High Court on British Citizenship and Fact Finding

R (Din) v Secretary of State for the Home Department [2018] EWHC 1046 (Admin) (04 May 2018)

These judicial review proceedings arose out of a trio of refusals – dated 14 July 2016, 16 December 2016 and 22 September 2017 – whereby the Home Office flatly declined to confirm the citizenship status of Yasmeen Din (“Din”) who claimed to have been born in Oxford on 26 June 1968. The question of fact for the court to determine was whether Din’s claim as to her birth was correct. The parties agreed that pursuant to section 3(8) of the Immigration Act 1971 the burden of proof rests on the claimant and that in light of Begum [2014] EWHC 2968 (Admin), see here, the standard of proof is the balance of probabilities. There was also agreement that if Din was born as claimed then she was a British citizen by operation of statute, namely 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 1971 Act. The Home Office did not resist Din’s reliance on latest available documentary evidence and likewise she did not resist the Home Office’s wish to cross-examine her and her step brother Mohammed Yusuf. This useful case was an unconventional judicial review of administrative decision-making, on a secondary and supervisory basis, and on the evidence which was before decision-maker. The court’s substitutionary function was not unfamiliar.

Applying White & Collins [1939] 2 KB 838, where the question was whether land was part of a park, Michael Fordham QC explained that it is possible for a court to answer for itself a question of fact on the evidence before it. In the context of Din’s case, following the approach of the Court of Appeal in Harrison [2003] EWCA Civ 432, the substitutionary review of the court is necessitated by article 6 of Schedule 1 to the Human Rights Act 1998. The court found the approach adopted by Keene LJ to be a good working illustration of judicial review’s ability to deliver – where necessary in the interests of justice – procedural adaptability and a contextually enhanced level of scrutiny. Din was born on 26 June 1968. Her sister Nuzma was born on 2 October 1969. Their parents Khair Din and Razia Begum got married in Sahiwal, Pakistan on 1 March 1967 and came to the UK on 25 June 1967 and lived in Oxford where their daughters were born. Din was born in Churchill Hospital and the “baby tag” stated her name as Yasmeen Din. Her birth certificate stated her name as Yasmeen, daughter of Khair Din. Khair Din’s previous marriage to Sherifaan Begum, which ended divorce recorded in February 1967, produced two sons Mohammed Yusuf and Mohammed Younus who came to the UK in August 1967.

Background

Razia Begum arrived in the UK in June 1967, apparently as Sherifaan Begum, but in November 1972 she returned to Pakistan with Din and Nuzma and they remained there. Earlier, when Din first arrived as a baby in the family home in Oxford in June 1968 her brother Mohammed Yusuf was a 12 year-old schoolboy and the family lived together in the same family home for more than four years until Din and her sister Nuzma departed for Pakistan along with Razia Begum (at which point Mohammed Yusuf was aged 17).

Back in Pakistan, Din commenced her studies the Government Women’s Primary/Middle School in Multan. School records showed her date of admission as 2 June 1979 and the English translation of the records stated her name as “Yasmin Sultana”, daughter of Khair Din. In Pakistan, Din’s name was spelt as both “Yasmeen” and “Yasmin”. Her stated date of birth was 4 January 1968. The court opined that it would be normal for a girl in Pakistan to commence her education at the age of 11 and to acquire an official identity card, which Din did in 1987, when she turned 18. From the year 2000, the National Database Registration Authority (NADRA) would register the official identity card as a computerised national identity card (CNIC) with a personal identification number.

NADRA issued her national identity card in November 2009. A Family Registration Certificate issued in November 2012 showed that she was issued with a CNIC number ending in 589-4 with a date of birth as 4 January 1968. Khair Din and Razia Begum were recorded as her parents. Property documents from the land register confirmed that her and her sister “Nazma Din” (or Nuzma) were their parents’ children. Din was issued a Pakistan passport in November 2013 with these details. Her stated date of birth was 4 January 1968 and her stated place of birth was Sahiwal. Din’s parents’ marriage produced three more daughters all of whom were born in Pakistan and NADRA recorded their names as Shahar Bano (1973), Shabnam Chaudhry (17 August 1977), Khalida Parveen (8 February 1979). All five of the sisters were recorded by NADRA as Khair Din and Razia Begum’s children.

Upon Khair Din’s death on 7 June 1986, his estate passed to all five daughters (Nuzma Din spelt “Nazma Bano”) and surviving son Mohammed Yusuf (spelt “Mohammad Yousaf”) whose brother Mohammed Younus had died by then. Efforts were made to bring the British born daughters to the UK but the British High Commission in Islamabad failed to interview them. Din’s British birth certificate was amended in October 1982 to record “Sherifana” as having been her mother. Din married Mumtaz Ahmed in Pakistan on 8 March 1991. Using the name Yasmeen Sultana, she successfully applied for entry clearance which was granted on 14 January 2014 and utilised it to travel to the UK and entered on 6 February 2014 using her Pakistani passport.

The Administrative Court

In relation to Din’s position after 1979, the court held that she is the person who (i) was the new pupil whose 1979 school records described her as Yasmeen Sultana, (ii) was later issued with the 589-4 CNIC number, (iii) married Mumtaz Ahmed on 8 March 1991, (iv) was issued with the Pakistan passport on 21 November 2013, (v) was issued with the UK entry clearance on 14 January 2014, (vi) used that passport and entry clearance to travel to the UK, (vii) is described in the NADRA Family Registration Certificate, and (vii) is described in the Land Register document. The court found the evidence to be clear, consistent and materially complete on these points and their continuity. The Home Office did not challenge these findings and indeed relied on them.

At the heart of Din’s case was the factual point that the person born in Oxford on 26 June 1968 (Yasmeen Din) and the person supposedly born in Sahiwal on 4 January 1968 (Yasmeen Sultana) are one and the same person. The Home Office rejected that Din was able to establish that she was born in Oxford as claimed and made the counterpoint that Din was born in Sahiwal on 4 January 1968 and was in fact Yasmeen Sultana and subsequent Pakistani documents conclusively proved this point.

The court had the benefit of observing Din’s oral evidence – albeit in Urdu through an interpreter – under cross-examination. She accepted that her documents contained certain mistakes and replied “no answer” to numerous questions and refused to publicly discuss her personal affairs and marital life. A core theme in cross-examination was the contention that Din was in fact Yasmeen Sultana born on 4 January 1968 in Sahiwal and not Yasmeen Din born in Oxford on 26 June 1968 because otherwise she would have lied to the Pakistani authorities to obtain her Pakistani passport. Other discrepancies were picked out between Din’s witness statement and historic correspondence.

The Home Office alleged that Din had not discharged the burden of proof and it dwelled on the discrepancies in the recorded dates of birth. It was argued that the real Yasmeen Din would easily overcome the overall inconsistencies in the case. Aspersions were cast on the DNA evidence in the case. Even so, Michael Fordham QC held that:

20. I find as a fact that the claimant is, as she claims, the Yasmeen Din recorded as born in Oxford on 26 June 1968. I reach that conclusion on all the evidence in the case.

Six reasons were particularly compelling. First of all, Yasmeen Sultana’s official records in Pakistan – on which the Home Office relied as to particulars of name, date of birth and place of birth – from which the NADRA family certificate was derived left no doubt that Yasmeen Sultana was the product of Khair Din and Razia Begum’s marriage. Mr Fordham judged that:

21. … These are not “self-serving” documents for the claimant, in that they are unhelpful to her so far as date and place of birth are concerned. I find as a fact, based on what I consider to be an overwhelming and unrebutted inference, that the original official Pakistan records, on which the computerised NADRA records are based, recorded Yasmeen Sultana’s father as Khair Din and her mother as Razia Begum. No document gives or suggests any other father, or mother, for Yasmeen Sultana.

Proceeding from that point, secondly the court made the observation that no dispute arose about Razia Begum being present in Oxford in 1968 and giving birth to Yasmeen Din in Oxford on 26 June 1968. This consensus precluded the possibility of Razia Begum of having given birth to a different daughter (a different Yasmeen) in Pakistan, less than six months earlier. Mr Fordham therefore held:

22. … If Yasmeen Sultana is the daughter of Razia Begum then she cannot have been born on 4 January 1968. If Yasmeen Sultana is the daughter of Razia Begum and born in 1968 she must have been born in the UK.

The court was sensitive to cultural aspects of the situation and so thirdly it found nothing strange about Din’s name at age 11 upon return to Pakistan from the UK to be recorded as “Sultana” which of course served as an honorific title. The absence of errors in her sister Nuzma’s records did not undermine the validity of that analysis. In fact, “Din” was not a name by which all the daughters were known in school. The court accepted the brother Mohammed Yusuf’s evidence that the girl born in Oxford had been in Pakistan for six and a half years by June 1979 and that their father was not an educated and literate man with the consequence that an allowance was appropriate when considering dates and places of birth registered in Multan in 1979.

Not everything in the Pakistani records was correct. Indeed, locating the inaccuracy in the Pakistani records was the key question. Querying the exact parentage of Yasmeen Sultana and asking the further question whether she was born to Razia Begum and Khair Din, but on a different date, and in a different place, Mr Fordham proceeded to hold that:

23. … I find nothing inherently implausible, in the context and circumstances, about the incorrectness being in the recording of when and where Yasmeen had been born eleven years earlier. What I find much less plausible is that Yasmeen’s parents, still alive, were incorrectly recorded in and after 1979.

Fourthly, the mis-description of the Oxford born Yasmeen as the Yasmeen Sultana born in Sahiwal interlocked with a numerous evidential features, of which the officially recorded parenthood reflected just one aspect. The name Yasmeen itself was another feature. There was little possibility that the same father could have had two daughters called Yasmeen in the same year. It made most sense that there was just one Yasmeen. Equally, if there were two of them, then there was no reference to the Yasmeen born in Oxford after she returned to Pakistan with her sister Nuzma Din and mother Razia Begum. Unless she was Yasmeen Sultana no documentary evidence referred to her. This brought the court to its next observation and Mr Fordham said:

25. Fifthly, I am quite satisfied that both the claimant and Mohammed Yusuf know very well what the truth is, and told me the truth. They know very well whether the claimant is the Yasmeen born in Oxford on 26 June 1968, who lived with the two step-brothers in the family home from June 1968 and with her younger sister from October 1969, until the girls and their mother left for Pakistan at the end of 1972.

Mohammed Yusuf was a successful businessman. He was a magistrate. He gave a statutory declaration to facilitate his half-sisters’ entry clearance applications. Notably, there was photographic evidence showing Din, her sister and her parents together in Oxford and the court was satisfied that it was told the truth on this point.

Sixthly, DNA evidence from the testing company Cellmark, which remained unchallenged by the Home Office, helped steer Din’s case to victory. As one would expect the Home Office sneakily argued that evidence is consistent with Din being the daughter of Khair Din and a third wife, or being a cousin of Nuzma Din and Mohammed Yusuf with no common parentage. However, Mr Fordham was unimpressed with such tactics and instead held:

26. … In my judgment, the DNA evidence – especially the assessment that the claimant is 97 times more likely to be Nuzma Din’s full sibling than her half sibling (recalling that a cousin can sometimes be detected as a half sibling) – is a significant objective indicator in the claimant’s favour.

None of the topics of cross-examination devised by Home Office were able to dent Din’s case or case material doubt on her claim. Nothing changed because of any discrepancies in her narrative about the number of visits to the British High Commission made by her and her sister three decades ago. Official marriage documents showed her age as 20 rather than 22 at marriage but that did not matter because her male family members recorded this figure as an estimate in her Nikahnama (marriage agreement). The court also found nothing strange about the fact that her Nikahnama recorded her as once additionally married in the past but “not sent” off as a bride (known regionally as rukhsati). The court found that the details recorded in the marriage certificate documents were of no direct relevance to the central issue in Din’s case.

Finally, the Home Office tried to discredit Din’s claim because of the process used by her to obtain her Pakistani passport in 2013. It was said that she must have been untruthful to the authorities because she pretended that she was born in Sahiwal on 4 January 1968 as recorded in the identity card used to acquire the Pakistan passport. Contradictions in her witness statement (that she sought to enter the UK and apply for a UK passport) in contrast to her entry clearance application (which recorded that she wished to visit the UK for six weeks to meet a nephew and niece) were neither here nor there. It mattered not that in her oral evidence she said that she came to comfort her sister Khalida Parveen at the time of her sister’s difficult pregnancy. It was clear to Mr Fordham that:

30. … The claimant gave what I was satisfied was a clear and consistent answer to questions about the description to the authorities of her identity.

Din had always relied on a man to help with her applications for a Pakistani passport and entry clearance. It was clearly the case that she was never “directly interviewed by the authorities and she told no lies to them.” The court did not hesitate in accepting her evidence. There were no fabrications in her entry clearance application. Inconsistencies in the case arose simply because of “an over-reliance on others in preparing documents” which could not be counted as a deliberate scheme or intention to deceive the British authorities and the court was unconvinced that her “general truthfulness or credibility” were questionable or dubious. None of the cross-examination themes undermined the court’s “confidence as to where the truth lies on the central issue in the case.”

The court found Mohammed Yusuf to be an impressive witness. He said that he and Din lived together in Oxford when he was a teenager. The court considered this to be “reliable, clear and compelling” oral evidence. There was neither any conspiracy by the family nor any reason to suspect that Mohammed Yusuf was unable to correctly identify Din because of the fact that he had lost touch with her over the decades. He said that Din had “hidden nothing” and he would personally gain nothing at the age of 62 by attending court to give false evidence and engage in perjury. The court accepted his account that Din and him were among the people in the picture taken in the Oxford studio. The court acknowledged that Mohammed Yusuf was able to fill in the gaps on context, culture and history by providing illuminating insight from his own knowledge and experience.

Comment

This is a smart decision and among other things the Home Office seems to have shot itself in the foot by unreasonably insisting that the same parents could have had two daughters named Yasmeen in the same year. It is indeed difficult to believe that this fluffy contention formed the backbone of the government’s case at its height.

The court must be applauded for its openness to cultural relativism and sensitivity in deciding this case. Mr Fordham’s knowledge of Pakistan and NADRA is exemplary of course. Since all things Pakistani are automatically considered to be bad in the West, it is also comforting to learn that unlike the Federal Investigation Agency no corruption was attributed to NADRA in these proceedings. The doubling of NADRA fees for identification documents in Pakistan is proving deeply unpopular and the courts are demanding answers from the federal government in that regard.

Interestingly, India’s AADHAAR system – equivalent of Pakistan’s NADRA system – is alleged to facilitate profiling of citizens and the Supreme Court of India has held that AADHAAR cannot be imposed as a requirement for accessing services and grants of passports. Aggrieved persons complain that overall the system suffers from the vice of unconstitutionality because of violating the right to privacy. A constitutional bench of the Supreme Court of India is currently considering claims challenging the imposition of AADHAAR.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 6, Cases, Citizenship and Nationality, Court of Appeal, ECHR, Entry Clearance, False Statements and Misrepresentations, High Court, Human Rights Act, India, Judicial Review, Nationality, Pakistan, Visitors, Women and tagged , , , , , . Bookmark the permalink.

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