SSHD succeeds against BNO in Court of Appeal

The Secretary of State for the Home Department v Tariq [2021] EWCA Civ 378 (16 March 2021) 

In these proceedings the Court of Appeal held that Helen Mountfield QC, sitting as as a Deputy High Court Judge of the Administrative Court, erred in holding that Mr Tariq had met the requirement in section 4B(2)(c) of the British Nationality Act 1981, thereby entitling him to have British citizenship, because Mr Tariq renounced his Pakistani citizenship through inaction after the relevant day. Proceedings were connected to the SSHD’s decision to refuse Mr Tariq’s application for registration as a British citizen under section 4B of the 1981 Act. Mr Tariq was born in Khanewal, which is in Pakistan’s Punjab province, on 3 January 1989. His parents were Pakistani nationals at the time of his birth and his mother was born in Hong Kong, she was issued a British National (Overseas)(BNO) passport on 10 December 1996 and a further BNO passport on 21April 2008. She became a British citizen. On 9 March 1997, aged eight, Mr Tariq also acquired BNO status and was issued further BNO passports on 26 February 2003, aged 13, and 4 June 2007, aged 18. Mr Tariq was 32 at the time of these proceedings and had been lawfully resident in the UK since the age of 16. He also has a British wife and a British child. On 29 June 2010, aged 21, he applied to register as a British citizen for the first time. His application was refused on 1 September 2010. 

The basis of the refusal was that Mr Tariq held another nationality, i.e. a dual Pakistani-British nationality, which under the provisions of section 4B of the 1981 Act precluded him from acquiring British nationality. The refusal of 1 September 2010 was reconsidered and upheld on 24 September 2010. On 3 March 2014, an application was made to find that Mr Tariq was a “stateless” person. This application was refused on 4 March 2014. Then on 8 September 2016 Mr Tariq reapplied to register as a British citizen under section 4B of the 1981 Act. In support of his application, he produced a letter from the Pakistani Consulate in Birmingham dated the 29 June 2016 which stated that as his mother assumed BNO citizenship and by default her Pakistani citizenship was cancelled as per the Pakistani Citizenship Act 1951” and attached correspondence from the Pakistani Consulate in Hong Kong SAR dated 22 July 2011 to that effect. The letter of Birmingham Consulate said this about his status “please note that as a corollary his citizenship was also cancelled when he assumed BNO Passport. Therefore he is not entitled to possess a Pakistani travelling document.” On 21 May 2018, Mr Tariq’s second application for British naturalisation was refused on the basis that the requirements under section 4B of the 1981 Act were still not met. This led to judicial review proceedings in which Mr Tariq succeeded at first instance but which he lost in the Court of Appeal. 

Administrative Court

The two issues were (i) whether Mr Tariq was still a citizen of Pakistan and so precluded from claiming British nationality because of the terms of section 4B(2)(b) of the 1981 Act, and (ii) whether, even if he was no longer a citizen of Pakistan, this was because he had renounced, voluntarily relinquished or lost his Pakistani nationality through action or inaction on or before 19 March 2009 and so precluded from claiming British nationality because of the terms of section 4B(2)(c) of the 1981 Act. In relation to the first issue for determination, Helen Mountfield QC answered in the negative and found Mr Tariq was no longer a Pakistani national on the basis of expert evidence and the Pakistani Consulate’s letter. As to the second issue for determination, she rejected the SSHD’s proposition that Mr Tariq lost his Pakistan nationality because he failed to take relevant steps before his twenty first birthday on 3 January 2010 to preserve his Pakistani citizenship (although she acknowledged this was a correct reading of Pakistani law according to the expert). Helen Mountfield QC determined that the reason Mr Tariq was no longer a Pakistani citizen was because the Pakistani Government regarded him has having lost his Pakistani citizenship when he acquired a BNO passport and placed reliance upon the letter from the Pakistan Consulate dated 29 June 2016

The Court of Appeal

Coulson, Haddon-Cave and Edis LJJ first examined the relevant UK legalisation, section 4B of the 1981 Act entitles a person who has the “status” of a BNO to be registered as a British citizen on application under specified circumstances, and then set out the Pakistani legislation, i.e. section 14 (dual citizenship or nationality not permitted) and section 19 (cases of doubt as to citizenship) of the Pakistan Citizen Act 1951.

(i)  Arguments 

The SSHD made four submissions. First that it is well established that the question of a person’s nationality is to be determined by reference to the law of the state, on the expert evidence, not what agencies of the state say about that person’s nationality. Second, even assuming the issuing of a BNO passport meant that Mr Tariq fell within the ambit of section 14(1) of the 1951 Act, he nevertheless fell within the exception in section 14(1A) of the 1951 Act and would not have ceased to be a citizen of Pakistan until he turned 21 years old on 3 January 2010, as the expert concluded. Third, the judge erred in failing to follow the (unchallenged) expert evidence and in preferring the incorrect statement of the law in the Pakistani Consulate’s letter. Fourth, the judge should have held that Mr Tariq lost his Pakistani citizenship after the relevant date of 19March 2009 and the section 4B(2)(c) requirement had not been met.

In response, Mr Tariq submitted that the judge was entitled to find that the evidence met the requirements under section 4B(2)(c). First, there was evidence before the court that Mr Tariq was no longer a Pakistani citizen. That evidence took the form of the letter sent from the Pakistani Consulate dated 29 June 2016 which stated that Mr Tariq’s citizenship had also been cancelled when he assumed a BNO passport and thus he was not entitled to possess a Pakistani travel document. Second, this evidence was in line with the SSHD’s guidance on the type of evidence that should be provided in an application under section 4B of the 1981 Act. The said Guidance states that “documentary evidence that you have no other citizenship or nationality” can include “a letter from the country in which you were born saying whether you have ever held that country’s citizenship or nationality.” Third, the cases of Al- Jedda and Pham were distinguishable because they related to deportation for serious offences. The fact that the courts in those cases were prepared to find that a person is not “stateless” for the purposes of deportation for serious criminal offences does not mean the same approach should be taken when it comes to a person of good character.

(ii) Legislation

Section 4B(1) of the 1981 Act entitles four categories of person to apply to be registered as a British citizen, including under sub-section (d), persons with “……….. British National (Overseas)” status.

Section 4B(2) of the 1981 Act entitles a person to be registered as a British citizen if the SSHD is satisfied that he has not after “the relevant day”renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality”. Section 4B(3) provides that the “relevant day” in relation to persons applying by virtue of sub-section 4(B)(1)(d), i.e. those with BNO status, is 19 March 2009. Mr Tariq was not 21 until 3 January 2010, i.e. over nine months after the relevant day under section 4B of the 1981 Act, namely 19 March 2009.

As to the Pakistan Citizen Act 1951, Haddon-Cave LJ noted the following points. Section 14(1) of the 1951 Act contains a general prohibition against dual citizenship/nationality: a citizen of Pakistan who is a also a citizen or national of another country “shall, unless he makes a declaration … renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan. Section 14(3) grants an exception in relation to citizens of Pakistan who are also citizens of the United Kingdom and Colonies and other specified countries. Furthermore, section 14(1A) disapplies the prohibition in sub-section 14(1) in relation to “a person who has not attained the twenty-one years of his age” and it therefore provides protection to children under 21 against automatic cessation of Pakistani citizenship. It is also observable that similar protection is provided to children under 21 by section 14A in relation to “renunciation” of Pakistani citizenship.

(iii) Judgment 

Delivering the Court of Appeal’s unanimous judgment, Haddon-Cave LJ held that in his view, Helen Mountfield QC’s approach and findings – which preferred the Consulate’s letter in to the expert’s evidence – were flawed for two principal reasons. As he said: 

42. First, the Judge failed to have regard to the well-established principle that the question of a person’s nationality is a de jure matter, i.e. to be determined by reference to the actual law of the state on the basis of expert evidence, not what agencies of the state may assert about that person’s nationality (see Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62 and Pham v Secretary of State for the Home Department[2015] UKSC 19). 

44. Second, the Judge wrongly treated the Consulate letter as conclusive on the question, notwithstanding her acknowledgment that it was incorrect in law. The Judge appears to have been influenced by her own reading of section 19(2) of the 1951 Act: “36. … A straightforward reading of the text of section 19(2) of the Pakistan Citizenship Act 1951, read as if it were an English statute, would suggest that this letter was irrebuttable proof that the claimant’s Pakistani citizenship had ceased when the Pakistani government said it had ceased – i.e. on acquisition of a BNO passport in 1997.”

As to the first point, Haddon-Cave LJ observed that in Pham, the Vietnamese Government asserted that Mr Pham was not a citizen of Vietnam. However, the Supreme Court held by reference to the expert evidence, that under Vietnamese laws Mr Pham was a Vietnamese national. Haddon-Cave LJ held that the Supreme Court’s views at paragraph 92 of Pham were fully applicable and Mr Tariq did not seriously pursue any other point otherwise. As to the second point, the Court of Appeal said this:

45. Unfortunately, the Judge’s reading of section 19(2) was mistaken. She failed to have regard to the terms of sub-section 19(1) which governs section 19(2). Section 19(1) permits the Pakistan government to grant. a certificate certifying that a person is a citizen of Pakistan”. It does not permit the grant of a certificate (or letter) that a person is not a citizen of Pakistan. Section 19(2) provides that a certificate “shall be conclusive evidence of the fact recorded in it”. The certificate referred to in section 19(2) is clearly that permitted by section 19(1), namely a positive certificate certifying the fact that a person is a citizen of Pakistan. Section 19 does not permit the grant of a negative certificate (or letter) that a person is not a citizen of Pakistan, still less that the same shall be conclusive evidence of non-citizenship. This is clear from a straightforward reading of section 19. In stating the opposite (and, moreover, equating the Consulate letter with a formal certificate), the Judge misdirected herself. (It should be noted that section 16 of the 1951 Act provides that an order of the Federal Government is required to deprive a person of Pakistani citizenship.)

In the round, Helen Mountfield QC’s findings were expressly predicated on the letter of the Pakistani Consulate and she was wrong to give precedence to it. Both the Birmingham Pakistani Consulate letter of 2016 touching on Mr Tariq’s status and also the Hong Kong Pakistani Consulate letter of 2011 concerning his mother’s status post-dated Mr Tariq’s twenty first birthday when, according to the expert’s unchallenged evidence, section 14 of the 1951 Act put Mr Tariq to his election. 

There was no evidence that the Pakistani Government informed Mr Tariq at any earlier stage that it was treating him as having lost his Pakistani citizenship when he was a child, still less that the Pakistani Government could lawfully do that in the light of the protection in statues expressly afforded by section 14(1A) of the 1951 Act.

Comment

The Hong Kong (British Nationality) Order 1986, enabled by section 2 of the Hong Kong Act 1985, provided that persons who immediately before 1July 1997 were BOT citizens by virtue of having a connection with Hong Kong and but for that connection would not be BOT citizens, could register as BNO before 1 July 1997. 

Unlike BOT citizenship, BNO status did not bestow a right of abode in the UK. However, recently on 31 January 2021, the SSHD published guidance entitled Hong Kong British National (Overseas) Route which provides a route whereby those with BNO status may acquire entry clearance and leave to remain in the UK, and after five years continuous residence by this route, the right to apply for settlement and ILR.

Mr Tariq also argued that the appeal had become academic because of the SSHD’s recent announcement on the policy granting Hong Kong people with BNO status a route to ILR after residing in the UK for five years. The route-specific Immigration Rules are contained in Appendix Hong Kong British National (Overseas). These apply to all applications for entry clearance, permission to stay and settlement. The SSHD acknowledged that it will be possible for Mr Tariq to apply for leave to remain pursuant to the new policy. Such an application would be considered on its merits and these proceedings were not academic. 

The Court of Appeal said that the claim was far from academic and the dispute was live and the route to ILR and settlement in the UK for BNO holders was different from that envisaged by these proceedings whereby the court’s decision in his favour would have entitled Mr Tariq to British citizenship immediately. Alas, for Mr Tariq this was not to be despite the court’s observation that his counsel valiantly argued that Helen Mountfield QC’s findings were correct on the question of causation when she decided that Mr Tariq was not a Pakistani citizen when he applied for British citizenship. Mr Tariq had lost his Pakistani citizenship while he was still a minor, either by operation of Pakistani law or as a consequence of the Pakistani government’s incorrect, but conclusive, application of it. Needless to say, Coulson, Haddon-Cave and Edis LJJ were most unimpressed with that conclusion which flew in the face of the Supreme Court’s judgment in Pham (discussed here). 

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Citizenship and Nationality, Court of Appeal, Expert Evidence, Hong Kong, Immigration Rules, Judicial Review, Pakistan, Settlement, UKSC and tagged , , , . Bookmark the permalink.

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