Act came into force. It simply placed certain limits on the Secretary of State's rule-making powers.
23. There is one final matter which it is necessary to touch on. It is a striking feature of this case that the respondent's brother has obtained registration as a British citizen, which has understandably caused the respondent to feel that he has been treated unfairly in having his application for a Certificate of Entitlement rejected. We have not had to consider the circumstances surrounding his brother's application and say nothing about it, save that the fact that it was successful cannot give rise to any legitimate expectation on the part of the respondent of a kind that would render the refusal of his own application an abuse of power or entitle him to the remedy he seeks.
24. I am satisfied that the respondent does not have the right of abode and is therefore not entitled to a Certificate of Entitlement. Both the First-tier Tribunal and the Upper Tribunal reached the wrong conclusion because they failed to have regard to the detailed language of the legislation. For the reasons I have given I would allow the Secretary of State's appeal.

Lord Justice Beatson :

25. I agree.

Lord Justice Underhill :

26. I also agree.