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
		31 August 2018

Mrs Justice Lang :

1. The Claimant applies to quash the decision of the Defendant, made on 22 March 2016, to refuse her application for a passport as a British Overseas citizen ("BOC").
2. The Claimant claims to be a BOC on the basis that she is a person of Somali heritage, born in the former Crown Colony of Aden, prior to 14 August 1968, who did not acquire South Yemeni nationality on or before that date.
3. The Claimant applied for a passport on 27 February 2013. On 26 May 2013, the Defendant sought further information from her. The Claimant sent further information in July, September and October 2013. The Defendant's representative interviewed her on 20 January 2015.
4. Following the letter of refusal on 22 March 2016, there was pre-action protocol correspondence and the claim was issued on 22 July 2016. Permission to apply for judicial review was granted by May J., upon renewal at an oral hearing on 16 December 2016. On 12 December 2017, I dismissed the Defendant's application to strike out this claim, together with other similar claims.
5. On 27 June 2018, I gave judgment in a lead case involving four claims by members of the Nooh family ("the Nooh litigation") in which I had the benefit of considering detailed submissions on the law and some generic evidence, which were also relevant to this case.

Legal framework

6. The parties were in agreement as to the legal basis upon which a Somali born in Aden may be a BOC and entitled to a passport accordingly.
7. Under s.1(1)(a) of the British Nationality and Status of Aliens Act 1914, any person born within His Majesty's dominions and allegiance was deemed to be a natural-born British subject.
8. Section 4 of the British Nationality Act 1948 ("the 1948 Act") materially stated that:

"…..every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth."

The term "citizen of the United Kingdom and Colonies" is commonly abbreviated to "CUKC".

9. By virtue of s.12(1)(a) of the 1948 Act, a person who was a British subject immediately before the commencement of the 1948 Act became a CUKC on commencement if he was born within the territories comprised at commencement in the United Kingdom and Colonies and would have been a CUKC if section 4 of the 1948 Act had been in force at the time of his birth.
10. The Colony of Aden was a Crown colony as at 1 January 1949, which was the date of commencement of the 1948 Act. So from 1 January 1949, every person born in the Colony of Aden became a CUKC.
11. The Colony of Aden became the State of Aden within the British Protected Federation of South Arabia on 18 January 1963. It continued to be a British colony until independence.
12. The State of Aden became part of the independent state of the People's Republic of Southern Yemen (also known as South Yemen) on 30 November 1967. In 1989, South Yemen unified with the former Yemen Arab Republic (North Yemen) to create the Republic of Yemen.
13. The Aden, Perim and Kuria Muria Islands Act 1967 ("the 1967 Act") provided for the relinquishment of UK sovereignty over inter alia Aden. Paragraph 1(1) of the schedule to the 1967 Act headed "Change of citizenship" stated that:

"Except as provided by the following provisions of this Schedule, any person who, on such date as may be specified in an order made by the Secretary of State -

(a) in consequence of his connection with a territory designated by the order, possesses any such nationality or citizenship as may be specified by the order, whether he acquired that nationality or citizenship before that date or acquires it on that date, and

(b) immediately before that date is a citizen of the United Kingdom and Colonies,

shall on that date cease to be a citizen of the United Kingdom and Colonies."

14. The relevant "order" referred to in the 1967 Act that was made by the Secretary of State was the British Nationality (People's Republic of Southern Yemen) Order 1968 ("the 1968 Order"), which provided that:

"For the purposes of paragraph 1 of the schedule to the Aden, Perim and Kuria Muria Islands Act 1967 (which provides, subject to exceptions, for the loss, on such date as may be specified by order, of citizenship of the United Kingdom and Colonies by a person possessing on that date such nationality or citizenship as is so specified by reason of his connection with a territory designated by the order) -

(a) the People's Republic of Southern Yemen shall be a designated territory;

(b) in relation thereto the specified nationality shall be Southern Yemeni nationality, and;

(c) in relation thereto the specified date shall be 14th August 1968."

15. The effect of the 1968 Order was that any person who possessed South Yemeni nationality in consequence of his connection with the People's Republic of Southern Yemen on 14 August 1968, and was a CUKC immediately before 14 August 1968, ceased to be a CUKC on 14 August 1968.
16. The question whether a person possessed Southern Yemeni nationality on 14 August 1968 has to be answered by reference to Southern Yemen nationality law. Article 1 of the People's Republic of Southern Yemen 'South Yemen' Law of Nationality 1968 (No 4), which came into force on 4 August 1968, materially provided that:

"The following expressions in this law shall have the following meanings...

(b) 'Republic': the People's Republic of Southern Yemen...

(e) 'Arab': any person belonging to the Arab nation and holding the nationality of any Arab state."

17. Article 2 of Southern Yemen's nationality law provided that:

"The following shall be considered Southern Yemeni by birth...

(b) any Arab born in the Republic, provided that one or both of his parents has resided in the Republic for at least five years."

18. Following the settlement of the judicial review claim in R (Botan) v Secretary of State for Foreign and Commonwealth Affairs CO/1484/2009, the Defendant did not dispute that Somalis born in Southern Yemen were not considered Arab under Articles 1(e) and 2(b) and so did not automatically become Southern Yemenis from 14 August 1968, the date Southern Yemen's nationality law was applied by the 1968 Order. That meant that for the purposes of the 1968 Order, they did not, as a matter of birth, possess Southern Yemeni nationality on 14 August 1968. Therefore, unless they acquired Southern Yemeni nationality some other way, such as by registration on or before 14 August 1968, they did not cease to be CUKCs on 14 August 1968.
19. A CUKC who lacked a right of abode in the UK or equivalent right in a remaining British Dependent territory became a BOC from 1 January 1983 by virtue of s.26 of the British Nationality Act 1981. Accordingly, all Somalis born in Aden on or before 14 August 1968 who had not acquired Southern Yemeni nationality on or before that date became BOCs from 1 January 1983. As they did not meet the requirements of section 11 of the British Nationality Act 1981, they were not eligible to become British citizens.
20. BOCs are entitled to a British passport and to request consular protection from the UK Government when travelling abroad. However, they have no right of abode in the UK. Acquisition of citizenship of another country, in this case Somalia, does not result in the loss of British Overseas citizenship.
21. The Claimant claims to be a BOC by operation of law and applies for a declaration to that effect. The Defendant has no discretion to refuse a passport to a person who has the legal right to BOC status. The question whether each Claimant is a BOC is a question of precedent fact for the court to determine on the basis of the evidence before it. The analysis by Keene LJ in R. (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 in respect of British citizens under section 11 of the British Nationality Act 1981 is also applicable to these claims:

"31. What is striking about the present case is that, if the appellant could establish the facts as he alleges them to be, he would have a legal right to be a British citizen. The statutory provisions to which I have earlier referred confer on such a person the status of a British citizen automatically. There is no discretion vested in the Secretary of State. One notes a sharp contrast between those provisions, especially section 11(1) of the 1981 Act, and others in the same Act dealing with applications for naturalisation and registration as a British citizen, such as section 6(1) and section 6(2). In both the latter cases the statute requires the Secretary of State "to be satisfied" of certain matters before he may "if he thinks fit" grant a certificate of naturalisation. In those circumstances, the Secretary of State is in the position of making a decision or a determination. Yet the legislation confers no jurisdiction on the Secretary of State to determine in any authoritative way whether a person is a British citizen by virtue of section 11(1). He is simply not empowered to decide that issue. Nor is there any mechanism or process laid down by statute or regulation whereby he decides whether a person is entitled as of legal right to British citizenship under the 1981 Act. That is perhaps not surprising, because one is here dealing with whether or not that person has a legal right. The contrast is with such processes as registration or naturalisation, where the Secretary of State is empowered by section 41(1)(b) to make provision by means of regulations.

…..

33. Of course, the Secretary of State is very much involved in related matters, such as the issue of passports; and for that reason, as well as for obvious practical ones, it is sensible for any person asserting that he is entitled to the status of a British citizen to raise the matter first with the Home Office. But even on a passport application, the issue of whether a person is a British citizen is a matter of precedent fact where the courts, if there is a dispute, would be prepared to make a decision on the merits.

34. If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship… In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it."

22. It is clear from Harrison that the court does not consider whether, applying public law principles, the Defendant was entitled to find that the Claimant had not proved that they were the holders of their claimed identity, but instead considers for itself whether the Claimant has established the claimed identity.
23. The burden of proof rests upon the Claimant to establish that she is a BOC, applying the civil standard of the balance of probabilities: see R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin) per Walker J. at [11]. That is the burden and standard of proof which I have applied in making my findings of fact and reaching my conclusions.

The Defendant's guidance

24. In 2013^[1], the Defendant issued Guidance to civil servants making a decision on an application by a BOC based on birth in Aden. It provided, inter alia:

"Detailed Guidance – Evidence

5.9 When considering an application for a BOC passport from an applicant with connection to Yemen, examiners need to assess whether the applicant became Yemeni on the basis of his own and his parent's place of birth. If the applicant is of Somali or South Asian descent, examiners should not now assume that the person became Yemeni automatically on independence. However, they should expect to see contemporaneous (documentary) evidence of the parent's birth in Somalia – normally the birth certificate or passport. Examiners should also request to see evidence of the parents' marriage. In general, the following should be requested when considering BOC applications with connection to South Yemen (colony of Aden):

An original birth certificate indicating that the applicant was born in Yemen, preferably with the contemporaneous official translation;

A passport for the father, if the applicant's birth certificate does not state his place of birth. If the applicant's father is born in Yemen, we need proof that they did not become Yemeni on independence, such as naturalisation certificate or a Somali passport issued after independence.

A range of identity documents for the applicant from different years (preferably different decades) to demonstrate that they are the person that the birth certificate relates to.

5.10 In addition to the documents, examiners should look for consistency of name, date and place of birth in the documents provided. Examiners should also look for a range of photographic identity documents from different times that would give added confident about the identity of the person applying for the passport."

25. In my view, it is clear that the Guidance provides examiners with suggested tools and techniques to assist them in reaching a conclusion on the question they have to determine, namely, the identity, nationality, date and place of birth of the applicant. It is not a tick-box exercise. The examiner has to evaluate the evidence and exercise his judgment in each individual case. Thus, it is possible that an examiner may be satisfied as to an applicant's claimed identity etc. even if not all the documents listed in the Guidance are available or even if the details shown in those documents are not entirely consistent.
26. I consider that my analysis is supported by the judgment of the High Court in Bondada, which concerned an application for British citizenship. The Court accepted Mr Berry's submission, which was not disputed by counsel for the Secretary of State for the Home Department, that there were no mandatory requirements as to the evidence that can be relied upon in support of a claim to British citizenship (per Walker J. at [74]).

The Defendant's decision

27. The letter from HM Passport Office, dated 22 March 2016, gave the following reasons for refusing the Claimant's application for BOC passport:

"….. To satisfy identity we need to be able to assess how your client is seeking to prove that she is the holder of the claimed identity. This would normally be via contemporaneous documentary evidence confirming a persons name, place and date of birth, their parent's names, place and dates of birth and we also need to be satisfied with the relationship as claimed to the stated parents.

Your client attended an interview on 20^th January 2015. During the interview your client was unable to correctly confirm who had counter signed her passport application. She claimed it had been signed by her brother Ali Suliaman. Your client's passport application was in fact counter signed by Mahmoud Mohamed Adan.

Also, we have undertaken checks to establish your clients' entitlement to a British passport, the reason for refusal is as follows;

During the process it has been established there are discrepancies with personal and parents details (name and date of birth) on the documents provided as follows;

.

Passport number 64904/3 purporting to be mother's passport has the forename changed to show Saka from what appears to be Saeeda. Mother's year of birth has also been amended without official endorsement to show 1938.

Aden bc 13587 which appears to be mother's shows year of birth as 1935 and was issued in 1955.

Your clients passport A0937521 issued 12/10/1993 has year of birth amended to show 1966 from what appears upon closer examination to be 1972. There is no explanation as to why that amendment would have been endorsed as being correct.

Your client's subsequent passport number P00030240 shows the date of birth as 30/09/1972.

Photocopy of what purports to be Aden Birth certificate A102714 shows mothers name as Saqa which is different to both names contained in passport 64904/3.

The discrepancies as described above and the answers given at interview have not satisfied HM Passport Office that your client is the true holder of the claimed identity and it is for that reason the application has been refused."

Evidence and findings

28. I heard oral evidence from the Claimant, and her brother Ali Mohamed Suleiman ("Ali"), by video link from the United Arab Emirates ("UAE"), with the assistance of an interpreter in Arabic. Mr Singh QC did not cross-examine either of them. A substantial amount of documentary evidence was also adduced.
29. In essence, the Claimant's evidence was that she was born in Aden on 30 September 1966 to parents who were of Somali origin and nationality, but were residing in Aden. Her paternal grandparents were born in what was then British Somaliland, as was her father. Her maternal mother and grandmother were born in Aden but were Somali. Her parents had six children. Her four brothers are named Ali, Ahmed, Hassan and Yousuf and her sister is named Safi. The Claimant and her family moved permanently to the UAE in 1977.

Expert evidence

30. At the hearing, the Claimant adduced expert evidence on Somali culture which addressed the variations commonly found in the spelling of names.
31. Dr Martin Orwin, Senior Lecturer in Somali and Amharic, at the School of Oriental and African Studies, provided a report on the writing and spelling of Somali names. The Latin alphabet was introduced as the official writing system for Somali in 1972; prior to that different writing systems were used. He explained that the Somali language has no standard form. It comprises a set of dialects, and there are variations in the ways in which words are spoken and written. In addition, grammatical and spelling errors are commonplace in written Somali. Dr Orwin observed that the "fact that such spelling errors are common means that at times the spelling of names reflects these, and I have seen people use incorrect spelling consistently and inconsistently for their name". He said, at [30]:

"Whereas in English it is customary to stick to one spelling of a name, in Somali this is not necessarily the case. My own name, Martin, is spelt by some people with a 'y': Martyn. Given consistency of spelling in the UK I would never write my name with a 'y' and for official purposes such consistency is well established….This is not to say they are not the same name though. When spoken, there is no difference in pronunciation and the etymology of the name, whether written with 'i' or 'y' is the same. They are two ways of spelling the same name. Consistency of spelling is not something which has permeated Somali writing and written culture generally. The added complications of Anglicizing Somali-written names, the Romanization of Arabic names, Romanising the spelling of the name in an Arabic-speaking country, etc. can all lead to inconsistent spelling of Anglicizations."

32. Thus, the problem of inconsistent spelling is exacerbated when Somali or Arabic names are spelt in an English-speaking context, because of the representation, or lack of representation, of sounds found in Somali and/or Arabic, but not in English. Dr Orwin gave the example of the spelling of the Arabic name Muhammad which is spelt in a number of different ways in English e.g. Muhamad, Muhammad, Mohamad, Mohammad, Mohamed, Mohammed, Mahamad, Mahamed etc. He explained that these are not different names, but simply different anglicised spellings of the same name. An example of that in this case is the spelling of the Claimant's father on her Colony of Aden birth certificate which is "Mohd", a shortened form of his full name "Mohamed" as shown on his Somali passports.
33. Moreover, Somali is not an Arabic language and since 1972 it has been written in the Latin alphabet, not in Arabic script. So when Somali names are written in Arabic, in the Republic of Yemen and in the UAE, different spellings may be given for them.
34. This report was supported by a document from the CJK Dictionary Institute on the various ways in which Arabic names may be romanised (ARAN document) and a note from John Wedderburn on Arabic transliteration. Romanisation is the process of converting a different writing system, such as Arabic, into the Latin alphabet. Transliteration is the representation of one writing system into a different writing system, sign by sign. Transcription refers to the representation of the sounds of language in a recognized writing system.
35. Dr Markus Hoehne, University of Leipzig, who is an anthropologist with expertise in Somali culture, also provided a report. Dr Hoehne explained that there are no family names in Somali culture. Names are constructed in the following order: a person's first name, father's first name, grandfather's first name. For example, in the case of the Claimant's father, named Mohamed Suleiman Jama: Mohamed was his first name; Suleiman was his father's first name; and Jama was his grandfather's first name. Dr Hoehne's evidence was that "to include the great-grandfather's name into one's own name is very rare in everyday life in Somalia".
36. When European authorities register Somali names, they tend to adopt the last name as the family name or surname of the person, in an attempt to adjust them to a European taxonomy of naming. In this case, the Claimant's grandfather's first name – Suleiman – has been treated as if it was her surname. As Dr Hoehne explained, from a Somali perspective, this does not make sense, and gives rise to confusion.
37. Dr Hoehne's report explained the use of the honourable title "Haj" to acknowledge that a person has complied with the Islamic obligation to do the holy pilgrimage to Mecca. According to the Claimant, that was why the Claimant's maternal grandfather was called Haj Mohamed, and why "Haj" was often included in her mother's name.
38. Dr Hoehne also described the wide use of nicknames in Somali culture and the practice of parents calling a child by different names. This was not the case here, but provided some cultural context to the Claimant's mother's practice of using more than one first name. The Claimant's evidence was that her mother's birth name was Saqa (also spelt Saka) but she was often called Saeeda, including by her husband.
39. The Claimant accepted that her name, and the names of her parents, have been spelt inconsistently in the documents. In my judgment, these variations in spelling are likely to have occurred in part because the names were being translated into different languages, and in part because consistent spelling is not a feature of Somali culture and different spellings of the same name are commonplace. In my judgment, these inconsistencies in names did not call into question the Claimant's identity, and indeed Mr Singh QC did not seek to support this aspect of the Defendant's reasons for refusing the Claimant's passport.
40. Discrepancies in birth dates were a feature of the evidence in this case, which Mr Singh QC did place reliance upon. Dr Hoehne's evidence concerning the lack of importance of dates of birth and birthdays in Somali culture was relevant. He said:

"The lack of importance of birthdays and dates of birth to most Somalis.

7. Dates of birth are usually not registered in Somali culture. Before the advent of colonialism and also during the colonial period, Somalis, most of whom reside in the countryside, were born "under the tree". There was no citizen registry covering the population. This only gradually changed in the postcolonial period. Most Somalis were still born without official registration. But when they applied for a passport, a birth date was fixed in the document. However, this date represented an approximation of a person's age. Unusually, the 1 of January was taken as date and month; the year indicated roughly the age of the person. Somalis normally would reckon birth dates according to certain specific phenomena that occurred around their birth. Older people I interviewed myself in northern Somalia for instanced mentioned that they were born around 'the time of the measles' or around the time of a certain drought. Through oral history research, one could find out when, approximately, this would have been. Or people would say 'I was born in the year when Somalia became independent' (i.e., 1960).

8. More recently, since the 1980s, many people would at least know the year in which they were born. One reason was that many Somalis had moved to urban settlements in the post-colonial period, received formal education and began to note down important events in books. Therefore, educated parents would note the year in which a child was born. But confusion about this matter has again increased with the outbreak of civil war in the late 1980s. Private property was destroyed, books and files were lost. Families were dispersed, and often the father or the mother was killed, died of a disease or fled and the children were left on their own or with relatives. During my research in northern Somalia from 2002 onward, I met many young Somalis who had only a vague idea about the year in which they were born. A year or two difference were considered normal (e.g.: 'I was born 1982 or 1983…).

9. Birthdays play, according to my insights, no important role in Somali society up until today. Birthdays are not celebrated. And if officials need to register a person with a concrete birthday, a date is given by many people which often is but a rough estimation (as outlined above). Of course, if a person knows his/her exact birthday since the parents had noted it and the notes were preserved, this correct date is given. Beyond that, birthdays play no role in Somali society."

The Claimant's birth certificates

41. The Claimant produced a Colony of Aden birth certificate which gives her first name as Qamar, and her date of birth as 30 September 1966. Her place of birth is written on the certificate, but some of it is barely legible. Her father's name is given as Mohd Sulaiman Jama; his religion as Islam; and his race as Somali. Her mother's name is given as Saga Hag Mahmood; her religion as Islam; and her race as Somali. The certificate shows that the birth was registered on 9 October 1966. The certificate itself states that it was issued on 10 October 1966.
42. The birth certificate was not the document which was originally issued when the Claimant's birth was registered. The Claimant's evidence was that her mother submitted her original birth certificate to the education authorities when she was registered at elementary school, and it was never returned. The Claimant was later told that the school could no longer find it.
43. Presumably in preparation for the Claimant's application for a BOC passport, the Claimant decided to obtain a duplicate birth certificate. By then, she and other members of her family were living in the UAE. Her brother Ali arranged for a friend of his, called Abdul Rahman, to obtain a duplicate copy of her birth certificate from the registration authorities in the Republic of Yemen. The Claimant and Ali gave some limited oral evidence about this at the hearing; curiously there was no written account in their witness statements.
44. Despite the paucity of evidence, upon examination, I was satisfied that the document which the Claimant produced was a genuine scanned copy of an original Colony of Aden birth certificate. It was in the form of an old-style British birth certificate, and identical to the original Colony of Aden birth certificates which I had the benefit of examining in the Nooh litigation, with the same sort of identification numbers and signatures. The handwritten entries appeared consistent with British registration in the 1960's, in style. It was attested by stamps from the Ministry of Foreign Affairs in Aden, among others. In my view, it would have been extremely difficult to forge this document, and I concluded on the balance of probabilities that it was authentic.
45. The existence of a genuine Colony of Aden birth certificate was supported by the Republic of Yemen birth certificate produced by the Ministry of Interior, Civil Status and Civil Registry in Chriter^[2], Sirah, Aden, which was signed by its Registrar, and sealed. I was satisfied that this was a genuine document. In the English translation, its title is "Copy of Birth Register". It sets out the Claimant's name; her date of birth as 30.9.1966; and her place of birth as Al Ala, Aden. Her father's name is recorded as Mohamed Suleiman Jama. His religion is recorded as Muslim and his nationality as Somali. Her mother's name is recorded as Saka Haji Mohamed. Her religion is given as Muslim and her nationality is given as Somali.
46. The Republic of Yemen birth certificate, issued on 9 September 2012, states that the birth details were extracted from the details entered in the Birth Register, entry number 9705, date of registration 19/10/1966. The entry number 9705 and the date of registration corresponded to the entries on the scanned copy of the Colony of Aden birth certificate. The entries are not identical. There are slight variations in the spelling of their names and the Republic of Yemen birth certificate refers to her father's occupation as "employee" and her mother's occupation as "housewife", and these entries were not on the Colony of Aden birth certificate. Despite these minor differences, I am satisfied that the Republic of Yemen birth certificate was drawn up from the information in the birth register which was in existence in the Colony of Aden at the time of the Claimant's birth, and which has been maintained by the registration authorities in the Republic of Yemen. I am supported in that view by evidence which I heard in the Nooh litigation as Mohamed Nooh also obtained an Arabic birth certificate from the birth registration authority in the Republic of Yemen based upon the information held in the Colony of Aden births register.
47. In my view, it would be unreasonable for the Defendant or this Court only to accept as valid the original birth certificate which was issued when the birth was first registered. Inevitably, birth certificates are sometimes lost or destroyed. Duplicates are frequently issued. In the UK, it is possible for duplicate birth certificates to be issued in precisely the same format as the first certificate. However, there was a change of regime in Aden as long ago as 1967, and it would be unrealistic to expect the Republic of Yemen still to reproduce duplicate birth certificates in the British format and language, merely because it was the former colonial occupier. A scanned copy of the Colony of Aden birth certificate, accompanied by the Republic of Yemen birth certificate based upon the Colony of Aden birth register, is in my view sufficient, provided they are authentic documents. Indeed, as the Claimant pointed out, the Defendant granted a BOC passport to her brother Ali on the basis of a scanned copy of his Colony of Aden birth certificate, not the original one.

The Claimant's passports

48. The Claimant's Somali passport number 285506 gives her name as Qamar Mohamed Suleiman. It was issued by the Somali Embassy in Abu Dhabi on 13 August 1984, and later extended to 1993. It gives her father's name as Mohamed Suleiman; it gives her mother's name as Saka H Mohamed. It gives the Claimant's date of birth as 30 September 1966, and her place of birth as Aden.
49. The Claimant's Somali passport number A0937521 gives her name as Qamar Mohamed Suleiman. The passport was issued by the Embassy of Somalia in Abu Dhabi on 12 October 1993 and was valid until 11 October 1996. It was then extended to 2000, 2003, 2006, 2009, 2011 and 2014. Her father's name is given as Mohamed Suleiman; her mother's name is given as Saka H Mohamed. The Claimant's place of birth is given as Aden and the date of birth is given as 30 September 1966. However, this date was amended from 30 September 1972. The amendment has been made under button seal by the Somali Embassy, Consular Section, Abu Dhabi. Later on in the passport, there is a manuscript comment that the date of birth of the holder of this passport should read 30 September 1966. There is a button seal from the Somali Embassy, Consular Section in Abu Dhabi which is stamped on that page and it is initialled. This refers back to the date of birth on the bio data page.
50. The Claimant's Somali passport number P00030240 was valid from 25 July 2009 until 25 July 2012. Curiously it seems to overlap in time with her previous passport. It records her name as Qamar Mohamed Suleiman. It records her mother's name as Saka Haji Mohamed. It gives her date of birth as 30 September 1972, and this passport does not seem to have been corrected.
51. The Claimant's Somali passport number P00228462 was issued to her in her name as Qamar Mohamed Suleiman on 2 October 2012. Her mother's name is recorded as Saka Haji Mohamed. The Claimant's date of birth is given as 30 September 1966.
52. The Claimant's evidence was that her mother had changed her date of birth on her official records. She was not certain when or why this happened. She attributed it to the fact that she had to leave school for about 4 years because of mental health problems, and her mother changed her date of birth to enable her to return to school. She said that she completed grade 9 (the final year of intermediate school) in 1987 and did not start grade 10 (secondary school) until 1991. However, as Mr Singh QC pointed out, she would have been an adult in both 1987 and 1991 if she was born in 1966, and it was not plausible that she would have been able to attend either intermediate or secondary level schools at those dates. According to UAE Government information posted on the internet, the typical age for pupils at intermediate level is between 12 and 14 years, and at secondary level the typical age is between 15 and 17 years. Indeed, the Claimant herself said in evidence that when she returned to education in 1991, she attended evening classes, not daytime school. Regrettably, the Claimant's mother is no longer alive to explain what happened, and the Claimant was not able to produce any education certificates.
53. According to the Claimant, she only took steps to amend the date of birth in her passport, with the assistance of her brother Ali, in about 2012 when she and her brothers were applying for BOC passports. It seems inconceivable that the Claimant was unaware prior to 2012 that her passport showed a birth date in 1972. I think it is a reasonable inference to draw that she only decided to amend it in 2012 because she realised that the 1972 birth date made her ineligible for a BOC passport.
54. The Claimant also produced her UAE identity card and her health card, both of which were issued in 2012 and gave her date of birth as 30 September 1966.

The Claimant's parents

55. The Claimant's father's Somali passport number 05352 appears to have been issued on 8 August 1962. The passport gives his name as Mohamed Suliman Giama. The passport is in Italian, as Somalia had been under Italian colonial rule. I accept Mr Berry's suggestion that the spelling of Giama may well be a translation of the name Jama, into a European alphabet by an Italian. Her father's date of birth is given as 1931, and his place of birth as Berbera (Somalia). He was then domiciled in Aden.
56. The Claimant relied in particular upon the fact that she was listed as a dependant on the passport. She appears as dependant number 6 in the name of Qamar Mohamed, with a date of birth of 30 September 1966.
57. The Claimant's father's Somali passport number 72171/3 was issued on 29 May 1978. His name is recorded as Mohamed Suleiman Jama. His date of birth is given as 1946, which the Claimant considers to be unlikely as his first child was born in 1958. His place of birth is recorded as Berbera. In the list of dependants the Claimant is listed as dependant number 4, and her date of birth is recorded as 30 September 1966.
58. The Claimant also produced her father's "Temporary Resident" card for the Colony of Aden. It is very battered, but it was possible to make out that he was a Somali national, born in 1931, in Berbera, and that he was working in Aden on the pipeline (presumably the oil refinery).
59. The Claimant produced in evidence her mother's original Colony of Aden birth certificate. Her name is recorded as Saga and her date of birth is given as 11 March 1935. Her place of birth is difficult to decipher but there seems little doubt that it was in Aden. Her father's name is recorded as Mohamed Mahmood; his race is given as Somali. His religion appears not to be recorded in the birth certificate. The birth certificate appears to have been issued on 26 September 1955, which I found puzzling as 1935 would be a more likely year of registration. It is a very old document, in poor condition, and not very legible.
60. The Claimant's mother's Somali passport number 64904 was issued to her in the name of Saka Haja Mohamed Mohamoud. The name Saeeda has been crossed out and replaced with Saka, and that change appears to have been approved by a stamp. Her mother's date of birth is given as 1938. The Claimant's evidence was that she and her siblings believed she was born in 1938 and did not know why her birth date was shown as 1935 in her Colony of Aden birth certificate. Her children Ali, Hassan, Safi and the Claimant are listed as dependants. The spelling of the Claimant's name is odd – Qmer or Qmez – but I accepted that the entry could be an inconsistent spelling of Qamar, and I take into account the fact that her mother was illiterate. It recorded a date of birth of 30.9.66.
61. Taking the evidence as a whole, I was satisfied that these were the Claimant's parents, as named in her birth certificates. They were undoubtedly of Somali heritage. They both had Somali passports. The Claimant's father was born in Berbera and his parents were born in British Somaliland. It was also clear beyond doubt that they were living in Aden which supported the Claimant's case that she was born in Aden. The discrepancies in their dates of birth may be explained by the lack of importance accorded to birth dates in Somali culture, and in her father's case, it is unlikely that there was any formal birth registration in Somalia at his birth date. Their dates of birth are not, of course, an essential element of the Claimant's eligibility for a BOC passport; they only go to the question of their claimed identities.

The Claimant's siblings

62. The Claimant's brother, Ali Mohamed Suleiman, has been accepted as a BOC by the Defendant, and he produced his BOC passport in evidence. In support of his application for a BOC passport, he produced his scanned Colony of Aden birth certificate, which was also produced in evidence before me. It gives his date and place of birth as 19 October 1960, in Aden. The birth was registered on 23 October 1960 and the certificate was issued on 31 October 1960. It records his father's name as Mohd Suleiman Jama and his mother's name as Saida Haj Mohamed. Save for the date of birth and registration, his details are the same or very similar to the Claimant's.
63. The Claimant's brother, Ahmed Mohamed Suleiman, has been accepted as a BOC by the Defendant, and his BOC passport was produced in evidence. His name is given as Ahmed Mohd Suleiman but there is an observation that says, "the holder is also known as Ahmed Mohamed Suleiman". In support of his application for a BOC passport, he produced his Colony of Aden birth certificate. His date and place of birth is given as 16 October 1965, in Aden. His father's name is given as Mohd Suleiman Jama. His mother's name is given as Saqaa Haj Moh'd. Ahmed was listed as a dependant in his parents' passports, and the details there are consistent with those in his birth certificate. Save for the date of birth and registration, his details are the same or very similar to the Claimant's.
64. The Claimant's brother, Hassan Mohamed Suleiman, has been accepted as a BOC by the Defendant, and his BOC passport was produced in evidence. In support of his application for a BOC passport, he produced his Colony of Aden birth certificate, which was produced in evidence by the Claimant. His date and place of birth is given as 3 May 1962 in Aden. The birth was registered on 4 May 1962 and the certificate was issued on 11 May 1962. It gives Hassan's father's name as Mohamed Suleiman Jama. It gives his mother's name as Saka Haji Mohamed. Hassan was listed as a dependant in his parents' passports, and the details there are consistent with those in his birth certificate. Save for the date of birth and registration, his details are the same or very similar to the Claimant's.
65. The Claimant's brother, Yousef Mohamed Suleiman, has a pending application for a BOC passport. A copy of his Colony of Aden birth certificate was produced in evidence by the Claimant. It records his date of birth as 27 May 1964. The birth was registered on 28 May 1964 and the certificate was issued on 31 May 1964. It records his father's name as Mohamed Suleiman Jama. It records his mother's name as Saeeda Hag Mohamed. He is listed as a dependant in his father's passport. Save for the date of birth and registration, his details are the same or very similar to the Claimant's.
66. The Claimant produced the Colony of Aden birth certificate of her sister, Safi Mohamed Suleiman. It records her date of birth as 24 December 1958. The birth was registered, and the certificate was issued, on 29^th December 1958. Her father's name is recorded as Mohamed Suliman Jamea and her mother's name is recorded as Saka Haj Mohamed. She is listed as a dependant in her parents' passports. Save for the date of birth and registration, her details are the same or very similar to the Claimant's.
67. The Claimant has also produced Safi's Somali passport number P00056159 which records her date of birth as 1 January 1961. The Claimant does not know the reason for the later date of birth. However, it seems that this passport does relate to the same person, as the full name recorded is Safi Mohamed Suleiman and her mother's name is given as Saka Haji Mohamed.

Conclusions

68. In the light of all the evidence adduced, I am satisfied that there is a person named Qamar Mohamed Suleiman who was born in Aden on 30 September 1966. I am also satisfied that Qamar Mohamed Suleiman's parents were Mohamed Suleiman Jama and Saka Haja Mohamed, and they were of Somali heritage and nationality. Her siblings were Ali, Ahmed, Hassan, Yousef and Safi. Neither the parents nor their children became nationals of the Republic of South Yemen on or before 14 August 1968. The Defendant has already granted BOC passports to Ali, Ahmed and Hassan, thus accepting that they meet the requisite conditions to be BOCs. I cannot discern any justifiable basis upon which to distinguish Qamar Mohamed Suleiman from her brothers, when considering whether she is a BOC.
69. There is no evidence to support any suggestion that the Claimant is impersonating Qamar Mohamed Suleiman, in an attempt to obtain a BOC passport. Having considered her written and oral evidence, I am satisfied that she is indeed Qamar Mohamed Suleiman.
70. The Defendant had an understandable concern that the Claimant may have deliberately falsified her true date of birth (30 September 1972) in order to be eligible for BOC citizenship. In fact, the evidence of the Claimant's birth certificate and her first passport indicates that her true date of birth was 30 September 1966. The Claimant and/or her mother falsified the Somali passport to show a later date of birth, with the co-operation of the Consulate at the Somali Embassy. Even if the Claimant was not initially responsible for this, she perpetuated the deceit until it was no longer in her interests to do so.
71. In considering how I should treat her admitted dishonesty when assessing her claim to this Court, I was guided by the judgment of the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49, per Sir John Dyson SCJ, at [32] – [33]:

"32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant's dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…"

33. Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA's appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant's lies."

72. I am alive to the risk that because the Claimant has falsified her date of birth, she may be willing to lie to the Defendant and to this Court to obtain the benefit of a BOC passport. However, even if I discount her oral evidence on this issue, there remains authentic documentary evidence which does establish her date of birth as 30 September 1966.
73. From the expert and factual evidence in this case, and in the Nooh litigation, it does appear that Somalis (including those working in the Consulate of the Embassy of Somalia in the UAE) not infrequently give a false birth date in order to gain some real or perceived advantage, and they appear to take a casual and pragmatic attitude towards this practice, rather as if an individual's birth date is not of any particular consequence. I suspect that this attitude probably stems from the lack of importance of birth dates in Somali culture and society, as documented by Dr Hoehne.
74. Although the Claimant has knowingly used a passport with a false date of birth, which may be an offence in the countries in which she resides, or to which she has travelled, that does not in law disqualify her from the status of BOC to which she is otherwise entitled.
75. Therefore I conclude that the Claimant is entitled to a declaration that she is a BOC.

Note 1   The 2013 Guidance has now been replaced by revised Guidance issued in April 2018.    [Back]

Note 2   Also spelt “Crater”    [Back]