QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| AMIRUL HUSON
- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT (ENTRY CLEARANCE OFFICER)
Ben Keith (instructed by Government Legal Department) for the Defendant
Hearing date: 24th February 2021 by MS Teams
Crown Copyright ©
HH Judge Wood QC :
"In relation to the third ground of challenge that the Defendant's decision based on legitimacy grounds is discriminatory by reference to articles 14 and 8, it would appear that in another case raising the same issue (CO/140/2019), permission to apply for judicial review has been granted, and a hearing is anticipated. The Defendant's representations on whether this case should be linked and/or consolidated are invited. Further, in relation to the first and second grounds, it is at least arguable that a reviewing court can be seized of these challenges and address them as a precedent fact judicial review the light of the evidence which has been submitted. A significant issue is whether or not the Defendant has correctly interpreted the submitted evidence."
"Your mother was sent a letter dated 25th April 1995 from this office. I enclose a copy for your reference. It states that it is likely that your parents wedding would not be valid under UK law. Applications made at that time for the other children from the marriage were authorised. However, the letter states that any further children from your parents' marriage would not be of legitimate descent. Your parents are aware of this fact.
You therefore do not qualify under the category in which you have applied and therefore have no such entitlement."
"15. The sponsor has stated that his second wife knew nothing about the letter and in any event she was illiterate. The sponsor himself, despite living in the United Kingdom now for some 40 years, spoke little or no English and accordingly I accept that such a letter may have escaped the notice of his second wife.However at that same time the sponsor returned to Bangladesh to deal with applications from other children. Whether or not they read the letter the legal and factual basis remains the same."
"15. There is further guidance in respect of the law on this matter as contained in McDonald's Immigration Law and Practice (eighth edition) volume 1, chapter 2.20. This also records that other differences in the treatment of legitimate and illegitimate children were removed on 1 July 2006 and that those not previously recognised, such as the children of a polygamous marriage, will now be recognised and will require the right of abode."
"28. At the commencement of his submissions, the appellant's representative submitted that the respondent's decision was not in accordance with the law and that the appeal should be allowed. It is clear to me, however, that the respondent, whilst properly identifying that section 10 of the 2002 Act plays a part of the consideration process, it is also essential that the requirements of the relevant regulations should also be in conjunction with the evidence submitted in support of the application (sic). In this regard there is a burden upon an applicant to provide evidence which establishes a relationship. This is now permitted by the provisions of section 9 of the 2002 Act which amends the terms of section 2 of the British Nationality Act 1981. This now includes children of a mother or father who has British nationality but who is the issue of a second polygamous marriage and who previously were considered to be illegitimate for the purposes of the British nationality acts because in UK law there could be no lawful second marriage whilst a person remained married to another spouse. Consequently, the children of such a marriage would be considered as illegitimate and not entitled to be considered as the dependent child of a CKUC.
29. It is significant that the respondent appears not to challenge the relationship between the appellant and sponsor, even though it appears that at the time of the birth the appellant sponsor was already 66 years of age. Furthermore, the respondent appeared not to have reminded the appellant that in order to issue the appellant with a certificate of entitlement, he is obliged to provide all necessary evidence which is prescribed by the relevant regulations which are effectively created by section 10 of the 2002 act.
30. Unfortunately, the appellant's representative merely sought to complain that the respondent had misdirected himself in law, because he had considered that as a child of a second (polygamous) marriage the appellant would be considered as illegitimate and therefore have no lawful entitlement. He believed this would be sufficient to allow the appeal. However, having carefully considered the provisions of section 10 and the requirement to meet the terms of the relevant regulations created by it, I find that this is a step which the respondent has so far not taken.
31. I do accept that the respondent has misdirected himself because it is open to the appellant, as the child of a polygamous marriage, to seek the right to join his parents in the United Kingdom by way of a certificate of entitlement. In the first instance, however, he must establish that relationship. On the evidence before me, I am not satisfied that such a relationship has genuinely been established….."
- "You have now applied again and have provided a DNA legal report dated 22 January 2019 which confirms that Atiful Nessa is your mother. However, this report does not confirm that you are related as claimed to Abdur Rahim.
- As stated above, you were advised in 2011 by our office in Dhaka that you may wish to submit DNA evidence in support of your application. At that time it would have been open to you to provide DNA evidence to confirm if and how Abdur Rahim relates to you. This remained the case until the passing away of Abdur Rahim on 5 March 2018.
- I note that the immigration judge was not satisfied that you are related as claimed to your sponsor and I am not satisfied that you have demonstrated that you are related as claimed to Abdur Rahim.
- Furthermore I note that the immigration judge determined that the ECO was misdirected and that as the child of a polygamous marriage you were entitled to seek the right to join your parent in the UK by way of a certificate of entitlement. However, the immigration judge did not make a determination that the marriage was considered valid under UK law. Nationality is a matter of law that can be determined conclusively only by the courts. On the basis of the information and documentary evidence that you have provided, we are not satisfied that you have established that your birth is legitimate under UK law."
The grounds of challenge
(1) Has the Defendant acted unlawfully in rejecting the evidence of a relationship between AH and Mr Rahim as son and father?
(2) If this relationship had been established on the evidence, has the Defendant acted unlawfully insofar as reliance is still placed upon an absence of legitimate descent as the child of a polygamous marriage?
(3) In any event, has there been a breach of the ECHR, articles 14 and 8 if the Defendant's approach to the decision-making process was otherwise lawful?
The relevant law
2. Statement of right of abode in United Kingdom.
(1) A person is under this Act to have the right of abode in the United Kingdom if—
(a) he is a British citizen; or
(b) he is a Commonwealth citizen……..
2 Acquisition by descent.
(1) A person born outside the United Kingdom ……. after commencement shall be a British citizen if at the time of the birth his father or mother—
(a) is a British citizen otherwise than by descent; or……….
(9) For the purposes of this Act—
(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but
(b) subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him ;
and the expressions " mother ", " father ", " parent ", " child " and " descended " shall be construed accordingly.
11 Grounds on which a marriage is void.
A marriage celebrated after 31st July 1971……..shall be void on the following grounds only, that is to say—
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.
1 Legitimacy of children of certain void marriages
(1) The child of a void marriage or a void civil partnership, whenever born, shall, subject to subsection (2) below and Schedule 1 to this Act, be treated as the legitimate child of his parents if at the time of the insemination resulting in the birth or, where there was no such insemination, the child's conception(or at the time of the celebration of the marriage or the formation of the civil partnership, if later) both or either of the parties reasonably believed that the marriage or civil partnership was valid.
(2)This section only applies where—
(a) the father of the child was domiciled in England and Wales at the time of the birth, or if he died before the birth, was so domiciled immediately before his death, or
(3) It is hereby declared for the avoidance of doubt that subsection (1) above applies notwithstanding that the belief that the marriage or civil partnership was valid was due to a mistake as to law.
(4) In relation to a child of a void marriage born after the coming into force of section 28 of the Family Law Reform Act 1987, or a child of a void civil partnership (whenever born), it shall be presumed for the purposes of subsection (1) above, unless the contrary is shown, that one of the parties to the void marriage or civil partnership reasonably believed at the time of the insemination resulting in the birth or, where there was no such insemination, the child's conception (or at the time of the celebration of the marriage, or the formation of the civil partnership, if later) that the marriage or civil partnership was valid.
"Legitimacy and void marriages
In some cases the child of a void marriage can be treated as legitimate by virtue of the Legitimacy Act 1976. Section 1 of that Act provides that the child of a void marriage should be treated as the legitimate child of the parents, if either, or both, of the parents reasonably believed themselves to be validly married in English law and the father was domiciled in England and Wales at the time of either:
• the insemination resulting in the birth
• where there was no such insemination, the child's conception
• the celebration of the marriage, if the marriage takes place between conception and birth
This applies even where the belief that the marriage was valid was due to a mistake as to law. This provision does not benefit children born to a couple before a void marriage is contracted. This particularly applies where the child's parents were in a polygamous marriage, and the second marriage has been deemed to be invalid because the father was domiciled in the UK. If the marriage is void, you must determine whether the parents reasonably believed it to be valid. In the case of a child born after section 28 of the Family Law Reform Act 1987 came into effect on 4 April 1988, you must assume that the parents reasonably believed that the marriage was valid unless there is evidence to the contrary. It may be appropriate to assume reasonable belief in other cases (for example on the part of a woman married in a country whose law permits polygamy). The courts have held that a reasonable belief that the marriage was valid in English law was required. It was not sufficient that, for example, one of the parents believed it to be valid in Bangladeshi law. If the couple had been told that we could not regard the marriage as valid before the conception of the child took place, the child cannot benefit from the provisions of the Legitimacy Act. If you advise a couple that their marriage is invalid, you must therefore note that information in Home Office records, so that we have evidence that they are aware that their marriage is regarded as void if they have any future children. If you recognise a claim for a child who is treated as legitimate under the 1976 Act, you must explain this using the following wording:
'Nationality is a matter of law that can be determined conclusively only by the courts. On the basis of the information and documentary evidence that you have provided, the Secretary of State is prepared to regard you as a British citizen under section 2(1) of the British Nationality Act 1981, by virtue of section 1 of the Legitimacy Act 1976.'"
"Domicile of choice
A person can acquire a domicile of choice instead of their domicile of origin. To do this they must both:
- Reside in a place
- form a clear and fixed intention of making their permanent home or indefinite residence in that one country
If a person has acquired a domicile of choice, they will revert automatically to their domicile of origin if they leave the place in question and have the intention of abandoning their permanent home or indefinite residence there. They will then retain the domicile of origin until they acquire another domicile of choice.
Establishing a domicile of choice There are 2 main elements to the acquisition of a domicile of choice:
For immigration purposes the test is whether a person has made the alleged domicile of choice their home with the intention of establishing their family there and ending their days in that country (unless and until something happens to make them change their mind).
The fact that a person has not resided in a country for a long time may not prevent them from acquiring a domicile of choice if they intend to make it their permanent home. For example, if a person clearly intends to live permanently in another country, they could acquire a domicile of choice on arriving to live there. On the other hand, although long residence is an important factor in assessing domicile, it may not in itself prove that a domicile of choice has been acquired.
The courts have held that a domicile of choice cannot be acquired by illegal residence.
The fact that a person is in the UK on a time restriction does not necessarily mean that a domicile of choice here cannot be acquired. However, you must take it into account when considering whether the person had formed a genuine intention of remaining here permanently. Unless it can be shown that the person had reason to expect - as well as just hope - that he or she would remain in the UK, it would be difficult to establish that the person had acquired a change of domicile.
To show a change of domicile it is essential to establish an intention of remaining in the place permanently or for an unlimited time. Every event in a person's life may be relevant. You must therefore take into account of all the evidence which can reasonably be gathered. Declarations of intention to remain permanently or to retire in a place are important, but you must bear in mind the context in which they are made and whether they are consistent with the person's actions."
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The respective arguments
"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, as both Mr Richmond and Mr Pannick agree. 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."
"84. Article 14 guarantees the enjoyment of the rights and freedoms set forth in the Convention without discrimination. It has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions, and to this extent it is autonomous. For Article 14 to become applicable, what is necessary, and also sufficient, is for the facts of the case to fall "within the ambit" of one or more of the Articles of the Convention or its Protocols (see Kiyutin, cited above, § 54, and Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV)."
His Honour Judge Wood QC
Note 1 As will become apparent, until the decision of the First Tier Tribunal in 2011, the defendant's stance had not been one which challenged that Mr Rahim was the father of AH. That is no longer the case. [Back] Note 3 Page 103. This is an analogue duplicate, but contains the registration date of 24th June. It is not understood why the defendant contended at some point that the birth had not been registered for 10 months, and it has not been asserted that this document is forged or not genuine. [Back] Note 5 It is not clear whether this is the same letter as that referred to as having been sent in April 1995 (see note 8 below) as no copies of either have been produced, but it would appear to be of the same gist. [Back] Note 6 If the passport evidence correctly supports a conclusion that Mr Rahim was in Bangladesh between the two date stamps, this application must have been made shortly before his return to the United Kingdom [Back] Note 8 Adding to the confusion relation to missing documentation this is the first mention of a letter in April 1995. Neither counsel were able to shed any light on whether this is the same letter as the December 1994 letter referred to in the 2002 letter from the vice consul, because regrettably it is also unavailable, despite diligent searching. [Back] Note 10 It is difficult to comprehend what further evidence the applicant might have been able to adduce, bearing in mind that the application had been refused on a point of principle, namely the absence of legitimacy. [Back] Note 14 this guidance was brought to the attention of the court by Mr Keith, counsel for the defendant. Neither he nor Mr Ahmed were able to identify the court decisions which appear to have provided the basis for these statements. Insofar as the approach is not disputed, and little turns on it, the references were not further investigated. [Back]
Note 1 As will become apparent, until the decision of the First Tier Tribunal in 2011, the defendant's stance had not been one which challenged that Mr Rahim was the father of AH. That is no longer the case. [Back]
Note 3 Page 103. This is an analogue duplicate, but contains the registration date of 24th June. It is not understood why the defendant contended at some point that the birth had not been registered for 10 months, and it has not been asserted that this document is forged or not genuine. [Back]
Note 5 It is not clear whether this is the same letter as that referred to as having been sent in April 1995 (see note 8 below) as no copies of either have been produced, but it would appear to be of the same gist. [Back]
Note 6 If the passport evidence correctly supports a conclusion that Mr Rahim was in Bangladesh between the two date stamps, this application must have been made shortly before his return to the United Kingdom [Back]
Note 8 Adding to the confusion relation to missing documentation this is the first mention of a letter in April 1995. Neither counsel were able to shed any light on whether this is the same letter as the December 1994 letter referred to in the 2002 letter from the vice consul, because regrettably it is also unavailable, despite diligent searching. [Back]
Note 10 It is difficult to comprehend what further evidence the applicant might have been able to adduce, bearing in mind that the application had been refused on a point of principle, namely the absence of legitimacy. [Back]
Note 14 this guidance was brought to the attention of the court by Mr Keith, counsel for the defendant. Neither he nor Mr Ahmed were able to identify the court decisions which appear to have provided the basis for these statements. Insofar as the approach is not disputed, and little turns on it, the references were not further investigated. [Back]