Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14603/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 10 April 2017

Before

THE HONOURABLE MR JUSTICE MITTING
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MICHAEL KIBET CHETTLE
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr R Khubber, Counsel instructed by Turpin & Miller Solicitors

DECISION AND REASONS
1. Michael Kibet Chettle is a 32 year old citizen of Kenya. He may also be a British citizen, which is a question we will address later. On 21 July 2001 he arrived in the United Kingdom on a visitor’s visa valid to 11 December 2001. His mother lived in the United Kingdom and may have been a British citizen. On 26 November 2001 he applied for registration as a British citizen. It was refused as he had not met the two years’ residence requirement. On 6 August 2003 he was granted indefinite leave to remain as the child of a settled parent, his mother. Between 2005 and 2011 he accumulated a number of convictions mainly for petty offending. On 17 April 2015 he was convicted of an attempt to possess with intent to supply 65 grams of class A drugs. It was charged as an attempt because the importation in which he had participated had been frustrated by the authorities who substituted SmartWater for the drugs. He pleaded guilty at a late stage. He was sentenced to three years’ imprisonment on 4 December 2015. He was described by the sentencing judge as “well versed in the world of drug dealing”. If not a British citizen he was liable to automatic deportation under Section 32C of the UK Borders Act 2007.
2. On 22 January 2016 a decision to make a deportation order was made. The appellant made representations against it. On 7 June 2016 the Secretary of State maintained her decision to deport but with a right of appeal in-country. The appellant exercised that right. By a decision and reasons promulgated on 6 February 2017 First-tier Tribunal Judge Astle upheld his appeal on two grounds:
(1) He had a claim to be registered as a British citizen which, if made, would probably succeed.
(2) In any event, applying the exception to 117 Nationality, Immigration and Asylum Act 2002 in Section 117C it would be unduly harsh for the appellant’s daughter Jailah Chettle, born on 11 September 2009, to remain in the United Kingdom without him.
3. The Secretary of State has appealed against that decision. Even though the appellant to the First-tier Tribunal is the respondent to this appeal we will continue to refer to him as the appellant and to the Secretary of State as the Secretary of State. She appeals on two grounds:
(1) The judge should not have found that the Secretary of State would probably acknowledge that the appellant was entitled to be registered as a British citizen.
(2) She erred in law in concluding that it would be unduly harsh for the appellant’s daughter to remain in the United Kingdom without him.
4. We intend to adopt a somewhat different approach to the issues from those adopted by the judge, for reasons which we will explain, to which we believe the law drives us. A question arose as to whether or not the appellant was a British citizen and so capable of being lawfully deported. It was a question which arose under the Immigration Act 1971. Section 3(8) of that Act therefore applied. “When any question arises under this Act whether or not a person is a British citizen or is entitled to any exemption under this Act it shall lie on the person asserting it to prove that he is”. The issue was therefore one for the appellant to raise, which he did, and by necessary implication, for the judge to decide. She did make findings of fact which she was entitled to make relevant to that issue. She decided at paragraph 33, as appears to have been common ground, that the appellant’s grandfather Thomas Henry Chettle was a British citizen. She also decided on the balance of probabilities, at paragraph 34, that the appellant’s father Michael Towett Chettle was the son by birth of Thomas Henry Chettle. She then went on to decide that in the teeth of those facts and of the recent decision of the Supreme Court Johnson v Secretary of State for the Home Department [2016] UKSC 56 that the Secretary of State was likely to accept that he was a British citizen. With respect to her, that was not her task and the first ground of appeal brought by the Secretary of State that it was not for her to second guess what the Secretary of State would decide, is as a matter of law, correct. What the judge had to decide was whether or not the appellant was a British citizen otherwise than by descent. The reason for that is to be found Section 2(1)(a) of the British Nationality Act 1981 which provides:
“(1) A person born outside the United Kingdom and the qualifying territories after commencement shall be a British citizen if at the time of the birth of his father or mother –
(a) is a British citizen otherwise than by descent”.
5. A British citizen “by descent” is defined in Section 14 of the 1981 Act. The definition is extensive and self-contained in that it sets out all of the categories of persons who are British citizens by descent. The appellant’s father does not fall into that category. It is common ground the appellant’s father was a citizen of the United Kingdom and Colonies. Under Section 2(1)(d) of the Immigration Act 1971 as originally enacted:
“A person is under this Act to have the right of abode in the United Kingdom if ...
(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”.
That description of parent fits the appellant’s grandfather. The description of person fits the appellant’s father: the appellant’s grandfather was a British citizen by birth in the United Kingdom; the appellant’s father was a Commonwealth citizen born of him. Accordingly, his father had the right of abode on the date the British Nationality Act came into force, 1 January 1983.
6. Section 11 of that Act provides:
“Citizens of UK and Colonies who are to become British citizens at commencement:
(1) Subject to subSection 2, (which is not relevant), 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”.
Accordingly by operation of law the appellant’s father became a British citizen otherwise than by descent when the British Nationality Act 1981 came into force on 1 January 1983. It therefore follows that the appellant, who was born outside the United Kingdom in 1985, after commencement of the British Nationality Act 1981, became a British citizen as the son of a British citizen otherwise than by descent.
7. Accordingly, and for those somewhat tortuously explained reasons, the appellant always has been a British citizen. It follows that he cannot be deported and for that ultimately simple reason his appeal to the First-tier Tribunal was bound to succeed, irrespective of the relationship if any which he may have had with his daughter and irrespective of any other consideration including the seriousness of his criminality.
8. For those reasons this appeal is dismissed.

No anonymity direction is made.

Signed Date 5 April 2017

Mr Justice Mitting

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 5 April 2017

Mr Justice Mitting