England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/08/2016

MRS JUSTICE NICOLA DAVIES:

1. The claimant brings proceedings for judicial review in order to challenge the decision of the defendant made on 17 April 2015 in which she revoked the claimant's certificate of entitlement to a right of abode in the United Kingdom. Permission was granted by Wilkie J following an oral permission hearing.
2. It is the claimant's case that he was born on 3 July 1968 at St Mary's Hospital Paddington. His birth name was Oladayo Olawanle Akinselure. A person by the same name, but not the claimant, is registered as having died on 20 October 1973. It is the claimant's case that he was taken to Nigeria by his mother in 1976 later moved to Gambia where he obtained his first British passport in 1998. In the same year he moved back to the UK and has remained here ever since.
3. The spouse of the claimant was granted indefinite leave to remain in the UK on 4 May 2007. The claimant has four children with her all of whom are minors, British citizens, born in UK. The claimant contends that the Nigerian authorities have retained his previous Nigerian passport and have refused to issue a new one.
4. In 2000 the claimant changed his name by deed, to Oladayo Alfred Akinfolarin. He applied for a new British passport to reflect his new name which was issued and was valid from 7 June 2000 to 17 February 2008. In 2008 the claimant made application to renew his British passport, a check appears to have revealed the October 1973 death certificate, the matter was investigated by the police. By a letter dated 8 October 2009 the police confirmed that all of the documentation which the claimant had presented to the police, no doubt in respect of their investigation, had been returned and verified. The letter stated "these documents appeared authentic and as a result of the Police investigation I wish to inform you that this matter is now NFA (No further Action)."
5. The claimant first issued judicial review proceedings on 6 March 2011 (CO/6411/2011) seeking to challenge various decision letters issued by the Secretary of State refusing to issue him with a renewed passport. The proceedings were concluded by the judgment of Burnett J, as he then was, on 1 December 2011 when he refused permission to apply for judicial review holding that the Secretary of State was entitled to be cautious about issuing a passport to an individual when a serious question mark hangs over his identity. Burnett J held that the claim, namely that the Secretary of State's refusal to issue a renewed passport was unlawful, had no legal merit. He also proffered advice to the claimant to obtain evidence relating to the recording of the death in 1973.
6. On 27 January 2006 the claimant made an application for a certificate of entitlement to right of abode in the UK which was granted on 17 February 2006. On 27 January 2015 the claimant made application for registration as a British citizen. The application was made in his changed name. In his written application the claimant declared the change of name. On 17 March 2015 the defendant wrote to the claimant seeking evidence that his Nigerian passport had been withheld by the Nigerian authorities as he claimed. No evidence has been provided from the Nigerian authorities.
7. By a letter dated 17 April 2015 the Home Office, UK Visas and Immigration, on behalf of the defendant, wrote to the claimant refusing the application. The letter included the following:

"A full review of your client's application for Right of Abode in the United Kingdom has now been made. Your application for Right of Abode was issued on the basis of a birth certificate submitted in the name of Oladayo Olawanle Akinselure born 03/07/1968 in London. It is noted that he later changed his name to Oladayo Alfred Akinfolarin. A subsequent investigation by another government department found a death certificate for Oladayo Olawanle Akinselure was issued on 20.10.1973.

Accordingly the vignette previously issued to your client conferring right of abode has now been revoked as no evidence has been seen to establish he is entitled to right of abode in the United Kingdom under section 2 of the Immigration Act 1971. …..

Whilst I appreciate your client has produced a birth certificate to support his application, the Secretary of State cannot be satisfied as to his entitlement to the use of this identity as a death certificate was subsequently issued on 20.10.1973. ……"

Judicial Review Proceedings

8. The claimant issued these judicial review proceedings on 9 July 2015. He originally advanced three grounds, permission has been granted on one, namely that the revocation by the Secretary of State of the certificate of entitlement to right of abode in the United Kingdom is unlawful or irrational. He has no permission to challenge the refusal of his application for registration as a British citizen. The sole issue for this court is whether the Secretary of State acted unlawfully or irrationally in revoking the claimant's certificate of entitlement to right of abode in the United Kingdom on 17 April 2015.

The Law

Immigration Act 1971

9. Section (1) identifies the rights of those who have right of abode in the United Kingdom in these terms:

"All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. "

The statutory criteria for right of abode are set out in section 2 of the Immigration Act 1971, which provides:

(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.

(2) In relation to Commonwealth citizens who have the right of abode in the United Kingdom by virtue of subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be construed accordingly.

Section 2A provides:

(1) The Secretary of State may by order remove from a specified person a right of abode in the United Kingdom which he has under section 2(1)(b).

(2) The Secretary of State may make an order under subsection (1) in respect of a person only if the Secretary of State thinks that it would be conducive to the public good for the person to be excluded or removed from the United Kingdom.

(3) An order under subsection (1) may be revoked by order of the Secretary of State.

(4) While an order under subsection (1) has effect in relation to a person —

(a) section 2(2) shall not apply to him, and

(b) any certificate of entitlement granted to him shall have no effect.

Section 3(8) and (9) provide:

(8)When any question arises under this Act whether or not a person is a British

citizen, or is entitled to any exemption under this Act, it shall lie on the person

asserting it to prove that he is.

…

(9) A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove it by means of -

(e) a certificate of entitlement.

10. The Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006, so far as relevant, provide:

9. A certificate of entitlement may be revoked by the Secretary of State for the Home Department, an immigration officer, a consular officer or a person responsible for the grant or refusal of entry clearance, where the person who revokes the certificate is satisfied that the person in possession of the certificate (whether or not this is the person to whom the certificate was issued) —

(a) does not have the right of abode in the United Kingdom under section 2(1) of the 1971 Act;

(b) is the holder of:(i) a United Kingdom passport describing him as a British citizen,

(ii) a United Kingdom passport describing him as a British subject with the right of

abode in the United Kingdom,

(iii) an ID card issued under the Identity Cards Act 2006 describing him as a British

citizen, or

(iv) an ID card issued under that Act describing him as a British subject with the right of

abode in the United Kingdom;

(c) is a person whose exercise of his right of abode is restricted under section 2 of the

Immigration Act 1988; or

(d) is a person who is deprived of his right of abode by an order under section 2A of the 1971 Act.

The claimant's case.

11. It is the claimant's case that he has a right of abode. During the course of the hearing counsel on behalf of the claimant stated that he accepted that the claimant was not a British citizen but he has a right of abode. Later in the hearing he resiled from that proposition and stated that the claimant has a right of abode and is therefore a British citizen. As it is the claimant's case that the certificate of entitlement and right of abode are one and the same thing the claimant is a British citizen but he does not have a British passport. Notwithstanding the shift in the stance taken by counsel taken on behalf of the claimant I will proceed upon the basis that it is the claimant's case that he has a right of abode and therefore is a British citizen but he does not have a British passport.
12. The claimant makes two submissions:

A. On a proper interpretation of Section 3 (8) of the Immigration Act 1971 ("the 1971 Act") as the defendant is alleging that the claimant is not entitled to right of abode the burden rests on the defendant to prove the same to the civil standard. Alternatively relying upon the Immigration ( Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 (" the 2006 Regulations"), specifically regulation 9 (a), on a reading of the subsection it is for the Secretary of State to establish that a person does not have a right of abode.

The claimant relies upon a letter dated 29 January 2015 written by the Assistant Director, Customer Service Operations of UK Visas and Immigration, to the claimant's MP which states:

"I can confirm that Mr Akinfolarin has no outstanding applications for Leave to Remain. His application on human rights grounds was discontinued on 3 April 2014, as he currently has Right of Abode in the UK."

The point is taken that the defendant had the judgment of Burnett J by the time this letter was written and was aware of the claimant's position. Thus it is submitted, on the evidence before the court the defendant has not been able to satisfy, to the requisite standard, that the claimant is not entitled to a right of abode and therefore the Secretary of State acted unlawfully in revoking the right of abode.

B. The certificate of entitlement and right of abode are one and the same thing. The claimant relies upon section 3 (9) (e) of the 1971 Act in support of this contention. The section envisages that a person seeking to enter the UK and claiming to have the right of abode therein shall prove it by means of a certificate of entitlement. The claimant also relies upon the previously enacted, since amended, provisions of section 82 of the Nationality Immigration and Asylum Act 2002 which granted a right of appeal from an immigration decision. The immigration decision included the refusal of a certificate of entitlement. The point being that the right of appeal accrues from the refusal of the certificate of entitlement and not from the right of abode thus, it is contended, the certificate of entitlement and right of abode are the same thing.

13. The claimant contends that the certificate of entitlement confers the right of abode it does not confirm it. The Secretary of State in attempting to revoke the right of abode had to do so pursuant to the provisions of section 2(A) of the 1971 Act namely if she was satisfied it would be conducive to the public good for the person to be excluded or removed from the UK.
14. If the claimant is wrong that the certificate of entitlement and right of abode are one and the same the claimant submits that the revocation of the certificate under the 2006 Regulations places the burden on the defendant to prove the issue of precedent fact namely that the claimant does not have the right of abode in the UK.
15. As to section 2 A of the 1971 Act the claimant submits the defendant has not shown that the conditions in that provision apply or have been met. It is the claimant's case that he is who he claims to be and is entitled to right of abode. He has exhausted all avenues to prove the errors in the death certificate moreover the police have previously confirmed the documents he supplied were accurate. The claimant goes further and submits that the death certificate in this case was incorrectly issued. He relied on the authority or Sinha R ( on the application of) The Secretary of State for the Home Department [2013] EWCH 711 Admin where despite the claimant submitting a forged document to satisfy his identity the court held that he was a British national.

The defendant's case.

16. The claimant does not have a right of abode in the United Kingdom. The entitlement to right of abode is governed by the 1971 Act. The Secretary of State has no power to confer right of abode upon someone who does not meet the statutory criteria. Christodoulidou v Secretary of State for the Home Department [1985] Imm AR 179. The criteria are set out in section 2 of the 1971 Act.
17. A certificate of entitlement to right of abode issued by the Secretary of State does not confer a right of abode. It acknowledges a right of abode that the relevant person has pursuant to section 2 of the 1971 Act. Christodoulidou above. The issuing of a passport does not confer nationality, it demonstrates the nationality that the relevant person holds as a matter of law. The person can prove that he has a right of abode by producing a British passport or certificate of entitlement to that right of abode. The claimant does not have a British passport, he had a certificate of entitlement to right of abode which has now been revoked.
18. The claimant submits that his right of abode may not be revoked under section 2 A of the 1971 Act. This misses the fundamental point namely that the Secretary of State has not made a decision to revoke the right of abode. What has been revoked was the vignette namely the certificate of entitlement. It has been revoked as it was issued in error namely on the false basis that the claimant was Oladayo Olawanle, born on 3 July 1968 and who is certified as having died on 20 October 1973. There is no right of abode under section 2 of the 1971 Act. Applying the provisions of the 1971 Act it is the defendant's case that the claimant is not a British citizen because he is not entitled to a British passport. He can only obtain a right of abode if he is a British citizen.
19. The defendant does not accept the claimant's contention that the certificate of entitlement and the right of abode are one and the same. She relies upon regulation 9 of the 2006 Regulations which clearly envisages a revocation of the certificate of entitlement by reference to an individual either not having the right of abode pursuant to section 2 (1) of the 1971 Act (Regulation 9(a) ) or deprivation of a right of abode pursuant to section 2 (A) of the 1971 Act (Regulation (d)). There would be no need for such a distinction or a specific power of revocation if right of abode and certificate of entitlement were the same thing. In any event the distinction is said to be meaningless insofar as the claimant is concerned because such right of abode as had been conferred has now been removed. The revocation by the Secretary of State of the certificate of entitlement is wholly different from revoking the right of abode pursuant to section 2A of the 1971 Act.
20. Separate from the Regulations the Secretary of State has a general power ancillary to her functions under the Immigration Act 1971 to rectify an error. There is nothing irrational or unlawful in revoking a certificate of entitlement given to a person in a mistaken belief that he was someone else.
21. As to the claimant's reliance on the letter sent by UK Visas and Immigration on 29 January 2015 to Stephen Timms MP it was sent before the decision to revoke, it was not intended to be a legal document conferring any rights or privileges, in any event it is not open to the Secretary of State as a matter of law to confer citizenship or right of abode to someone who does not meet the statutory criteria.
22. Relying on the words of section 3(8) of the 1971 Act it was the claimant who was asserting to prove that he was a British citizen thus the burden, was upon him of proving the same.

Conclusion

23. A person's entitlement to a right of abode is governed by section 2 of the 1971 Act. The relevant provision is section 2 (1) (a) namely that he is a British citizen. It has not been suggested that section 2 (1) (b) would apply. The claimant is not in possession of a British passport. It was refused upon the relevant authorities discovering a death certificate in the name of Oladayo Olawanle Akinselure, the name on the birth certificate of this claimant.
24. A legal challenge to the refusal of the relevant authorities to issue the passport failed at the permission stage following a refusal by Burnett J. In his judgment Burnett J states:

"….. The facts are rather remarkable but essentially straight forward. On 3 July 1968 a child was born to a Nigerian couple living in West London. His birth was registered 9 days later. The claimant says he is that child. However, on 23 October 1973 that child's death was registered in Swansea. The death certificate records that the boy died on 20 October 1973 in the local hospital. The death was reported by a Felix Fashadini, apparently a cousin of the boy, and was supported by a certificate of death signed by a Dr Joshi. The claimant says he left the United Kingdom with his mother in 1976. He grew up in Nigeria and the Gambia.

3. It is common ground between the parties that the claimant was issued with a British passport by the British High Commission in the Gambia in 1998. In 2000 the claimant changed his middle and last name by deed pole. He obtained a substitute passport in his new name, which expired on 17 February 2008.

4. In the autumn of 2008 the claimant applied for a new passport, at which point the death certificate was picked up, no doubt in the routine checks made by the department, and drawn to the attention of the claimant. There was a police investigation, but no action was taken against the claimant.

5. On 23 October 2009 the Identity and Passport Service wrote to the claimant's then solicitors refusing to issue a passport. The point taken was a simple one: until the General Register Office confirms that the death was recorded in error, and the certificate expunged, they would not issue a passport. … It goes on to make helpful suggestions about the nature of the information and evidence which the Register General might needed to be persuaded to expunge the death certificate.

6. Solicitors then acting for the claimant then wrote to the General Register Office, but provided no real evidence upon which the Registrar could act…..

7. It is axiomatic that the IPS need to be satisfied of an applicants identity before issuing a passport to a person in a given name. …

14. Ordinarily, no doubt a British citizen whose application for a passport meets the procedural requirements set out in documentation published by the Secretary of State will be granted such a passport. But the starting point must be that the applicant for the passport whether a fresh passport or renewed passport, establishes that he is who he says he is, born when and where to whom he says he was born. There is a hint in the papers that the claimant's belief is that his death was reported maliciously because of a family dispute of some sort. The detail of that is unclear. A mechanism exists for correcting erroneous entries in the register. Understandably the Registrar General requires proper proof beyond what may be regarded as the say – so of the person concerned that an error has been made. The correspondence, and indeed the defendant's acknowledgement of service, have suggested steps the claimant might take to garner the necessary evidence to place before the Registrar General. It is not common, in my judgment, unreasonable to expect him to do so.

15. I fully recognise that if the underlying facts are as suggested by the claimant he has been placed in an extremely difficult, indeed invidious position. He is on that hypothesis the unwitting victim of a serious fraud, indeed a very serious criminal offence, committed in 1973. But, in my judgment, the Secretary of State is entitled to be cautious about issuing a passport to an individual when such a serious question mark hangs over his identity. Indeed, there would be something more than discordant about the Secretary of State issuing a passport to somebody in respect of whom official documentation has recorded his death.

16. It seems to me that the claim as advanced originally and as now advanced has no legal merit. That is not to say that I do not sympathise with the claimant in which he finds himself. It seems to me that he needs to sit down carefully and consider the steps he should take to garner the necessary evidence…."

25. The position regarding the issue of a passport to the claimant is unchanged, the claimant is not entitled to a British passport. If he is not entitled to a British passport how can it realistically be argued that he is a British citizen so as to bring himself within the provisions of section 2 (1) (a) of the 1971 Act and thus obtain a right of abode? It is a right which is granted if statutory criteria are met.
26. The claimant submits that the certificate of entitlement and right of abode are one and the same. I do not accept this. Regulation 9 of the 2006 Regulations is clear as to the distinction between the certificate of entitlement and the right of abode. It envisages two distinct sets of circumstances in which a certificate of entitlement may be revoked namely where the individual does not have the right of abode in the United Kingdom under section 2 (1) of the 1971 Act ( Regulation 9 (a)) or where the person is deprived of his right of abode by an order under section 2 A of the 1971 Act 9 (Regulation 9 (d)).
27. I do not accept the claimant's contention that section 3 (9) (e) of the 1971 Act reads as providing that the certificate of entitlement confers the status of right of abode. In my view the certificate of entitlement represents confirmation of the right of abode and no more. The claimant's argument that the inclusion in the previous section 82 (2) (c) of the Nationality, Immigration Asylum Act 2002 of an express right of appeal only from the refusal of a certificate of entitlement must be interpreted as meaning that a certificate of entitlement and right of abode are one and the same is placing a detail of construction upon the provision which it does not bear.
28. As the certificate of entitlement and right of abode are, in my view, two separate entities the provisions of section 2 A of the 1971 Act do not apply as they relate to the revocation to a right of abode. The Secretary of State has not made a decision to revoke the claimant's right of abode, what has been revoked is the certificate of entitlement.
29. As to the claimant's submission that the burden of proof lies upon the Secretary of State the words of section 3 (8) of the 1971 Act are clear, the burden lies upon the person asserting that he or she is a British citizen to prove that he or she is.
30. Reliance by the claimant on the letter dated 29 January 2015 to the claimant's MP where it was stated that the claimant's application on human rights grounds was discontinued on 3 April 2014 "as he currently has right of abode in the UK" is undermined by the fact that it was written prior to the Secretary of State's revocation of the certificate of entitlement in April 2015. The highest the claimant can put his case is that the letter was written at a time when the judgment of Burnett J was known. What is not known is whether the writer of the letter was aware of the judgment and if she was, whether she had any power to act upon it.
31. By the time the Secretary of State or those acting on her behalf had cause to consider the claimant's application for British citizenship they were in possession of the decision of Burnett J. As the letter of 17 April 2015 makes clear a full review of the claimant's application for right of abode in the United Kingdom was then made, which included knowledge of the death certificate. The Secretary of State acknowledged the birth certificate produced by the claimant but stated that she could not be satisfied as to his entitlement to the use of this identity by reason of the subsequent death certificate. Given the registration of a death in the same name as that of the claimant at his birth, with no evidence from those responsible for reporting the death to undermine the correctness of the registration, the decision of the Secretary of State was founded upon a proper basis and cannot be described as irrational or unlawful. It revoked a certificate of entitlement which the defendant had proper grounds for concluding had been granted upon a false basis.
32. The decision did not revoke the right of abode. The Secretary of State had no power to confer such a right. The right can only be granted if the statutory criteria set out in Section 2 of the 1971 Act are not. For the reasons previously given the claimant has not met those criteria.
33. For the reasons given this application is dismissed.