Taher, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, August 31, 2018, [2018] EWHC 2274 (Admin)

Resolution Date:August 31, 2018
Issuing Organization:Administrative Court
Actores:Taher, R (on the application of) v Secretary of State for the Home Department
 
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Case No: CO/266/2017

Neutral Citation Number: [2018] EWHC 2274 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31 August 2018

Before :

MRS JUSTICE LANG DBE

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Between :

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Adrian Berry (instructed by Aden & Co) for the Claimant

Sarabjit Singh QC and Jo Moore (instructed by the Government Legal Department) for the Defendant

Hearing date: 24 July 2018

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JudgmentMrs Justice Lang :

  1. The Claimant applies to quash the decision of the Defendant, made on 28 September 2016, to refuse his application for a passport as a British Overseas citizen (``BOC'').

  2. The Claimant claims to be a BOC on the basis that he 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 22 February 2013. On 15 April 2013, the Defendant sought further information from him. The Claimant sent further information in July 2013. The Defendant's representative interviewed him on 7 June 2015.

  4. Following the letter of refusal on 28 September 2016, there was pre-action protocol correspondence and the claim was filed on 30 December 2016, though not issued by the court until 18 January 2017. Permission to apply for judicial review, and an extension of time, was granted by Edward Pepperall QC, sitting as a Deputy Judge of the High Court, on 16 February 2018.

  5. On 12 December 2017, I dismissed the Defendant's application to strike out this claim, together with other similar claims.

  6. 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

  7. The parties agreed the legal basis upon which a Somali born in Aden may be a BOC and entitled to a passport accordingly.

  8. 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.

  9. 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''.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.''

  15. 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.''

  16. 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.

  17. 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.''

  18. 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.''

  19. 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.

  20. 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.

  21. 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.

  22. 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...

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