England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre
		31 May 2017

Upper Tribunal Judge Markus QC:

Introduction

1. The claimant was born in Bangladesh on 24 January 1989. Her father was named on her birth certificate as Ghulam Rasul. Ghulam Rasul was a British Citizen otherwise than by descent. On that basis the claimant was also a British Citizen pursuant to section 2(1)(a) of the British Nationality Act 1981. In December 2002 the claimant's Bangladeshi passport was endorsed with a certificate of entitlement to the right of abode and she entered the United Kingdom (UK) on 3 April 2003. She has been the holder of a British passport since at least 2008 and possibly earlier.
2. The claimant left the UK between November 2009 and January 2010 to marry her husband in Bangladesh and in May 2011 her husband entered the UK with entry clearance as the spouse of a British citizen. A child was born to them in April 2012.
3. In the meantime, in 2010 the claimant's father applied to renew his British passport and it came to light that he was not Ghulam Rasul. He admitted that he had purchased the identity of Ghulam Rasul in Bangladesh in 1985. The Claimant's father was not and never had been a British citizen. He was arrested and ultimately convicted of passport fraud. There is no suggestion that the claimant had been aware of the fraud nor that she knew of her father's arrest and conviction at the time.
4. In October 2014 the Claimant's husband's application for indefinite leave to remain (ILR) under paragraph 287 of the Immigration Rules (ILR for the spouse of a person present and settled in the United Kingdom) was refused because the claimant's passport had been revoked, a matter of which the claimant had been previously unaware. In January 2015 the claimant applied for ILR on the basis of 10 years continuous lawful residence in the UK under paragraph 276B of the Immigration Rules. On 29 March 2015 the defendant refused the application for ILR on the ground that the claimant's residence in the UK had not been lawful. The defendant also decided that, in the particular circumstances of her case, the claimant would be granted limited leave to remain in the UK outside the Immigration Rules on Article 8 grounds, for a period of 30 months until 29^th September 2017.
5. The claimant challenged the decision of 29 March 2015 granting her limited leave to remain rather than ILR. The application for judicial review was issued in the Upper Tribunal. On 4 May 2016 His Honour Judge Cooke gave permission on one ground only: "whether it was a breach of policy to treat the applicant, a minor, as unlawfully present when her father's citizenship, on which her own was dependent, was revoked." The policy referred to is Chapter 55 of the Defendant's Nationality Instructions, which provides guidance on deprivation and nullity of British Citizenship. On 16 December 2016 Upper Tribunal Judge Worster ordered that the claim be transferred to the High Court.

Law

British Citizenship

6. The British Nationality Act 1981 sets out the three means by which British Citizenship can be acquired: on birth or adoption (sections 1); by descent (section 2); by registration (principally sections 3-5); and by naturalisation (section 6). By virtue of section 2(1)(a) of the Immigration Act 1971 a British Citizen has the right of abode in the UK. Section 3 empowers the Secretary of State to make provision for the regulation and control of immigration by those who are not British Citizens.
7. The power to issue passports is derived from the Royal Prerogative, not from any statutory power. Generally passports will be issued to those who have established that they are British citizens unless there are exceptional reasons not to do so. On 25^th April 2013 the Secretary of State for the Home Department laid a written ministerial statement in the House of Commons, including the following:

"There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.

…

Passports are issued when the Home Secretary is satisfied as to:

i. the identity of an applicant; and

ii. the British nationality of applicants, in accordance with the relevant nationality legislation; …"

8. The guidance sets out the persons who may be refused a British passport or have their existing passport withdrawn in the public interest. It is obvious that a passport may also be withdrawn where it is discovered that a person is not a British citizen and so should not have been issued with a passport.

Chapter 55 of the Nationality Instructions

9. Chapter 55 is headed "Deprivation and Nullity of British Citizenship". Deprivation of citizenship is governed by section 40 of the British Nationality Act 1981 including on grounds of fraud, false representation or concealment of material fact, and includes:

"55.7.8.1 If the person was a child at the time the fraud, false representation or concealment of material fact was perpetrated, the caseworker should assume that they were not complicit in any deception by their parent or guardian."

10. Nullity is not governed by legislation. The guidance explains that nullity "is the term used to describe a registration or naturalisation which was ineffective from the outset." The guidance at 55.1 explains that nullity is appropriate where it is discovered that the applicant is not the intended recipient of a grant of citizenship by registration or naturalisation (for instance, because the applicant gave false information or was using a false identity) or the applicant had erroneously applied for registration or naturalisation and it is discovered that he already has British citizenship automatically (eg by birth). Guidance is also provided as to the impact of nullity on an applicant's children, including the following:

"Impact of nullity on the applicant's children

A person whose registration or naturalisation is declared null and void is regarded as never having held that status. This will therefore impact on any children born following registration/naturalisation.

…

ii. Children born overseas

As the parent was not a British citizen at the time of the birth, the child cannot be a British citizen by descent, and so will not have the right of abode in the UK. They will need to regularise their stay.

iii. Children registered when the parent registered or naturalised

… Where the child registered as a British citizen in their true identity then, notwithstanding that the grant to a parent is a nullity, it would not be appropriate to take nullity action."

Immigration control

11. The entry into the UK of those who are not British Citizens is regulated and controlled by the Secretary of State pursuant to the general power in section 3 of the Immigration Act 1971 and for which detailed provision is made in the Immigration Rules. An applicant for indefinite leave to remain on the grounds of long residence in the United Kingdom must satisfy the requirements of paragraph 276B of the Immigration Rules which include that he has had at least 10 years continuous lawful residence in the United Kingdom.
12. Paragraph 276A defines "lawful residence" as:

"residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain."

13. Paragraph 276BE(2) provides that where the Secretary of State grants leave to remain outside the rules on Article 8 grounds, it will normally be for a period not exceeding 30 months.

Discussion

14. In order to make good his case that chapter 55 of the Nationality Instructions applied to the claimant, Mr Martin sought to show that the provisions for deprivation or nullification of citizenship applied in this case. He submitted that the claimant had a right of abode in accordance with the certificate of entitlement to the right of abode endorsed on her passport and that this, or her having been issued with a British passport, meant that she was a citizen and so was lawfully resident in the UK unless and until her citizenship was brought to an end either by deprivation or nullification of it.
15. There is an underlying misconception in Mr Martin's submission. If he is correct that the claimant was a British citizen then there could be no question of her being given ILR which has no application to British citizens. Despite this Mr Martin maintained that there is a link between chapter 55 and the decision to refuse ILR. He said that the defendant should have applied the policy in chapter 55 relating to non-complicit children so that the claimant should either have retained her citizenship or should have been treated as lawfully present in the UK and so entitled to ILR. This appears to be the policy issue which was identified by HHJ Cooke in the grant of permission. I reject all of the submissions advanced on behalf of the claimant for reasons which I now explain.
16. A person has the right of abode in the UK if one of the statutory conditions in section 2 of the 1971 Act applies. If a statutory condition applies, then the right exists without the need for executive action. If no statutory condition applies, there is no such right. It makes no difference that the Secretary of State had previously believed in error that a person had the right of abode: Christodoulido v Secretary of State for the Home Department [1985] IAR 179. The endorsement on the claimant's passport of a certificate of entitlement to the right of abode could not confer the right of abode. In the claimant's case the only basis on which she could have had the right of abode was under section 2(1)(a) Immigration Act, as a British citizen. Although, prior to the discovery of her father's deception, it was thought that she was a citizen by descent, that was mistaken. Her father was not a British Citizen. Accordingly the claimant could not have been a British Citizen at any time and so did not have the right of abode. As I have said, the right could not be conferred by endorsement of her passport.
17. Mr Martin submits that, if that is correct, a person who is in the UK pursuant to the right of abode derived from their having citizenship by descent is disadvantaged as compared to a person whose right of abode is derived from citizenship which has been acquired by way of registration or naturalisation. He is correct to identify that different consequences following from the two different routes to citizenship, but actual or perceived unfairness cannot avoid the clear provisions of the statutory regime. The position is made clear by two decisions of the Court of Appeal.
18. The first is R v Secretary of State for the Home Department ex p Naheed Ejaz [1994] QB 496. The applicant was granted a certificate of naturalisation as the wife of a British citizen, and she obtained a British passport. It subsequently came to light that her husband had never been a British citizen and the Secretary of State declared her an illegal entrant. The Court held that, although her husband was not a British citizen, the certificate of naturalisation conferred on the applicant the status of citizenship and she could only be deprived of it pursuant to section 40.
19. The second case is Bibi v Entry Clearance Officer [2008] INLR 683. Before he died, the first appellant's husband had obtained registration as a British citizen using a false identity. Despite this the Secretary of State did not deprive him of his citizenship. Relying on his citizenship, the first appellant (and her children) sought to obtain a certificate of entitlement to the right of abode. The Court of Appeal held that, if the appellants had already obtained registration or naturalisation as British citizens, even on the basis of the deceased's false claim, they would have been British citizens albeit at risk of deprivation. But in the absence of registration or a certificate of naturalisation, their applications for certificates of entitlement to the right of abode depended entirely on the status of the deceased and, as there had never been a grant of citizenship to him, there was no basis for their claim to right of abode. The "injustice which innocent parties might suffer if their ostensible status were held to be non-existent as a result of some ancient fraud" (paragraph 19) did not avail the appellants.
20. Lord Justice Wilson, with whom the other members of the Court agreed, said as follows:

"20. In my view the decision in Naheed Ejaz is a useful reminder of the limited circumstances in which the verdict of the law is that citizenship never existed. Without having made any misrepresentation about her own identity the applicant in that case had successfully applied for a certificate of naturalisation. In her application, whether knowingly or otherwise, she had made a false representation, namely that her husband was a British citizen, which exposed her to the risk of being deprived of her citizenship. Until deprived of it, however, she was a British citizen because the certificate had been granted to her in the name of herself rather than in that of another. If, in the present case, the appellants had already obtained registration in their own names as British citizens or had already secured a grant of certificates of naturalisation in their own names as such citizens, even if only by virtue of their having falsely claimed that Mr Jabbar, their late husband and father, was a British citizen, they would have been British citizens albeit at risk of deprivation. But no such registration has been obtained; nor certificate of naturalisation granted. So the focus remains directly on the citizenship or otherwise of Mr Jabbar. In this regard the decisions in Sultan Mahmood and Parvaz Akhtar are in my view directly in point and compel the conclusion that, because he applied for registration in a false identity, there was never a grant to Mr Jabbar of U.K. (or thus, later, British) citizenship. Had the result been otherwise, a paradox would arise in that the appellants, who have not been registered or naturalised and do not seek registration or naturalisation, would not even be at such risk of deprivation and subsequent removal as was the applicant in Naheed Ejaz."

21. As the right of abode is dependent on citizenship, the above reasoning applies equally to a claim to citizenship which is dependent on another's citizenship. It follows that, if the claimant in the present case had acquired citizenship by registration or naturalisation, she would have been a citizen until deprived of it or it was nullified. But she had not acquired citizenship by that means. Her status was at all times wholly dependent on her father being a citizen, which he was not.
22. I also reject Mr Martin's submission that issuing a British passport to the claimant constituted either registration or "de facto registration". As I have explained, issuing a passport is a prerogative act exercised where it is believed that the holder is a citizen. The passport furnishes unqualified but rebuttable evidence that the holder is a citizen: R v Secretary of State for the Home Department ex p Obi [1997] 1 WLR 1498. It does not confer citizenship. It does not amount to registration of citizenship. There is no room in the statutory scheme for a person who is not registered to be treated as being registered.
23. I can now turn to Mr Martin's main submission, which is that the Secretary of State's decision was in breach of the policy in chapter 55. He relies on this policy in two respects. First he relies on the guidance as to deprivation of citizenship acquired on the basis of deception at a time when the individual was a minor (55.7.8.1). But this guidance does not apply in the present case. As the claimant had never been a citizen, there was no question of her being deprived of citizenship. Second, Mr Martin relies on the policy which I have set out above relating to the impact of nullity on a person's children. He says that this should have been applied to the claimant so that her citizenship would not have been nullified and she would have been lawfully present in the UK for the previous ten years. Aside from the fundamental flaw in the submission which I identify at paragraph 15, this submission fails in the policy's own terms for two principal reasons. The first is that the policy on nullity simply does not apply in circumstances of the claimant's case as she was neither registered nor naturalised as a citizen. In any event, even if nullity applied to the claimant's case, paragraph iii of the policy (which Mr Martin relied on) could not assist her because it only applies to registration cases. The policy correctly distinguishes between the position of those who claim citizenship by descent and those who are registered, as explained in Bibi. Paragraph ii could be the only applicable provision and that makes clear that the claimant could not be a British citizen by descent, could not have the right of abode and would need to regularise her stay. That is what the Secretary of State has sought to do by giving the claimant leave to remain.
24. Finally, I reject Mr Martin's submission that the claimant should in any event have been given ILR on the ground of long residence. The claimant's past residence in the UK had not been lawful because she was residing without either the right of abode or leave to remain. Ten years continuous lawful residence is a requirement for obtaining leave under paragraph 276B, and lawful residence is defined. Contrary to Mr Martin's submission, the paragraph does not allow a person to be treated as having been lawfully resident in the UK if they were not. The particular circumstances of the claimant, who had established a life in the UK believing that she was a citizen and only discovering after many years that, through no fault of her own, she was not, were addressed by the Secretary of State in deciding to give her leave to remain outside the Rules.
25. For these reasons I dismiss the application for judicial review.