United Kingdom Asylum and Immigration Tribunal

PH (ex-CUKC with UK-born grandmother) Bahamas [2006] UKAIT 00083

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 17.10.2006

Date Determination notified: 04 November 2006

Before

Mr CMG Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Freeman and

Senior Immigration Judge Perkins

Between

PH	APPELLANT
and
Entry Clearance Officer, NEW YORK	RESPONDENT

No appearance for the appellant Mr K Norton for the respondent

DETERMINATION AND REASONS

A citizen of the Bahamas with a grandmother born in the United Kingdom lost his CUKC status on the independence of the Bahamas and, despite the misleading terms of the visa application form he completed, had no right of abode capable of being continued under the British Nationality Act 1981.

1. This is a case where the Tribunal has ordered reconsideration of a decision of Immigration Judge Wood TD, sitting at Hatton Cross on 27 June 2005,  a certificate of entitlement appeal by a citizen of the Bahamas. The Tribunal thought the judge might have made an error of law in relying on the version of the Immigration Acts set out in the explanatory statement: since he does not seem to have got any further help from the presenting officer before him, we have every sympathy for him in doing so; however we have of course to decide the case according to law. Since there was no challenge in the application for reconsideration to the judge's positive credibility findings on the appellant's family history, we can take that as established and review his immigration status in this country as it altered over the years. We need to do this, because the version of the law presented to the judge was the one contained in the Immigration Act 1971 as originally enacted; but there were significant changes brought about by the Bahamas Independence Act 1973 and the British Nationality Act 1981.
2. Appellant's status before 1971 Act

The appellant was born on 9 December 1944 in the United States, the son of Bahamian parents, and a British subject by virtue of his father's birth in the Bahamas (at that time a British colony). His paternal grandmother was born in the United Kingdom: otherwise he had only remoter connexions with this country. On the commencement of the British Nationality Act 1948 on 1 January 1949 he became a citizen of the United Kingdom and Colonies [CUKC], and on reaching 21 in 1965 he renounced the United States citizenship to which his birth there entitled him.

3. Status under 1971 Act

The appellant had the right of abode in this country by virtue of the following provision of the Act [s. 2 (1) (b)], being a CUKC

…born to …a parent who had that citizenship at the time of the birth …and the parent either

(i) then had that citizenship by his birth in the United Kingdom or in any of the Islands [meaning the Channel Islands or the Isle of Man: see s. 33]; or

(ii) had been born to a parent who at the time of that birth or adoption so had it.

For present purposes we can assume in his favour that there was no relevant difference between his parents' status at his birth as British subjects belonging to the Bahamas, and the one they, like him, acquired in 1949 as CUKCs. The reason of course that he had the right of abode under the 1971 Act as originally passed was that his paternal grandmother had been born here; so his father had been born to a parent who held that citizenship by birth.

4. Bahamas Independence Act 1973

The general provision for citizenship under s. 2 (2) was as follows:

Except as provided by section 3 of this Act, any person who immediately before the appointed day is a citizen of the United Kingdom and Colonies shall on that day cease to be such a citizen if he becomes on that day a citizen of The Bahamas.

There is no suggestion that the appellant did not become a citizen of the Bahamas on the appointed day (10 July 1973); so he only retained his CUKC status if he fell under one of the exceptions in s. 3. The only apparently relevant one is set out in s. 3 (1) (a):

Subject to subsection (5) of this section, a person shall not cease to be a citizen of the United Kingdom and Colonies under section 2 of this Act if he, his father, or his father's father –

(a) was born in the United Kingdom or in a colony …

Unfortunately for the appellant, s. 3 (5) (a) provided that

…references to a colony shall be construed as not including references to any territory which, on the appointed day, is not a colony for the purposes of the British Nationality Act 1948 as that Act has effect on that day, and accordingly do not include references to the Bahamas …

Since the appellant's grandmother's birth here did not affect the position, that meant he lost his CUKC status on 10 July 1973. Whether he lost his right of abode with it might be a question of some historical interest; but, in view of the terms of the 1981 Act, which follow, could not affect the result of this case.

5. British Nationality Act 1981

Section 39(2) of the 1981 Act replaced s. 2 (1) (b) of the 1971 Act (see 3) with the following:

A person is under this Act to have the right of abode in the United Kingdom if –

…he is a Commonwealth citizen who

(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2 (1) (d) or section 2 (2) of this Act as then in force; and

(ii) has not ceased to be a Commonwealth citizen in the meanwhile.

This appellant has of course been a Commonwealth citizen all along; but, whether or not he retained, following the Bahamas Independence Act 1973, the right of abode he had enjoyed on the coming into force of the Immigration Act 1971, that was a right he had held under s. 2 (1) (b) of the 1971 Act (see 3), and not under s. 2 (1) (d). As originally enacted, the former had extended the right of abode to any Commonwealth citizen

…born to …a parent who at the time of the birth had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

Section 2 (2) refers to women Commonwealth citizens married to a CUKC, and is not relevant to this case. Section 2 (1) (d) cannot of course help this appellant, since neither of his parents were born in the United Kingdom or Islands. It must follow that he has not since the coming into force of the 1981 Act on 1 January 1983 been entitled to the right of abode in this country, and the certificate of entitlement was rightly refused, though for reasons which the judge found to be wrong, and on which his decision has not been challenged.

6. General

We were somewhat concerned that these proceedings had begun with an out-of-date view of the relevant nationality law being put forward by an entry clearance post which should have been well in the mainstream of the modern world, and continued before the judge without that view being corrected by the presenting officer. In fact the potential for confusion had arisen even on the visa application form, which invites the applicant to make his application by ticking one of a number of boxes, the relevant one being "As someone who, at birth, was a citizen of the United Kingdom and Colonies and has or had a grandparent born … in the United Kingdom". As we have established, not without some trouble ourselves, that was some way from qualifying this appellant for the right of abode.

7. Mr Norton helpfully referred us to the guidance notes (INF 12) available on line (at www.ukvisas.gov.uk ) which do seem correctly to state the law as we have found it, both for former CUKCs and for Commonwealth citizens. We do not however think that an applicant issued with a visa application form which appears to offer him the right of abode ought to have to go on line to find out whether it means what it says or not before paying the fee for his application. This appellant might reasonably have thought he could get a certificate of entitlement on the strength of his paternal grandmother having been born in this country, and consideration should be given to refunding him his fee.

The original Tribunal  a material error of law. The decision is accordingly substituted following the appeal against refusal of certificate of entitlement, for reasons given at 5 above.

Senior Immigration Judge Freeman

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