Secretary of State for the Home Department v. Antoniades

SECRETARY OF STATE FOR THE HOME DEPARTMENT v ANTONIADES

Immigration Appeal Tribunal

[1993] Imm AR 57

Hearing Date: 16 September 1992

16 September 1992

Index Terms:

Right of abode -- citizen of the United Kingdom and Colonies before 1 January 1973 -- born in Egypt -- father born in Cyprus -- father and respondent became citizens of the United Kingdom and Colonies under British Nationality Act 1948 -- respondent retained that status on independence of Cyprus, 1960 -- whether he secured a right of abode under the 1971 Act. Cyprus (Annexation) Order 1914/1929: Cyprus (Annexation) Amendment Order 1917/1374: British Nationality and Status of Aliens Act 1914 s 1(i)(b): British Nationality Act 1948 ss 12(1), 12(2): Immigration Act 1971 ss 2(1), 2(3), 2(4): British Nationality Act 1981 s 11(1): HC 251 para 9.

Held:

The respondent who was born in Khartoum and whose father had been born in Cyprus, appealed to an adjudicator against the decision of the Secretary of State that he had, following the coming into force of the Immigration Act 1971, no right of abode in the United Kingdom. It was common ground that both the respondent and his father had become citizens of the United Kingdom and Colonies under the British Nationality Act 1948. The adjudicator had allowed the appeal on the basis that the appellant before him had brought himself within the provisions of section 2(1)(b) of the 1971 Act. The Secretary of State appealed to the Tribunal. Held 1. It had to be accepted that a series of Acts since 1948 had altered the rights of various categories of British subjects. A status enjoyed before the coming into force of the 1971 Act was not necessarily preserved thereafter. 2. It followed that no statement in a passport issued before 1973 necessarily established the subsequent status of its holder. 3. To succeed in his claim the respondent had to show under section 2(1)(b) of the 1971 Act, that his father or mother had secured citizenship of the United Kingdom and Colonies in one of the ways and at a time laid down in that subsection. 4. The evidence before the adjudicator and before the Tribunal did not show that that had been the case. 5. The Secretary of State's appeal would accordingly be allowed.

Cases referred to in the Judgment:

Reshamwala (unreported) (5838).

Counsel:

D Wilinott for the appellant; TE Gooneratne for the respondent PANEL: Professor DC Jackson (Vice-President) AG Jeevanjee Esq, P Rogers Esq JP

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (Mr JG Storry) allowing an appeal by Dr Antoniades against the refusal of a certificate of entitlement to the right of abode. The issue before us arose when, in 1980, Dr Antoniades applied for a United Kingdom passport to replace one issued to him in 1970 which by then had expired. When the passport was issued, the phrase printed on page five -- "Holder has the right of abode in the United Kingdom" -- had been deleted and the phrase "Holder is entitled to readmission to the United Kingdom" substituted for it. Dr Antoniades took the view that this deletion was not in accordance with the law, given the fact that his previous passport showed him to be "British Subject: Citizen of the United Kingdom and Colonies". The alteration and its importance to Dr Antoniades came to the fore when he endeavoured to seek full registration of the General Medical Council, when he was asked to produce evidence that he had acquired the status of British citizen. The matter was then raised with the Immigration Department who asked for evidence of ordinary residence for a continuous period of five years prior to 1 January 1983. On 7 August 1989 Mr Gooneratne wrote to the Home Office on behalf of the respondent, stating that he could not produce evidence of such residence but asking for the grant of a certificate of nationality. The various enquiries by or on behalf of Dr Antoniades were treated by the Home Office as an application for a certificate of entitlement to the right of abode, and that application refused on 24 November 1989. An appeal was brought against that refusal, the adjudicator promulgating his determination in favour of the respondent on 11 April 1991. The adjudicator thought the notice of refusal was based on an incorrect premise, in that it assumed that the basis of the application was a period of five years' residence. In truth, thought the adjudicator, the application was simply to clarify the citizenship status and, in the adjudicator's view, the respondent was a British citizen by descent. The applicable law Dr Antoniades, in substance, seeks a declaration that he is a British citizen, for he seeks to have the right of abode. The notice of refusal is therefore correct in focusing on the need for the respondent to establish the right of abode, although it may be too narrowly phrased because of the Secretary of State's belief that the only ground on which Dr Antoniades could establish that was a five year period of residence. Entitlement to the right of abode is governed by section 2(1) of the Immigration Act 1971 as amended by the British Nationality Act 1981. So far as it is relevant to the respondent in this case, he has to show that he is a "British citizen". That status is claimed by virtue of events which occurred prior to 1 January 1983 and indeed, Dr Antoniades claims that in 1980 he had the right of abode. In these circumstances, the respondent must satisfy section 11(1) of the British Nationality Act 1981. This reads: "11(1) Subject to subsection (2), a person who immediately before commencement -- (a) was a citizen of the United Kingdom and Colonies; and (b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen". It is common ground that Dr Antoniades was in 1970, in 1980 and immediately before the commencement of the British Nationality Act 1981 a citizen of the United Kingdom and Colonies. The question, therefore, is whether on 31 December 1982 or (as is claimed) by the issue of the second passport in 1980 Dr Antoniades had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force. So far as they are possibly relevant to this case, the provisions of the Act of 1971 prior to amendment dealing with the right of abode are those set out in section 2(1) and (4). These read: "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 time of 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".

. . .

"(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". It is therefore necessary for Dr Antoniades, being a citizen of the United Kingdom and Colonies, to establish that he has one of the links with the United Kingdom specified in section 2(1) or, if he claims through registration, he falls within section 2(4). Before turning to the facts and the application of the law to those facts, we should say thaL it seems to us that part of the problem in this case has been a failure to understand that successive pieces of legislation have affected the rights of individuals to enter the United Kingdom without being subject to immigration control. As we were reminded by Mr Wilmott, the Tribunal set out the development of immigration control in respect of citizens of the United Kingdom and Colonies in its determination in Reshamwala (5838). In that determination the Tribunal summarised the imposition and development of immigration control in respect of citizens of the United Kingdom and Colonies. The control was instituted through the Commonwealth Immigrants Acts 1962 and 1968, and developed through the concept of the right of abode by the Immigration Act 1971. The different statutes brought different categories of persons within immigration control and, as a consequence, a citizen of the United Kingdom and Colonies could well fall outside immigration control prior to 1973 when the Immigration Act 1971 came into force, but fall within control by virtue of that Act. It follows that, as Mr Wilmott again said, the question of the immigration status of a citizen of the United Kingdom and Colonies after 1973 is not necessarily, or by implication, answered by the status held prior to 1 January 1973 and reflected in a passport issued before that date. The immigration status of Dr Antoniades after 1 January 1973 depends upon the application of the provisions of the 1971 Act that we have set out. It is highly unlikely that any representation in a passport after 1973 would, of itself, amount to the creation of the right to abode, but it is certain that any statement in a passport prior to that date cannot be relied on as establishing a status which did not then exist. The statement in the passport issued in 1970 was a statement of the status which Dr Antoniades then held. The issue in this case, however, is the status held under the Immigration Act 1971. The factual background This is helpfully set out in a supplementary statement, and no evidence has been produced contrary to the factual statements on which the explanatory statement is based. Dr Antoniades' father, Chialombos, was born in Cyprus on 1 January 1902. On 3 May 1920 he was issued with a certificate of British nationality under the Cyprus (Annexation) Orders in Council 1914 and 1917 (For the effect of the 1914 Order, and generally, see L Fransman British nationality law (London 1989) p 375 et seq: for the 1915 Proclamation and the 1917 Order, see JM Jones British nationality law and practice (Oxford, 1942) p 49). On 1 January 1949 he became a British subject, citizen of the United Kingdom and Colonies, by virtue of the provisions of section 12(1) of the British Nationality Act 1948. The respondent in this case, George Antoniades, was born in Khartoum on 13 March 1931 and was at birth a British subject under section 1(1)(b) of the British Nationality and Status of Aliens Act 1914. On 1 January 1949 he became a British subject, citizen of the United Kingdom and Colonies, consequent on his father achieving such a status (see British Nationality Act 1948 section 12(2)). It is accepted that on the independence of Cyprus in 1960 Dr Antoniades retained his status as a British subject, citizen of the United Kingdom and Colonies. Application of the law to the facts Mr Gooneratne told us that he did not seek to make any case based on section 2(1)(c) of the Immigration Act 1971 as set out above ie a period of five years ordinary residence prior to 1 January 1983. On the facts Dr Antoniades has clearly no claim under section 2(1)(a) of the Act, requiring, as it does, an acquisition of citizenship by him by an act in this country. No case has been made based on section 2(1)(d) requiring the birth of the parent in the United Kingdom. The adjudicator found that the respondent succeeded under section 2(1)(b) ie through a parent or grandparent who was a citizen of the United Kingdom and Colonies. The only evidence as to any parent or grandparent that we have before us goes to the respondent's father who, indeed, was a citizen of the United Kingdom and Colonies. However, to succeed under section 2(1)(b) the respondent's father would have to have acquired his citizenship either -- (i) by birth, adoption, naturalisation in the United Kingdom or registration in a Commonwealth country; or (ii) through a parent of his acquiring prior to the respondent's birth citizenship in one of the methods set out in (i). As we say, we have no evidence as to the citizenship status of the parents of the respondent's father. The only evidence as to the respondent's mother is from a copy of part of a passport issued to her on 5 September 1990, showing that she was born in Cairo on 7 July 1916 and that she has the right of abode in the United Kingdom. Assuming that the statement in the passport reflects the citizenship status of the respondent's mother, it is possible that if she attained that status prior to the respondent's birth, that being a citizen of the United Kingdom and Colonies, he could claim the right of abode through his mother. However, we have no evidence on this point. The respondent's father obtained his British nationality through a certificate issued by virtue of his entitlement to that nationality under the Cyprus (Annexation) Orders. This nationality is to be equated with the citizenship of the United Kingdom and Colonies for the purpose of assessing whether a person has the right of abode (Immigration Act 1971 section 2(3)), and it is clear that it is not a method of acquisition which comes within section 2(1)(b) or 2(4) of the 1971 Act. It therefore follows that Dr Antoniades has no claim to the right of abode, and it further follows that the passport as issued to him was not inaccurate in deleting the statement that he had such a right. The right to readmission as reflected in the passport is not before us, but, as Mr Wilmott said, it may well be that that right has its origin in a status of citizenship under the British Nationality Act 1981 other than British citizenship. There is a specific provision for the right of readmission in relation to such citizens in the immigration rules (see HC 251 paragraph 9). The appeal of the Secretary of State is allowed, and the refusal of the certificate of entitlement to the right of abode reinstated.

DISPOSITION:

Appeal allowed