R v. Immigration Appeal Tribunal, Ex parte Leonildes Fernandes de Sousa

R v IMMIGRATION APPEAL TRIBUNAL Ex parte LEONILDES FERNANDES DE SOUSA, TH/3863/76(721)

Queen's Bench Division

[1977] Imm AR 6

Hearing Date: 19 July 1976

19 July 1976

Index Terms:

Naturalisation -- British Nationality Act 1948 -- Certificate of naturalisation granted by Governor of Kenya on eve of Kenya's independence -- Certificate signed by official "of the Colonial Office, London (Authorised by the Governor)" -- Certificate later physically issued from Ministry in London -- Whether applicant naturalised in Kenya or in United Kingdom -- British Nationality Act 1948, s 10(1) & (2) -- Immigration Act 1971, s 2(1)(a).

Patriality -- 'Right of abode' -- Citizenship by naturalisation under British Nationality Act 1948 -- Certificate of naturalisation granted by Governor of Kenya -- Certificate signed by official "of the Colonial Office, London (Authorised by the Governor)" -- Certificate later physically issued from the Ministry in London -- Whether certificate conferred citizenship "by naturalisation in the United Kingdom" giving 'right of abode' -- British Nationality Act 1948, s 10(1) & (2) -- Immigration Act 1971, s 2(1)(a).

Held:

The applicant, a British Protected person resident in Kenya, was granted a certificate of naturalisation by the Governor of Kenya on the eve of Kenya's independence in 1963, namely on 11.12.63. The certificate was made subject to the applicant taking the oath of allegiance and it bore the signature of an official described as "of the Colonial Office, London (Authorised by the Governor)". After the applicant had taken the oath of allegiance (in Mombasa on 30 April 1964) the certificate was duly registered at the Home Office (on 2 October 1964) and then (on 21 October) sent to the applicant by the Passport Office at the British High Commission in Nairobi. On these facts the Court held that the applicant was naturalised in Kenya on 11 December 1963 by the Governor exercising the power given to Governors of colonial territories by s 10(2) of the British Nationality Act 1948, and she was not therefore a person having a 'right of abode' in the United Kingdom under s 2(1)(a) of the Immigration Act 1971 as a citizen of the United Kingdom and Colonies by "naturalisation... in the United Kingdom".

Introduction:

The relevant facts and law are set out in the judgment reported below.

Counsel:

C. G. Hookway for the applicant. A. Collins for the respondent. PANEL: Melford Stevenson, Caulfield and Kilner Brown, JJ.

Judgment One:

KILNER BROWN J.: In this matter Mr Hookway moves on behalf of the lady Leonildes Fernandes De Sousa for an Order of Certiorari to remove into the High Court for the purpose of its being quashed a determination of the Immigration Appeal Tribunal on the grounds set out in the statement which is attached. The matter is really based not so much on a question of law but on a question of statements. What happened here was that this lady came to this country on 17 April 1976 and she was refused leave to enter on 19 April 1976. She appealed against the refusal on the grounds that she was naturalised in the United Kingdom and in consequence did not require leave to enter. n1 The appeal was heard in the first place by an adjudicator on 7 May. From his finding, whch supported the immigration officer, there was an appeal to the Tribunal and that appeal was heard on 10 June 1976 and it was dismissed. n1 The material facts leading to the appeals to the immigration appellate authority are summarised in footnote 2, post. In broad general terms Mr Hookway puts his case in this way. He says that if one looks right back to the British Nationality Act 1948 there is really in effect only one kind of naturalisation, or put another way, that even if it is done through the process of a former colonial department in a former colony it still has the effect of being a naturalisation issued in this country. It becomes necessary therefore to go back to the British Nationality Act 1948. Section 10 reads as follows:

"(1) The Secretary of State may, if application therefor is made to him in the prescribed manner by any alien or British protected person of full age and capacity who satisfies him that he is qualified under the provisions of the Second Schedule to this Act for naturalisation, grant to him a certificate of naturalisation; and the person to whom the certificate is granted shall, on taking an oath of allegiance in the form specified in the First Schedule to this Act, be a citizen of the United Kingdom and Colonies by naturalisation as from the date on which that certificate is granted."

Sub-section (2) is an important sub-section and reads as follows:

"The functions of the Secretary of State under the last foregoing sub-section shall in any colony, protectorate or United Kingdom trust territory be exercised by the Governor; but he shall not grant a certificate of naturalisation except with the approval of the Secretary of State."

On the agreed facts here on the eve of the former colony of Kenya acquiring independent status a number of persons resident at that time in what was then a colony applied for certificates of naturalisation. n2 It is quite apparent here that there was one slight error of fact in the finding of the adjudicator and of the Tribunal in that it was believed that the certificate was, as it were, issued physically in the colony. But Mr Collins on behalf of the respondent here says that there is a much better point than that which was taken with regard to the place of issue. That point is quite simple and it leads to consideration straight away of s 2 of the Immigration Act 1971 under which of course this application by this lady was made. n2 By the Kenya Independence Act 1963 Kenya became independent on 12.12.63. An application for a certificate of naturalisation earlier made by the appellant, then Miss Fernandes (a British Protected Person of Kenya born in Mombasa on 2.9.39), was granted by the Governor "in pursuance of the powers conferred upon him by the British Nationality Act 1948"; the certificate was made subject to Miss Fernandes taking the oath of allegiance not later than 30 June 1964, and it contained the following declaration: "... upon taking the oath of allegiance within the time and in the namner required by the regulations... she shall be a citizen of the United Kingdom and Colonies as from the date of this certificate". The certificate was signed on 11 December 1963 by an official described as "of the Colonial Office, London (Authorised by the Governor)". Miss Fernandes took the oath of allegiance on 30 April 1964 before a Commissioner for Oaths in Mombasa. The certificate with the oath of allegiance was registered at the Home Office on 2 October 1964, and on 21 October 1964 the British Passport Officer at the British High Commission in Nairobi sent the certificate of naturalisation to Miss Fernandes. Section 2 of the Immigration Act 1971 indicates quite clearly that the position concerns the granting of a right of abode. Section 2(1) provides:

"A person is under this Act to have the right of abode in the United Kingdom if -- (a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands."

It seems to me that, notwithstanding the cogent and ingenious argument of Mr Hookway, to some extent he bases his proposition by importing to the word "registration" an importance which to my mind it does not deserve. If one goes back to sub-s (2) of s 10 of the British Nationality Act 1948 it is quite plain there that the process is one which might be termed a Colonial Office process. The Secretary of State in sub-s (2) would at that time no doubt have been the Secretary of State for the Colonies, but the functions of the Secretary of State are quite plainly there set out as being exercisable by the Governor. It is a matter of common knowledge, and this Court cannot escape from it, that in the various colonies over a period of years after the passing of the Act of 1948, and of the various Independence Acts no doubt, there was a flood of applications from persons who quite properly were entitled to certificates of naturalisation. But nothing that has been urged upon this Court would satisfy me that what happened in this case was anything else but a process exercised by the Governor. If it were exercised by the Governor, the mere fact that some official may have been sent from the Colonial Office to help with this flood of applications, and that subsequently this certificate may physically have been issued from the Ministry in this country, does not affect the basic proposition that it was a Colonial Office function, a power granted to the Governor and which was exercisable by the Governor. Mr Collins has pointed out that in various subsequent Acts there is a distinction to be made quite plainly between a person who is naturalised as originally a former colonial compared with a person who obtains naturalisation in this country. In an interesting examination which Mr Hookway also pursued the history of these things can be seen quite plainly. There were right from the passing of the Act in 1948 two primary methods of obtaining certificates of naturalisation. One method was to get it from, presumably, the Home Secretary if one was a person who came within his purview; the other method was to go to the Governor in effect in the appropriate colony where that person was residing. I find, notwithstanding Mr Hookway's most cogent arguments, this a very difficult proposition which he has embarked upon to try to satisfy this Court that this lady really was naturalised in this country simply because of the registration process after the naturalisation process had been achieved. Speaking for myself, I do not think it is necessary to go into the argument at any length whatsoever except to say that in my judgment this is a plain case where this lady was naturalised in Kenya and was not naturalised in this country. She has therefore in my judgment no right as she claims. The immigration officer was quite correct, so too was the adjudicator, and so also were the Tribunal. I would refuse this application, and in my view this order should not go.

Judgment Two:

CAULFIELD, J.: I agree. Judgment By-3: MELFORD STEVENSON, J.

Judgment Three:

MELFORD STEVENSON, J.: I agree.

DISPOSITION:

Application refused.

SOLICITORS:

Loxley, Sanderson & Morgan, EC2; Treasury Solicitor.