Nilaben Hargovinbhai Patel, Gooriben Hargovinbhai Patel v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1988] Imm AR 521

Hearing Date: 25 May 1988

25 May 1988

Index Terms:

British citizenship -- whether appellants had right of abode on 31 December 1982 -- effect of Zambia Independence Act 1964. British Nationality Act 1948 ss 5(1), 6(2): Zambia Independence Act 1964 ss 3(3), 4: Immigration Act 1971 ss 2(1), 2(1)(b), 2(4): British Nationality Act 1981 ss 11, 14(1), 39.

Held:

The appellants were citizens of Zambia who were refused indefinite leave to remain in the United Kingdom. Before the adjudicator the case had been argued on two different bases: that the appellants were British citizens and thus were not subject to immigration control: in the alternative they qualified for settlement as dependent relatives. Their appeals were dismissed. Before the Tribunal only the issue of nationality was argued. The Tribunal considered the effect of the Zambia Independence Act 1964 on the relevant provisions of the 1971 Act and the British Nationality Act 1981. Held: 1. To claim a right of abode, in the events which had happened, the appellants had to show that they were citizens of the United Kingdom and Colonies and that one of their parents was likewise, within the relevant limited statutory definition. 2. The parents of th appellants had been citizens of the United Kingdom and Colonies by registration. 3. The appellants had been citizens of the United Kingdom and Colonies by descent, born in Northern Rhodesia. 4. However, albeit their parents' status was not then affected, the appellants lost that citizenship by operation of the Zambia Independence Act 1964. 5. Thus the appellants had no claim to a right of abode nor, following the British Nationality Act 1981, did they become British citizens.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

J Dhruv for the appellants; A Beasley and D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President), Mrs A Weitzman JP, RE Hunte Esq JP

Judgment One:

THE TRIBUNAL: The appellants, who are citizens of Zambia, appeal against the decision of an adjudicator (Sir John Pestell KCVO) dismissing their appeal against the refusal to vary their leave to remain in the United Kingdom by granting them indefinite leave. The hearing took place before us on two occasions. The applications by the appellants were made on 2 August 1985 and were refused on 6 November 1986. The refusal of the application by Nilaben Patel was in the following terms: "Mr Hargovindbhai Mangalbhai Patel has applied on your behalf for indefinite leave to remain in the United Kingdom as his dependant, but being aged 23 you are ineligible for consideration as a dependant of your parents and the Secretary of State is not satisfied that there are the most exceptional compassionate circumstances in your case". The refusal in regard to Gooriben Patel was in identical terms save that her age is given as twenty-two. On the appellants' appeal, Mr Dhruv who also appeared for them before the adjudicator raised the question of nationality. He based his case, therfore, first on the claim that the appellants did not require leave to remain being British citizens and secondly and in the alternative, if they did require leave to remain they satisfied the requirements of the immigration rule applicable to them ie HC 169 paragraph 52. The adjudicator concluded that the appellants were not British citizens and therefore subject to immigration control. On the issue of paragraph 52, the adjudicator concluded that they did not satisfy the requirements of paragraph 52 and in particular, that there were not the most exceptional compassionate circumstances existing if the appellants were to return to Zambia. Before us Mr Dhruv relied almost entirely on his contention that the appellants were British citizens. He did not seek to rely on paragraph 52 although he asked, if we were against him on the nationality point, to consider making a recommendation. We consider first, whether the appellants require leave to remain. Do the appellants require leave to remain in this country? In order to establish the right to be in this country, the appellants must establish that they have a right of abode. To do this, they must establish that they had that right on 31 December 1982 by virtue of section 2 of the Immigration Act 1971 as it was then in force. (See British Nationality Act 1981 sections 11 and 39). Section 2(1) of the Immigration Act 1971 reads: "2(1) 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; or (b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent 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; or (c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more; or (d) he is a Commonwealth citizen born to or legally adopted by a parent who at the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands". It is common ground that the appellants cannot satisfy paragraphs (a), (c) or (d). As to (a), if the appellants are citizens of the United Kingdom and Colonies they did not attain that status by birth, adoption, naturalisation or registration in the United Kingdom. As to (c), the appellants have not been resident in the United Kingdom for the required period and as to (d), neither of the appellants' parents was born in the United Kingdom. The case therefore turns on section 2(1)(b). Relevant to any claim under section 2(1)(b) is section 2(4) which reads: "2(4) In subsection (1) above, any reference to registration in the United Kingdom shall extend also to registration under arrangements made by virtue of section 8(2) of the British Nationality Act 1948 (registration in independent Commonwealth country by United Kingdom High Commissioner), but, in the case of a registration by virtue of section 7 (children) of that Act, only if the registration was effected before the passing of this Act". The facts relevant to the claim to right of abode These facts are not in dispute and in appreciating both the facts and the law, we were greatly assisted by a statement from the Nationality Division of the Home Office. We did not understand Mr Dhruv to contest the facts as set out in that statement, although understandably he argued against the legal conclusions drawn in it. In order to qualify, the appellants must show that they are citizens of the United Kingdom and Colonies (CUKCs) and that either of their parents was a CUKC by birth, adoption, naturalisation or registration within the meaning of the statutory provision. The citizenship status of the appellants and their parents is complicated by the advent of Zambia Independence on 24 October 1964. Prior to Zambia Independence, it is common ground that Mr and Mrs Patel and the two appellants were citizens of the United Kingdom and Colonies. Mr Patel was registered as such on 28 March 1953 in the then Protectorate of Northern Rhodesia. Mrs Patel was registered as such on 20 August 1957 in India and obtained that registration by virtue of being a woman married to a citizen of the United Kingdom and Colonies (British Nationality Act 1948 section 6(2)). The two appellants were citizens of the United Kingdom and Colonies by descent (British Nationality Act 1948 section 5(1)). They were also by virtue of being born in Northern Rhodesia, British protected persons. Zambia became independent on 23 October 1964. The Constitution provides: "3(1) Every person who, having been born in the former Protectorate of Northern Rhodesia, is on 23rd October 1964, a British protected person shall become a citizen of Zambia on 24th October 1964". The Zambian Independence Act 1964 provides )so (ar as is relevant): "3(3) Except as provided by section 4 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 Zambia". 4(1) Subject to subsection (5) of this section, a person shall not cease to be a citizen of the United Kingdom and Colonies under section 3(3) of this Act if he, his father or his father's father -- (a) was born in the United Kingdom or in a colony; or (b) is or was a person naturalised in the United Kingdom and Colonies; or (c) was registered as a citizen of the United Kingdom and Colonies; or (d) became a British subject by reason of the annexation of any territory included in a colony. (2) A person shall not cease to be a citizen of the United Kingdom and Colonies under the said section 3(3) if either -- (a) he was born in a protectorate or protected state, or (b) his father or his father's father was so born and is or at any time was a British subject. (5) Any reference in this section to a colony, a protectorate or a protected state is a reference to a territory which is a colony, a protectorate or a protected state, as the case may be, within the meaning of the British Nationality Act, 1948, on the appointed day, and accordingly does not include a reference to Zambia; and subsection (1) of this section shall not apply to a person by virtue of any certificate of naturalisation granted or registration effected by the governor or government of a territory outside the United Kingdom which is not such a colony, protectorate or protected state on the appointed day". The legislative provisions relating to Zambia Independence did not affect the citizenship of the United Kingdom and Colonies of Mr or Mrs Patel. They were not born in Northern Rhodesia. However, it seems clear to us, as the Home Office argued, that the provisions by operation of law removed the citizenshp of the United Kingdom and Colonies from the appellants. They were born in Northern Rhodesia and therefore, being British protected persons, became citizens of Zambia on 23 October 1964. It follows that by virtue of section 3(3) of the Zambia Independence Act, they ceased to be citizens of the United Kingdom and Colonies unless they fell within the provisions of section 4 of that Act. The citizenship of the appellants is not saved by section 4. It is to be noted that the saving provisions are based on a citizenship connection between the person "his father or his father's father" and the United Kingdom, a colony, a protectorate or a protected state. However, by virtue of section 4(5), Zambia is excluded from the scope of section 4(1). The appellants' father was registered as a citizen of the United Kingdom and Colonies in Zambia and the registration of the appellants' mother is not relevant to section 4. As a consequence, the appellants cannot qualify for the right of abode by virtue of section 2(1)(b) of the Immigration Act 1971 as set out above. Having lost the citizenship, no event has occurred which would resurrect it. Mr Dhruv argued strongly first, that the British Nationality Act 1948 provides for the loss of citizenship only through renunciation or deprivation. However, it seems to us unarguable that the specific provision of the Zambia Independence Act 1964 section 3(3) means what it says and accomplishes what it sets out to do. Alternatively, Mr Dhruv relied on section 14(1) of the British Nationality Act 1981 which defines British citizen "by descent". However, this provision simply defines a British citizen according to necessary qualifications. So far as is relevant to this case, these qualifications include becoming a British citizen at commencement and immediately before commencement, being a citizen of the United Kingdom and Colonies. For the reasons we have set out above, the appellants were not on 31 December 1982 citizens of the United Kingdom and Colonies and therefore were not by virtue of section 11(1) of the British Nationality Act 1981, British citizens on 31 December 1982. We should mention two other factors to complete the picture. It is agreed that Mrs Patel has the right of abode under section 2(1)(a) of the Immigration Act 1971 as in force on 31 December 1982 when this provision is combined with section 2(4). That being so, had the appellants remained citizens of the United Kingdom and Colonies they would have qualified for the right of abode through their mother by virtue of section 2(1)(b) as set out above. However, they are prevented from so qualifying because of the cessation of their citizenshp of the United Kingdom and Colonies when Zambia became independent. Finally, Mr and Mrs Patel also have a son, Bhinesh Kumar, who was born in Zambia on 15 March 1966. He therefore became a citizen of the United Kingdom and Colonies by descent (through his father) and as section 3(3) of the Zambia Independence Act did not affect him, he did not lose that citizenship. He, therefore, has the right of abode by virtue of section 2(1)(b) (through his mother). It follows that, in our view, the Home Office is right in asserting that neither appellant is a British citizen and neither appellant has a right of abode in this country. They therefore require leave to enter or remain. As we have said, Mr Dhruv did not seek to argue the appellants' case on the basis of the granting of leave, the applicable immigration rule being that set out in paragraph 52 of HC 169. That being so and having regard to the evidence given before the adjudicator, we are unable to say that the stringent requirements of paragraph 52 are satisfied. It is not established that the appellants would be living alone in the most exceptional compassionate circumstances were they to have been in Zambia at the date of decision. The appeals are dismissed. Mr Dhruv asked us to consider making a recommendation. There cannot but be some sympathy for a family which finds itself with different rights of entry into this country partly, at least, through the timing and place of birth of the children. The centre of the family is now apparently firmly in this country and we woud draw the Secretary of State's attention to this fact and to the fact that the difference in entry rights may at least in part be due to events which were entirely beyond the control or comprehension of the appellants.

DISPOSITION:

Appeals dismissed

SOLICITORS:

Lipman Bose & Co, London.

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.