Uddin v. Secretary of State for the Home Department
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 26 October 1989 |
| Citation / Document Symbol | [1990] Imm AR 104 |
| Cite as | Uddin v. Secretary of State for the Home Department, [1990] Imm AR 104, United Kingdom: Court of Appeal (England and Wales), 26 October 1989, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6220.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Uddin v Secretary of State for the Home Department
Court of Appeal (Civil Division)
[1990] Imm AR 104
Hearing Date: 26 October 1989
26 October 1989
Index Terms:
British nationality -- claimed by descent -- appellant born before father's registration as a citizen of the United Kingdom and Colonies -- whether appellant's father was 'a person naturalised in the United Kingdom and Colonies' as defined in the British Nationality Act 1948 -- whether the issue to the appellant's father of a British Seaman's Nationality and Identity card, and a National Registration Identity card, was evidence of his being 'deemed to be a person to whom a certificate of naturalisation was granted' -- whether the appellant's father became a British citizen consequent upon the Pakistan Citizenship Act 1951 -- whether the admission to the United Kingdom of the appellant's father was a representation by immigration officers that he was a British citizen. British Nationality and Status of Aliens Act 1914 s 27(2); British Nationality Act 1948 ss 5, 12(1)(b), 13, 32(1), 32(8), sch 3 para 3; Pakistan Citizenship Act 1951; Immigration Act 1971 s 2(1)(b).
Held:
Appeal from Otton J. The appellant, a citizen of Bangladesh, claimed to be a British citizen by descent, but was refused leave to enter the United Kingdom. His claim was based on the claimed status of hs father who, when the applicant was born in 1956, had not yet registered as a citizen of the United Kingdom and Colonies. Before the learned judge at first instance, in an application for judicial review, it had been argued that the father was to be deemed to be a person to whom a certificate of naturalisation had been granted: that submission was based on the issue to the father of a British Seaman's identity card in 1937 and a National Registration card in 1940. It was also argued that under the provisions of the British Nationality Act 1948, the appellant's father became a British citizen upon the passing of the Pakistan Citizenship Act 1951. The learned judge rejected both arguments. They were repeated before the Court of Appeal where it was also submitted that by admitting the appellant's father to the United Kingdom before 1956, the immigration officers represented that he was a British citizen. Held: 1. Neither the British Seaman's identity card nor the National Registration identity card was a document on which, in the light of the provisions of the British Nationality Act 1948, a claim could be founded that the recipient was to be deemed to be a person to whom a certificate of naturalisation had been granted. 2. On the facts, the Pakistan Citizenship Act 1951 was not a 'citizenship law' within the meaning of s 32(8) of the British Nationality Act 1948, and it followed that the appellant's father did not acquire British citizenship until his registration in 1959. 3. There was no evidence to suggest that any representation had been made by immigration officers to the appellant's father up to 1956 (the date of birth of the appellant) and if there were, 'such a representation could not be properly made because no immigration officer could have had the power to override future legislation.'Cases referred to in the Judgment:
R v Immigration Appeal Tribunal ex parte Shafique Uddin [1989] Imm AR 391.Counsel:
F Slevin for the appellant; I Ashford-Thom for the respondent PANEL: Neill, McCowan LJJ, Sir Roger Ormrod Judgment By-1: McCOWAN LJJudgment One:
McCOWAN LJ: This is an appeal from a decision of Otton J given on 7 March 1989, in which he dismissed an application by the appellant for judicial review of, first a decision of an immigration officer dated 11 July 1987, second, an adjudicator's determination dated 14 March 1988, and, third, a decision of the Immigration Appeal Tribunal dated 19 September 1988. The appellant was born in Bangladesh on 20 November 1956. He arrived at Heathrow Airport on 16 September 1986 bearing a Bangladeshi passport but without entry clearance. He claimed to be a British citizen by descent. That claim has been rejected in turn by the immigration officer, the adjudicator and the Immigration Appeal Tribunal. The appellant's case is that his father, Azim Uddin, was born in India in 1912. He came to this country in 1936 and worked as a seaman for a British company for many years. As a result, on 15 June 1937 the Indian High Commissioner in London issued him with a "Certificate of Nationality and Identity issued to a British seaman". Thereafter, in 1940, he was issued with a National Registration Identity Card. On 15 August 1947 the Dominion of Pakistan came into existence and it became a member of the Commonwealth. Mr Uddin, the father, apparently returned to the Indian subcontinent in 1948, and from then until 1955, and again from 1961 to 1964, he lived in what was then East Pakistan and is now Bangladesh. There the appellant was born in 1956. In 1959 his father was registered as a citizen of the United Kingdom and Colonies and issued with a British passport. His father came to the United Kingdom with his wife in 1964 and has lived here since. As I have indicated, the appellant's claim to enter this country without leave is made on the basis that he was a British citizen by descent. He makes that claim on the basis that he complies with the terms of section 2(1)(b) of the Immigration Act 1971. That sub-section reads as follows: "2(1). A person is under this Act to have the right of above in the United Kingdom if --. . .
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a person who had that citizenship at the time of the birth or adoption, and the parent either -- (i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or (ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it . . ." The appellant must therefore show that (1) he was a citizen of the United Kingdom and Colonies, and (2) he had been born to a parent with the qualifying characteristics set out in (b)(i) or (b)(ii). To found his claim to be a citizen by descent the appellant has to show that his father was a citizen of the United Kingdom and Colonies in 1956 when he, the appellant, was born. That much is plain from section 5(1) of the British Nationality Act 1948. But first it is necessary to consider what the position of his father was on 1 January 1949 when the British Nationality Act 1948 came into force. By virtue of his birth in India prior to 1 January 1949 he was a British subject. The first point argued by Mr Slevin, however, is that the father became a citizen of the United Kingdom and Colonies at the commencement of the British Nationality Act 1948 by virtue of section 12(1)(b) of that Act. That section I must therefore read: "12(1). A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he possesses any of the following qualifications, that is to say --. . .
(b) that he is a person naturalised in the United Kingdom and Colonies . . ." Mr Slevin submits that the father was, at the coming into force of the Act, "a person naturalised in the United Kingdom and Colonies". However, section 32, the interpretation section, defines, in sub-section (1), a person naturalised in the United Kingdom and Colonies. It reads: "(a) in relation to a person naturalised after the commencement of this Act, a person to whom a certificate of naturalisation has been granted by the Secretary of State or by the Governor of a colony, protectorate or United Kingdom trust territory; (b) in relation to a person naturalised before the commencement of this Act, (i) a person to whom a certificate of naturalisation was granted by the Secretary of State, or, under section eight of the British Nationality and Status of Aliens Act 1914, by the government of any British possession other than the countries mentioned in subsection (3) of section one of this Act, or (ii) a person by virtue of subsection (2) of section 27 of the British Nationality and Status of Aliens Act 1914, is deemed to be a person to whom a certificate of naturalisation was granted, if the certificate of naturalisation in which his name was included was granted by the Secretary of State or by the government of any such British possession as aforesaid or if he was deemed to be a naturalised British subject by reason of his residence with his father or mother." Mr Slevin does not suggest that any certificate of naturalisation was ever granted to the appellant's father. His argument is that the father is "deemed to be a person given a certificate of naturalisation by government". His problem, it seems to me, is this. Section 27(2) of the 1914 Act reads: "Where in pursuance of this Act the name of a child is included in a certificate of naturalisation granted to his parents, such child shall, for the purposes of this Act, be deemed to be a person to whom a certificate of naturalisation has been granted." It is not suggested that the father's father was a person to whom a certificant of naturalisation had been granted in order to argue that the father could be deemed to be a person to whom a certificate of naturalisation has been granted under section 27(2). On what, then, I ask muself, does Mr Slevin base his claim that naturalisation be deemed? He supports it on the two cards that were issued to the father respectively in 1937 and 1940. I therefore look to see exactly what those cards are and say. The first is described on the outside as a "Certificate of Nationality and Identity issued to a British seaman". Inside it certifies that Azim Uddin "is a British Subject by birth and that the particulars stated hereon have been verified to the satisfaction of the Government of India". But, in my judgment, this stated no more than the truth. He was a British subject by birth by reason of the fact that he was born in British India in 1912. It says no more and it effected no change in his status. It certainly could not override section 12 or 13 of the British Nationality Act 1948. The second document is described on its outside as "National Registration Identity Card". Inside it shows the father as residing, on 15 April 1940, at an address in Stepney in East London. He came to be issued this document, says Mr Slevin, because London was then his home port and incidentally, submits Mr Slevin, it remained so until 1956 when he ceased to be a merchant seaman. In the intervening years he had travelled round the world with that card and entered the United Kingdom with it up to 1956 when, as I have said, he ceased to be a merchant seaman. The card, however, as it appears to me, is no more than what its title shows. No doubt, as Mr Slevin has put it to us, the father gave good service to this country as a merchant seaman during the war. One therefore feels every sympathy for him, but such feelings cannot found a claim that he is deemed to be naturalised by virtue of it. In my judgment, neither of these documents is capable, under the terms of the Act to which I have referred, of founding a claim that he was "deemed to be a person to whom a certificate of naturalisation was granted". In fact it seems to me Mr Slevin is really trying to enlarge the definition of deemed naturalisation given in section 32(1) of the Act. That I do not believe he is entitled to do. His second point is an estoppel point. It must be said that it does not appear to have been argued at any stage before. It is this. He says that by letting the father into this country in the years up to 1956 immigration control represented that the father was a citizen of the United Kingdom and Colonies. Now we know nothing of the basis on which he was let in. But certainly there is no shred of evidence that there was any representation that his father's status would remain unaffected or unchanged by future legislation. Indeed, in my judgment, such a representation could not properly have been made because no immigration officer could have had the power to override future legislation. I therefore do not consider that this point can be got on its feet. The third ground of appeal has it that the judge erred in law when he failed to find that the father became a British citizen in 1951 when he ceased to be a potential citizen of Pakistan as a result of the Pakistan Citizenship Act 1951. For the purpose of this argument it is necessary to have regard to the provisions of section 13(1) and (2) of the 1948 Act. Section 13(1) reads: "A person who was a British subject immediately before the date of the commencement of this Act and is at that date potentially a citizen of any country mentioned in subsection (3) of section one of this Act, but is not at that date a citizen of the United Kingdom and Colonies or of any country mentioned in that subsection or of Eire, shall as from that date remain a British subject without citizenship until he becomes a citizen of the United Kingdom and Colonies, a citizen of any country mentioned in subsection (3) of section one of this Act, a citizen of Eire [or Pakistan] or an alien, and the provisions of the Third Schedule to this Act shall have effect in relation to a person who remains a British subject without citizenship by virtue of this section. (2) A person remaining a British subject without citizenship as aforesaid shall become a citizen of the United Kingdom and Colonies on the day on which a citizenship law has taken effect in each of the countries mentioned in subsection (3) of section one of this Act of which he is potentially a citizen, unless he then becomes or has previously become a citizen of any country mentioned in subsection (3) of section one of this Act, or has previously become a citizen of the United Kingdom and Colonies, a citizen of Eire or an alien." Paragraph 3 of the third schedule to the Act I should also read: "If while a male person remains a British subject without citizenship by virtue of section thirteen of this Act a child is born to him, the child shall, unless the child has previously become a citizen of the United Kingdom and Colonies, or of any country mentioned in subsection (3) of section one of this Act or of Eire, become a citizen of the United Kingdom and Colonies if and when the father becomes, or would but for his death have become, such a citizen; and a male person who becomes a citizen of the United Kingdom and Colonies by virtue of this paragraph shall be deemed for the purposes of the proviso to sub-section (1) of section five of this Act is to be a citizen thereof by descent only." In his judgment the learned judge said this of the point that I am now considering: "At the commencement of the Act, on 1 January 1949, there were many for whom citizenship was uncertain. Section 13(1) and (2) were enacted to cover the situation. By section 13(1) Azim Uddin was 'potentially a citizen of another country' ie Pakistan, by virtue of section 1(3). Accordingly, the status of the father on 1 January 1983" -- that must mean "1949" -- "was changed from a British citizen to potentially a citizen of Pakistan. He thus went into a vacuum status: that is a British citizen without citizenship, until he became a citizen of the United Kingdom and Colonies by registration under section 6(1) or a citizen of Pakistan. Section 13(1) permitted Azim Uddin to emerge from the vacuum status on becoming a citizen of the United Kingdom and Colonies, or a citizen of an independent Commonwealth state. Alternatively, under subsection (2) if Pakistan, of which the father was potentially a citizen, enacted a 'citizenship law' he did not thereby become a citizen; he became or remained a citizen of the United Kingdom and Colonies. Thus, if Azim Uddin can prove that the Pakistan Citizenship Act of 1951 was a 'citizenship law' and that he did not become a citizen by it, he became a citizen of the United Kingdom and Colonies. Section 32(8) of the British Nationality Act 1948 defines a 'citizenship law' as: 'an enactment of the legislature of that country declared by order of the Secretary of State . . . to be an enactment making provision for citizenship thereof; and a citizenship law shall be deemed . . . to have taken effect in a country on the date which the . . . government of that country declares . . .' An affidavit has been sworn by Nicholas Ashe, a solicitor of the Treasury Solicitors Department, who states that the Home Office confirm that no enactment of Pakistan law has been declared by order of the Secretary of State to be an enactment making provision for citizenship under section 32(8). It must follow, therefore, that if there has been no declaration, there is no citizenship law, and so at the date of the Pakistan Citizenship Act the father remained a British citizen without citizenship until he registered as a citizen of the United Kingdom and Colonies in 1959. I must now turn to the position of the applicant, when he was born in 1956, in Sylhet, in Pakistan. Section 4 of the Pakistan Citizenship Act provides: 'Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth'. By virtue of paragraph 3 of the third schedule he had previously, that is in 1956, become a citizen of Pakistan, and so when the father became a citizen of the United Kingdom and Colonies in 1959, Shafique was already a citizen of Pakistan under section 1(3). Thus, he did not become a citizen of the United Kingdom and Colonies when his father registered three years later." In my judgment, those words of the learned judge are both lucid in expression and right in law. The problem that Mr Slevin has faced in this context is the affidavit sworn by Nicholas Ashe, and try as best he could Mr Slevin was unable to overcome that hurdle. It follows that, in my judgment no one of the decisions under challenge in these proceedings was wrong in law or can in any way be faulted. Accordingly, I would dismiss this appeal.Judgment Two:
SIR ROGER ORMROD: I agree, and there is nothing I wish to add.Judgment Three:
NEILL LJ: I also agree.DISPOSITION:
Appeal dismissedSOLICITORS:
Hafiz & Co; Treasury SolicitorCopyright notice: Crown Copyright
