Din, R (On the Application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, May 04, 2018, [2018] EWHC 1046 (Admin)

Resolution Date:May 04, 2018
Issuing Organization:Administrative Court
Actores:Din, R (On the Application of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWHC 1046 (Admin)

Case No: CO/4896/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 4 May 2018

Before :

MICHAEL FORDHAM QC

(Sitting as a Deputy High Court Judge)

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Between :

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Joseph Markus (instructed by Turpin & Miller LLP) for the Claimant

Vinesh L Mandalia (instructed by Government Legal Department) for the Defendant

Hearing dates: 7 March 2018

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MICHAEL FORDHAM QC :

Introduction

  1. This claim for judicial review is brought against decisions dated 14 July 2016, 16 December 2016 and 22 September 2017, in which the Secretary of State refused to confirm the claimant's status as a British citizen. The parties agree that I have to determine a central question of fact: whether the claimant was born in Oxford on 26 June 1968, as she claims. They agree that, if she was, she is a British citizen by operation of statute law (section 11(1) of the British Nationality Act 1981, read with section 4 (as enacted) of the British Nationality Act 1948 and section 2(1)(a) (as enacted) of the Immigration Act 1971). They agree that this is an objective question of fact to be determined by the Administrative Court, on all the evidence now before the Court, including any oral evidence. There was no resistance from the Secretary of State to the claimant's application to rely on the latest available documentary evidence, and none by the claimant to the Secretary of State's application to cross-examine the claimant and Mohammed Yusuf who gave evidence in support of her claim. I granted both parties' applications.

  2. This is no conventional judicial review of the Secretary of State's conclusions, on a secondary and supervisory basis, and on the evidence which was before her. The Court's substitutionary function is a familiar one. Back in 1939 the Court of Appeal explained, in the compulsory purchase case of White & Collins [1939] 2 KB 838, that determining whether 23 acres of Highfield House in Ripon were ``part of a park'' was a question of fact for the Court to answer for itself, on the evidence before the Court. In the present context the Court's substitutionary review is necessitated by Article 6 of Schedule 1 to the Human Rights Act 1998, as explained by Keene LJ for the Court of Appeal in R (Harrison) v Secretary of State for the Home Department [2003] INLR 284 at §34. It is a good working illustration of the procedural adaptability and contextually enhanced level of scrutiny which judicial review can deliver, where necessary in the interests of justice. It is common ground that the burden of proof is on the claimant (1971 Act s.3(8)) and the standard of proof is the balance of probabilities: R (Begum) v Secretary of State for the Home Department [2014] EWHC 2968 (Admin) §§20-24. That is the approach which I have taken to the evidence, and to the making of findings.

    Secure Background Facts

  3. Having read the documents, heard from the two witnesses and considered all the submissions, I am satisfied that a sound starting point for this case is the following secure framework of background facts.

  4. Khair Din married Razia Begum in Sahiwal, Pakistan on 1 March 1967. They came to the United Kingdom on 25 June 1967. They lived in Oxford, where Razia Begum gave birth to their two daughters: Yasmeen on 26 June 1968 and Nuzma on 2 October 1969. Yasmeen was born in the Churchill Hospital where her hospital `baby tag' bore the name Yasmeen Din. Her birth certificate recorded her name as Yasmeen and her father as Khair Din.

  5. The family home was in Oxford where they lived with Khair Din's two sons from his previous marriage to Sherifaan Begum. That marriage had ended in divorce recorded on 23 February 1967. Razia Begum had travelled to the United Kingdom in June 1967 (on the face of it as Sherifaan Begum). The boys, Mohammed Yusuf born in Pakistan on 1 October 1955 and Mohammed Younus born in Pakistan on 2 September 1958, had come to the United Kingdom on 10 August 1967. In November 1972 Razia Begum took Yasmeen and Nuzma with her to Pakistan, where they remained.

  6. Mohammed Yusuf was a 12 year-old schoolboy in Oxford in June 1968 when baby Yasmeen was brought home from the Churchill Hospital. They lived in the same family home for the next four and a half years until November 1972, when Yasmeen and her sister Nuzma left with their mother for Pakistan. By then, Mohammed Yusuf was 17.

  7. In June 1979 a girl called Yasmeen (sometimes written as Yasmin) began attending the Government Women's Primary/Middle School Tehsil in Multan, Pakistan. School records show 2 June 1979 as the admission date to the school for the new student whose name is there recorded (in the English translation) as ``Yasmin Sultana''. The date of birth of Yasmeen Sultana is given as 4 January 1968. Her father is named as Khair Din. It would have been normal for a girl to begin her education aged around 11, and to have obtained an official identity card with a personal identification number (CNIC) at around age 18. The official identity card would later have been used for a national computerised database (known as NADRA) from around 2000.

  8. By around 1987 Yasmeen Sultana received an official identity card, with her CNIC number. There is reference to a NADRA national identity card having been obtained on 11 November 2009. According to a NADRA Family Registration Certificate issued on 19 November 2012, Yasmeen Sultana was issued with a CNIC number which ended in 589-4. Her date of birth was recorded as 4 January 1968. Her father's name was recorded as Khair Din and her mother's name as Razia Begum. A Land Register document for 2011/12 recorded ``Yasmeen D/O [daughter of] Khair Din'' with a sister ``Nazma Bano D/O Khair Din''. When Yasmeen Sultana was issued with a Pakistan passport on 21 November 2013, her CNIC number was the 589-4 number, her date of birth was given as 4...

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