England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th March 2009

The Hon Mr. Justice Burnett:

Introduction

1. This is an application for Judicial Review of a decision of the Secretary of State for the Home Department communicated to the Claimant in a letter dated 30^th July 2008 whereby her application for registration as a British citizen under Section 3(1) of the British Nationality Act 1981 was refused.
2. The essential facts in this case are not in dispute. The Claimant is a Mauritian national who was born on 4^th September 1990. She arrived in the United Kingdom with her parents on 9^th November 2003 and has lived here ever since. Both she and her parents were granted indefinite leave to remain in the United Kingdom on 30^th April 2008.
3. On 10^th June 2008 the Claimant, who was then aged 17, applied for registration as a British citizen. She was at that time a minor. In her application, she stated that both her parents were Mauritian. She set out the various addresses at which she had lived in the United Kingdom. She described her educational position, namely she was a student at Wallington High School for girls. She described the voluntary work she had been engaged in for Cancer Research, her involvement in the Duke of Edinburgh's Award Scheme and also her membership of the Sutton Youth Parliament since October 2007. The Claimant's identity and the details given in the form were verified by a teacher from her school and also her General Practitioner.
4. The letter refusing the application expressed the reasoning of the Secretary of State in the following way:

"I refer to the application for the registration of Sheena Ramalingum as a British citizen under Section 3(1) of the British Nationality Act 1981.

The registration of minors under this provision is at the Secretary of State's discretion. Normally, minors will not be registered if, as appears in this case, neither parent is a British Citizen.

The application has nevertheless been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However sufficient grounds could not be found to exercise discretion in this case. The application has therefore been refused."

The letter went on to note that the Claimant could reapply when she reached the aged of 18, if she satisfied the necessary criteria. One of those criteria is that an adult seeking naturalization must allow at least a year to elapse following the grant of indefinite leave to remain before making the application. It follows that both the Claimant and her parents will anyway be at liberty to apply for naturalization in On 1^st May 2009.

Applicable Provisions

5. Section 3 of the British Nationality Act 1981 is concerned with acquisition of British citizenship by registration by minors. Section 3(1) provides:

"If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen."

Section 3 goes on to deal with a number of particular circumstances where a minor will be entitled to registration stemming, in the main, from his parents' status. Whilst Section 3(1) contains a broad discretion to register a minor as a British citizen, the exercise of that discretion is considered by reference to the Secretary of State's policy which is contained in "Volume 1: The British Nationality Act 1981 – Case Working Instructions" at Chapter 9. The chapter is entitled "Registration of Minors at Discretion". The material parts of that policy are as follows:

"9.1.4. A number of other factors are normally taken into account in deciding whether or not to register a minor under this provision. This Chapter gives guidance about how discretion should normally be used under the law.

9.1.5. IT IS IMPORTANT TO REMEMBER that the guidance in this Chapter does not amount to hard and fast rules. It will enable the majority of cases to be dealt with, but because the law gives complete discretion each case must be considered on its merits. All the relevant factors must be taken into account, together with any representations made to us. If we do not, we are open to criticism for not exercising our discretion reasonably.

9.1.6. It is therefore possible to register a minor under circumstances that could normally lead to the refusal on an application or to refuse when normally a child might be registered if this is justified in the particular circumstances of any case.

9.17.9. We should normally expect that:

At least one parent is a British citizen; or

One of the parents has applied to be registered or naturalised as a British citizen and the application is to be granted (if the parent's application is refused, we should normally refuse the minor's application as well)

and

Both parents are settled in the United Kingdom (see Annex F to Chapter 6); or

(if the parents have divorced or separated and the child does not have ongoing contact with the other parent) the parent having the day-to-day responsibility for the child is, or is about to become, a British citizen; or

(if the solely-responsible parent is settled here but not a British citizen) there are good reasons why registration would be appropriate, taking into account the examples given in 9.17.10 below.

9.17.10. It will rarely be right to register a child neither of whose parents is or is about to become a British citizen. However, each case should be considered on its merits, and there may be exceptional circumstances to justify registration in a particular case, such as for example:

Older teenagers who have spent most of their life here, or

Minors who require British citizenship in order to follow a particular career (e.g. sport, Armed Forces, etc)

and

The minor's future can clearly be seen to lie in the United Kingdom, and, in relevant cases only,

The person making the application has day-to-day care and responsibility for the child's upbringing, and either is, or is about to become a British citizen but see section 9.21 on applications made by guardians.

9.17.11 An application which falls outside these criteria should not normally be approved, even if there are British citizen siblings or siblings with entitlements to registration as a British citizen, unless we are satisfied that registrations would be in the child's best interests." (original emphasis)

6. The Secretary of State does not seek to dispute the Claimant's general suitability for British citizenship. I should note that there was an issue raised in correspondence concerning whether all the testimonials referred to by the Claimant had been sent or received by the Secretary of State but that is a sideshow which does not affect the legal issues which arise.

The Claimant's Submissions

7. The Claimant issued these proceedings a few days short of her 18^th birthday. Her father acted as her litigation friend and he appeared to advance the claim on behalf of his daughter. I am grateful for the clarity of his submissions and the economy with which they were made particularly as he was aware of the hearing only the day before.
8. The Claimant submits that in taking account of the nationality of her parents at the time she applied for certification, the Secretary of State has acted unlawfully because she has discriminated against her on the grounds race for the purposes of the Race Relations Act 1976 ["the 1976 Act"]. A subsidiary argument is advanced by reference to Article 14 of the European Convention on Human Rights. Additionally, the Claimant submitted that the decision of the Secretary of State was irrational.
9. There was a time when the provisions of the Race Relations Act were expressly disapplied in the case of both immigration and nationality decisions. By virtue of amendments to the 1976 Act introduced by the Nationality, Immigration and Asylum Act 2002, that disapplication applies now only to immigration decisions and not nationality decisions. So, it is lawful for the Secretary of State to apply different conditions for entry purposes depending on the citizenship enjoyed by the applicant. But when considering the grant of British citizenship, the Secretary of State may not discriminate on grounds of race, as defined by the 1976 Act.
10. Section 19B(1) of the 1976 Act provides:

"It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."

There is no doubt that the Secretary of State is a public authority for these purposes. Discrimination is defined by Section 1 of the 1976 Act:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it

The term "racial grounds" is defined in Section 3(1) as meaning colour, race, nationality or ethnic or national origins.

Section 3(4) provides:

"A comparison of the case of a person of a particular racial group with that of a person not of that group under Section 1(1) ….. must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

11. Mr Ramalingum submits on behalf of his daughter that in taking account of his and his wife's nationality in coming to a decision whether to grant a certificate of citizenship to the Claimant, the Secretary of State is guilty of discrimination on racial grounds, at least in respect of national origin because the outcome would have been different if one or both had been British citizens, albeit by naturalization.
12. The first point to note is that all applicants for certification under Section 3(1) of the British Nationality Act 1981 are necessarily not British citizens. There is no question here of this Claimant being treated differently from any other on account of her race, colour, nationality or ethnic or national origins. All minors who apply for certification under the discretionary provisions are subjected to the same policy whoever and whatever they are. So there is no discrimination on account of the Claimant being Mauritian.
13. Mr Hall, who appeared on behalf of the Secretary of State, was prepared to concede for the purposes of the argument that the nationality of the Claimant's parents might be regarded as the national origin of the Claimant herself, so that to treat her differently because neither of her parents was a British citizen might amount to discrimination for the purposes of the 1976 Act. In any event, to treat someone differently on account of the race etc. of someone to whom she is connected would amount to racial discrimination. Nonetheless, he submitted this is not a case where the Claimant is being discriminated against on account of the nationality or national origin of either her parents or herself.
14. In her speech in R v Immigration Officer at Prague Airport ex parte European Roma Rights Centre [2005] 2 AC 1 at paragraph [73] Lady Hale distilled the ingredients of unlawful discrimination as:

"(i) a difference of treatment between one person and another person (real or hypothetical) from a different sex or racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on sex or racial grounds. … Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant. If there is no, or no satisfactory, explanation, it is legitimate to infer that the less favourable treatment was on racial grounds…. If the difference is on racial grounds the reasons or motive behind it are irrelevant: see for example, Nagarajan v. London Regional Transport [2000] 1 AC 501. "

An example where there is different treatment of people which springs from their nationality was considered by the Court of Appeal in R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289. The case concerned detainees at Guantanamo Bay and the contrast between the Government's willingness to make diplomatic representations to the US Government to release British nationals, but its refusal to do the same for individuals who had been resident in the United Kingdom but were not nationals. It was contended that the distinction, being founded on nationality, amounted to unlawful racial discrimination. The Court of Appeal rejected that argument holding that the difference in treatment was not founded on nationality but on the fact that the claimants as non-nationals were not entitled as a matter of international law to protection in a state to state claim. As a result, their circumstances were materially different for the purposes of section 3(4) of the 1976 Act. In coming to that conclusion, the Court of Appeal asked itself the question: why were the detainee claimants treated differently from British nationals? That was a paraphrase of a question Lord Steyn had posed in Nagarajan, at 521 – 522 and which Lady Hale had also considered in Roma Rights.

15. Applying the same approach in this case one asks: why did the Secretary of State in applying her policy treat the Claimant less favourably than she would another with a parent who was a British citizen, or was about to become one? The answer reveals itself from a consideration of the terms of paragraph 9.17.9 and 9.17.10 of the policy. Those paragraphs are concerned with two factors. The first is family cohesion and the second the closeness of family ties to the United Kingdom in the context of a child's application for registration. Thus, if a child applicant were successful in her application to become a British citizen but neither parent enjoyed, or was about to enjoy, the same status she would become the only member of her family who was a British citizen. That carries with it potentially undesirable consequences if a child and its parents do not share the same nationality. It tells against family cohesion. The fact that family cohesion in the interests of the child is the object of the policy is clear from the way in which it deals with the citizenship (or prospective citizenship) of one but not both parents together with its treatment of divorced and separated parents. Additionally, the fact that the Claimant's parents were not yet able to apply for naturalisation under section 6 of the Nationality Act 1981 at the time of her application, even though, as it now appears, they intend to do so at the first opportunity, was an indication of the strength of connection of the family unit with the United Kingdom.
16. Looked at, therefore, through the language of Section 3(4) of the 1976 Act, the Secretary of State submits that the respective relevant circumstances of a child with a parent who is a British citizen and one without are not the same. The child without a British citizen parent has not been treated differently from the child with such a parent because of parental race/nationality, but because one has a secure British-based integrated family unit and the other has not. The Secretary of State was considering the best interests of the child and the strength of connection to the United Kingdom.
17. Approaching the question through Lady Hale's formulation of the ingredients of unlawful discrimination, in my view there is a material difference between the Claimant's position and that of a notional child applicant who has a parent who enjoys British Citizenship or has applied for naturalisation. Additionally, the reasons for the different treatment are not, in truth, based on nationality. For these reasons, the policy of the Secretary of State, and its application in this case, did not entail a breach of Section 1(1)(a) read with Section 19b(1) of the 1976 Act.
18. Although the Claimant advanced an additional argument founded upon Article 14 of the ECHR, it adds nothing to the discrimination claim under the 1976 Act. Article 14 confers no free-standing right, but must be considered within the ambit of one of the substantive rights. There is no requirement for an actual breach of the substantive right. In R v. Secretary of State Home Department ex parte Montana (unreported 23 November 2000), the Court of Appeal rejected a submission that the concept of family life for the purposes of Article 8 included the right of a child to have the same citizenship as its parents. Here, of course, the Claimant is seeking to achieve a different citizenship from her parents, at least in the short term. However, the Court of Appeal went on to decide that the "mere fact that citizenship is withheld cannot of itself be either a failure to respect or interference with family life" (see paragraph 19). Nonetheless, the Court went on to assume, without deciding, that the policy in play in that case came within the ambit of Article 8. I am prepared to make the same assumption without deciding in this case. But for the same reasons that support the conclusion there was no discrimination for the purposes of the 1976 Act, there is enough of a relevant difference between the child with a British citizen parent and one without to justify the different treatment for the purposes of Article 14. That short formulation comes from paragraph [31] of Lord Hoffman's speech in R(Carson) v. Work and Pensions Secretary [2006] 1 AC 173.
19. Mr. Ramalingum sought to put the argument additionally upon grounds of rationality, which for the same reasons cannot succeed. Finally, he submitted that there was a legitimate expectation flowing from the amendments made to the 1976 Act by the Nationality, Immigration and Asylum Act 2002, which required the Secretary of State to disregard questions of the parents' nationality altogether. If, as I have held, the policy reflected in the instruction set out above as applied in this case does not contravene the 1976 Act, then there can be no enforceable legitimate expectation founded on the language of the Act that achieves the converse result.
20. For all these reasons, this application for Judicial Review is dismissed. The question of costs was canvassed at the end of the hearing. Both parties recognised that costs should follow the event. In those circumstances, the defendant will have her costs against the litigation friend until 4^th September 2008 and thereafter against the claimant. It will, of course, be a matter for the Secretary of State whether steps are taken to enforce the costs order in circumstances where the next friend was relieved from paying a court issue fee on financial grounds.