Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/21201/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 February 2017
On 03 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

SWAYE RICHARDO BINNS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: In person
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Housego) dismissing his appeal against the respondent’s decision of 26 May 2015 refusing to grant him a certificate of entitlement to the right of abode in the UK.

Background
2. The appellant was born on 29 November 1978 in Jamaica. He is a citizen of Jamaica and also a Commonwealth citizen. On 19 March 2015 he applied for a certificate of entitlement to the right of abode. He confirmed in his application that he had been born in Jamaica as had his mother and father and that he had entered the UK via Heathrow airport on 26 November 2000 and was still living in the UK.
3. His application was refused for the reasons set out in the decision letter of 26 May 2015. The appellant had applied for a certificate of entitlement on the basis of being a Commonwealth citizen born before 1 January 1983 but he could not meet the requirements set out in s.2 of the Immigration Act 1971(“the 1971 Act”) as amended by s.39 of the British Nationality Act 1981 (“the 1981 Act”). Jamaica had obtained independence on 6 August 1962 and the appellant would have become a citizen of Jamaica on his birth on 29 November 1978. His parents were born in Jamaica and would have been citizens of the United Kingdom and Colonies (CUKCs) before Jamaica’s independence but became citizens of Jamaica on independence. The appellant had not provided any evidence that either of his parents were registered or naturalised in the UK or another independent Commonwealth country before his birth and for this reason he failed to show that he was entitled to a certificate of entitlement.
4. In his grounds of appeal the appellant argued that he was eligible for the right of abode in accordance with s.2 of the 1971 Act as amended. He was qualified for the right of abode before 1 January 1983 as he was a Commonwealth citizen either by birth in accordance with s.2(1)(a) and he also had the right of abode as a Commonwealth citizen under the original s.2(1)(d) or s.2(2) of the 1971 Act, not having ceased to be a Commonwealth citizen at any time in accordance with s.2(1)(b). He argued that he was a Commonwealth citizen at birth by registration or naturalisation or, in the alternative, that he was a Commonwealth citizen who on 31 December 1982 had the right of abode under s.2(1)(d) or s.2(2) of the 1971 Act.
The hearing before the First-tier Tribunal
5. The appellant did not appear and was not represented at the hearing before the First- tier Tribunal and the judge proceeded to decide the appeal in his absence. The judge said at [4] that a Commonwealth citizen was eligible for a right of abode in the UK in two ways, firstly, under s.2(1) of the 1971 Act as a Commonwealth citizen (not a British citizen) born before 1 January 1983 to a parent or adoptive parent who was born, naturalised or registered in the UK or an independent Commonwealth country prior to the birth of the applicant. The second way under s2(2) of the 1971 Act related to female Commonwealth citizens and had no relevance to the appellant’s application. The judge noted that Jamaica became independent on 6 August 1982 (in all probability this is a clerical error as Jamaica became independent on 6 August 1962 but in any event for the reasons set out below this error of fact has no bearing on the outcome of the appeal).
6. The judge said that the appellant had provided no evidence that either of his parents were registered or naturalised in the UK or an independent commonwealth country before his birth and this was central to a successful application for a certificate of entitlement. The judge concluded his decision at [12] by saying that the appellant had not provided any evidence in support of his appeal and, whether he was right on the law or not, without evidence the appeal could not succeed because the burden of proof that was on the appellant on the balance of probabilities. His appeal was accordingly dismissed.
7. Permission to appeal was granted by the First-tier Tribunal on the basis that it was arguable that the judge had failed to engage with the evidence presented by the appellant to the respondent in conducting the analysis constituting the footing for the conclusion set out in [12] of the decision. The judge had not referred to the extent of the material made available by the appellant to the respondent or whether the respondent was in possession of material produced by the appellant, which may or may not have formed part of the papers before the judge.
The Grounds and Submissions
8. In his grounds the appellant explained that he did not attend the First-tier Tribunal because he would have preferred his application to have been dealt with in the Queen’s Bench Division of the High Court but he had been unable to proceed this way because he had the right of appeal to the First-tier Tribunal. He argued that the decision to refuse his application was made under the wrong act: he had applied under s72 of the 1971 act and s.39 of the 1981 Act and not under s.10 of the Nationality, Immigration and Asylum Act (“the 2002 Act”).
9. The grounds argue that the judge had acknowledged that his parents were born in Jamaica and were CUKCs and that his parents were citizens of the UK and were registered in the UK or an independent Commonwealth country. They point out that Jamaica gained independence on 6 August 1962 not 1982 as set out in the decision and argue that this was a grave error resulting in an error of law.
10. At the hearing before me the appellant said that his parents and his grandparents had all been born in Jamaica and he produced copies of their birth certificates, confirming that this was the case. He submitted that they had been British and had been directly connected to the UK by virtue of having lived in a British colony. He explained that he had come to the UK as a visitor in November 2000 and was later granted leave to remain as a student but this had expired in 2003. Since then he had been trying to resolve his status in the UK.
11. He referred to the provisions of s. 37 (1) and Schedule 3 of the 1981 Act to confirm that he was a Commonwealth citizen. He referred to the Home Office Guidance on entitlement to the right of abode and in particular the provisions dealing with who had the right of abode before January 1983. He also referred to and relied on s.2(4) of the Jamaica Independence Act 1962 (“the 1962 Act”) in support of his argument that his parents should not be regarded as having ceased to be CUKCs on the independence of Jamaica in 1962. He further submitted that the birth certificates he produced indicated that his parents and grandparents had been registered as citizens.
12. Mr Clarke produced the Home Office Guidance, Nationality: right of abode version 1.1 dated 5 April 2016. He submitted that the appellant’s application had to be considered in the light of law as it stood at present. The appellant’s parents had been CUKCs but, by Jamaica becoming independent on 6 August 1962, they had lost that status pursuant to s2(2) of the 1962 Act. The provisions of s2(4) of that Act could not be interpreted to support the argument that the appellant’s parents had not ceased to be a CUKCs. They had not been born in a protectorate or a protected state. The appellant was therefore not able to show that he was a Commonwealth citizen with a parent who at the time of his birth was a CUKC by birth, naturalisation or registration in the UK.
Consideration of the Issues
13. There is no dispute that the appellant is a citizen of Jamaica and also a Commonwealth citizen. The requirements to be met by a Commonwealth citizen seeking to show an entitlement to a right of abode were set out in s.2 (1)(a), (b)(i)(ii), (c), (d) and s.2(2) of the 1971 Act as originally drafted. They are summarised at page 5 of the Home Office Guidance and those relevant to this appeal required birth, adoption, naturalisation or registration in the UK or being born to a parent who met those conditions.
14. In order to qualify for a right of abode under s.2(1)(b) of the 1971 Act as amended with effect from 1 January 1983, he has to show that:
“...(b) he is a Commonwealth citizen who-
(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2 (1)(d) of this Act as then in force: and
(ii) has not ceased to be a Commonwealth citizen in the meantime.”
Section 2(1)(d) as then in force was as follows:
“…(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.”
Section 2(2) refers to female Commonwealth citizens and has no relevance to this appeal.
15. The appellant is unable to meet these requirements. The 1962 Act relating to Jamaica’s independence provided at s.2(2) that:
“Subject to the following provisions of this section, any person who immediately before the appointed day for Jamaica’s independence is a [CUKC] shall on that day cease to be such a citizen if –
a) under the law of Jamaica he becomes on that day a citizen of Jamaica, and
b) he, his father or his father’s father was born in Jamaica.”
In the light of this provision the appellant’s parents who were CUKCs by virtue of their birth in the colony of Jamaica lost their CUKC status when Jamaica became independent on 6 August 1962.
16. The appellant sought to rely on the provision in s.2(4) of the 1962 Act which reads as follows:
”A person shall not cease to be a [CUKC] under subsection (2) of this section if he was born in a protectorate or a protected state, or if his father or his father’s father was so born and is or at any time was a British subject.”
He argued that the final clause, “or if his father or his father’s father was so born and is or at any time was a British subject” should be read separately as a third category distinguished from those born in a protectorate or protected state. However, I am not satisfied that this subsection can be interpreted in this way. It is clearly intended to provide that a person born in a protected or protected state or whose his father or grandfather was so born and was at any time a British subject should not cease to be a CUKC. The words “was so born” clearly refer back to being born in a protectorate or protected state. The effect, therefore, of the provision in s.2(2) is that the appellant’s parents ceased to be CUKCs on Jamaica’s independence and the appellant is unable show that either he or his parents had the right of abode in the UK on 31 December 1982.
17. The appellant made the point that he, his parents and his grandparents had had their birth properly registered in Jamaica but this does not fall within the category of being registered as a British citizen within the original provisions of s.2(1)(a) of the 1971 Act.
18. In his grounds the appellant had argued that his application was wrongly dealt with under s. 10 of the 2002 Act but there is no substance in this argument as this is simply the section making provision for the issue of certificates of entitlement. He was right to point out the error in the judge’s decision about the date of Jamaica’s independence but this error had no material bearing on the outcome of his application or appeal.
19. An issue was raised by the respondent in her rule 24 reply arguing that the appellant had no right of appeal in the light of the withdrawal of that right on 6 April 2015 following amendments to s.82 of the 2002 Act but it was agreed at the hearing that the appellant fell within the transitional provisions as his application was made before 6 April 2015 and he therefore has a full right of appeal.
20. Permission to appeal was granted on the basis that the judge may have erred by failing to consider evidence which the appellant had in fact submitted. However, having considered the evidence relied on by the appellant and the submissions he has made in support of his application, I am not satisfied that he is able to establish his entitlement to a right of abode. The fact remains that there was no evidence before the respondent, the First-tier Tribunal or this Tribunal to show that the appellant is entitled to the right of abode. On the evidence before the judge the appeal could not succeed and even if, which I doubt, the judge erred in law by failing to consider the evidence produced or in the way he expressed himself when dismissing the appeal, any such error had no material bearing on the outcome of the appeal.
Decision
21 The First-tier Tribunal did not err in law in any way requiring the decision to be set aside and the decision to dismiss the appeal stands. No anonymity order was made by the First-tier Tribunal.

Signed H J E Latter Date: 1 March 2017

Deputy Upper Tribunal Judge Latter