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Cite as: [2006] ScotCS CSOH_16, [2006] CSOH 16

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 16

OPINION of LORD CARLOWAY

in the petition of

MUHAMMED TARIQ JAVED and others

Petitioners;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent;

for

Judicial Review of a Decision to Remove the petitioners

________________

Petitioner : Party

Respondent : RN Thomson; Solicitor to the Advocate General

31 January 2006

1. Background

[1] The petition is barely more than a skeleton account of the petitioners' circumstances. However, from what is averred in it, the responses in the answers and the productions lodged, some form of picture emerges. The petitioners are a family consisting of the first petitioner (aged 52), his wife (53) and five children (11 to 20). All were born in Pakistan. They entered the United Kingdom on 27 March 2001 upon a visitors' visa granted in Islamabad in February of that year. The visa expired on 17 July 2001. The petitioners remained in the United Kingdom and were arrested by an immigration officer on 29 January 2002. On that date, they were each served with a Notice under section 10 of the Immigration and Asylum Act 1999 (c 33) stating that they were liable to be removed as, amongst other things, they were persons who had failed to observe a condition of their leave to enter.

[2 ] The petitioners then applied for asylum. The basis for this centred upon a land dispute with a neighbour in Pakistan. It was contended that this neighbour had threatened the petitioners and twice attacked them. The first petitioner claimed to have been unable to obtain help from either the local police or the village elders. The respondent's Immigration and Nationality Directorate refused the application on 27 March 2002 on the basis that there was no well founded fear of persecution. If the first petitioner's narrative were correct, then it was a matter for the Pakistan authorities, notably the courts, to deal with. Human rights grounds for not removing the petitioners were also rejected. An appeal against that refusal was heard by an Adjudicator in Glasgow in August 2002, when the petitioners were represented by a solicitor. The appeal was dismissed on 17 September 2002. In a detailed determination, the Adjudicator considered that the local police and court system were able to provide an adequate remedy for any problems faced by the first petitioner in connection with his land.

[3 ] On 12 November 2004 the petitioners made further applications, this time for leave to remain in the United Kingdom as dependent relatives of the second petitioner's brother, a British citizen. This failed because the petitioners had other close relatives in Pakistan to whom they could turn for support. The petitioners were accordingly again served with notices that they were liable to be removed from the United Kingdom to Pakistan.

2. The Petition and Answers

[4 ] The petition seeks reduction of the notices of liability to removal. The grounds presented read as follows:

"5. The respondents...should have considered...that from the information supplied by the petitioners at every occasion that the petitioners should have been considered by a proper application of the available Immigration and Nationality Acts and Rules and Section 2(1) of the British Nationality Act 1981, to be eligible to be granted British Citizenship by descent of their Parents.

6. The petitioners claim to British Citizen status is founded upon the fact that the First and Second named petitioners Fathers (Deceased) were British Citizens and the Second named petitioners Mother is still a British Citizen, their Passports are produced and are held to be incorporated herein.

7. The Third, Fourth, Fifth, Sixth and Seventh named petitioners are the children of the First and Second named petitioners and are accordingly the grandchildren of the said British Citizens referred to in paragraph 6."

The petitioners have lodged, amongst other passports: (i) a cancelled United Kingdom passport of one Muhammad Sharif, born in 1929, stating him to be a citizen of the United Kingdom and Colonies; (ii) a United Kingdom passport for Shah Mohammad, born in 1920, stating him to be a British citizen; (iii) a European Community passport of a British citizen, Sharifan Bibi, born in 1931, for the period 1995 to 2005. The passport holders were all born outwith the United Kingdom.

[5 ] The response in the answers to this entirely new contention is that the petitioners have not submitted any application on the basis that any of them are British citizens or are entitled to be regarded as such. The respondent comments that the information provided demonstrates, at best, that three of the parents of the first and second petitioners were British citizens at some point. The section to which the petitioners refer provides that a person born outside the United Kingdom shall be a British citizen if, at the time of his birth, one of his parents is a British citizen otherwise than by descent. The first and second petitioners' fathers only registered for British citizenship long after the births of the first and second petitioners.

3. The First Hearing

[6 ] The petition is signed by counsel, although there is no solicitor's name or address on the backing. The Minute of Proceedings records that a Mr McDonald, who is described as a para-legal, was involved in its presentation on 13 June 2005. The following day, the interlocutors record, the first petitioner was heard personally on his motion for first orders. A First Hearing was fixed for 18 January 2006. On 9 January, a motion was enrolled on the petitioner's behalf to discharge that Hearing. This called on 11 January when, it is minuted, the petitioner again appeared personally but seemed to be unable to understand or speak any English, albeit that he had, of course, been living in the United Kingdom for almost five years. He had no interpreter present. The Lord Ordinary, faced with this problem and as an emergency measure, allowed Mr McDonald to speak for him. The motion was withdrawn. The Lord Ordinary advised the petitioner that an interpreter would be required at the First Hearing and that Mr McDonald would not be permitted to represent him without leave of the court.

[7 ] At the First Hearing, the first petitioner appeared personally. An Anwar Ul Haq appeared as his interpreter in Punjabi. He was sworn faithfully to perform the duties of interpreter for the petitioner. Mr McDonald was also present in Court. It quickly became clear that the petitioner himself had little desire to say anything himself and the interpreter persistently consulted Mr McDonald on what he (the interpreter) ought to say. It transpired that the first petitioner again wanted to discharge the First Hearing. The basis for this was that the petitioners had written to the respondent's Integrated Casework Directorate in Liverpool seeking to be registered as British citizens. The basis for this was that the parents of the first and second petitioners were British citizens at the times of the births of both these petitioners. This application had been posted on the day before the First Hearing and the respondent was not in a position to state whether it had even been received. Having regard, amongst other matters, to the time which had elapsed since the presentation of this petition, during which any application to the respondent to be registered as citizens could have been made, I refused to discharge the First Hearing.

[8 ] On attempting to ascertain what, if anything, the first petitioner wished to state in support of the petition, the same problem of the triangle of the petitioner, the interpreter and Mr McDonald was encountered. Having admonished the interpreter that I wished him to interpret what the petitioner wanted to say and did not wish him to act as a conduit for Mr McDonald's views, I adjourned to enable the petitioner to formulate in some coherent fashion what he did wish to submit to the Court. On reconvening, the petitioner submitted that the petitioners claimed British citizenship for the reasons set out in the petition. Reference was made to section 1 of the British Nationality Act 1948 (11 & 12 Geo 6, c. 56) and to the Indian Independence Act 1947 (10 & 11 Geo 6, c 30).

[9 ] The respondent submitted that the petition was without merit and ought to be dismissed. No decision of the respondent had been criticised; other than on the basis that the decision makers ought to have understood that the petitioners were entitled to be considered as British citizens. However, none of these decision makers had been alerted to the fact that this is what the petitioners were claiming. They had not made this claim when applying for a visitors' visa in Islamabad and there was no obligation on the United Kingdom authorities in Pakistan to anticipate that applicants might be entitled to citizenship by descent from their parents or grandparents. Even if they were so entitled, not every person with such an entitlement wishes to be a British citizen. At the earlier motion to discharge the First Hearing, the petitioners had stated that they wished to found upon R (Hicks) v Secretary of State for the Home Department [2005] EWHC 2818 (Admin), but it transpired that this case had no relevance to the petition.

The terms of the petition were irrelevant. The 1981 Act, to which it referred, had no application to the claims of the first and second petitioners to British citizenship, since they were born before it. If there were to be any relevant claim, the petitioners would at least have had to state that at least one of the four parents was a British citizen at the time of the birth of the relative petitioner. No such averment was made.

4. Decision

[10] The averments in the petition are irrelevant. The Notices of liability to removal are based on the petitioners having, inter alia, breached conditions of their visitors' visa. It is not disputed that the petitioners remained in the United Kingdom beyond the period permitted by that visa. There are no valid grounds for challenging the validity of the Notices set out in the petition. What the petition does is state that the United Kingdom authorities ought to have recognised that the petitioners were entitled to British citizenship. However, there is no general obligation upon the immigration authorities to research that area and make a determination on that issue in the absence of a request to do so. At the time of the decisions, indeed until the day before the First Hearing, the petitioners had not applied for British citizenship or for United Kingdom passports. Quite the contrary, they applied for and obtained a visitors' visa only and travelled, presumably, as nationals of Pakistan. Furthermore, the petition does not set out a relevant and specific case demonstrating that the petitioners, or any one of them, are entitled to British citizenship. It proceeds upon the terms of section 2(1) of the British Nationality Act 1981 (c 61). However, that Act applies to persons born after its commencement and therefore not to the first or second petitioners. Section 1 provides, broadly, that a person born in the United Kingdom is a British citizen if, at the time of his birth, either of his parents was a British citizen or one of them becomes a British citizen during his childhood. None of the petitioners were born in the United Kingdom. Section 2 provides that a person born outside the United Kingdom shall be a British citizen if, at the time of his birth, one of his parents was a British citizen other than by descent. Nowhere in the petition is it averred that, at the time of the births of any of the children petitioners, either the first or the second petitioner was a British citizen or even that one of them was entitled to such citizenship other than by descent. At the Bar of the Court, the first petitioner sought to rely upon the 1948 Act (supra). Section 1 of that Act provided that every citizen of Pakistan had the status of being a British subject. This permitted a Pakistan citizen to be known as a "Commonwealth citizen". Whatever the position may have been in 1948, there have been considerable legislative changes since then, not least the Commonwealth Immigrants Act 1962 (10 & 11 Eliz c 21), which have resulted in the respondent being able to restrict entry into the United Kingdom of Commonwealth, as distinct from British, citizens. The petitioners do not set out any relevant case that they are entitled to British citizenship and therefore to stay indefinitely in the United Kingdom. For these reasons, I will sustain the respondent's second plea-in-law and dismiss the petition.