Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06452/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 November 2016
On 12 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

MR SHADULI MEETHAL
Appellant
and

ENTRY CLEARANCE OFFICER
(CHENNAI)
Respondent

Representation:
For the Appellant: Mr Kanangara, of counsel
For the Respondent: Mr I Jarvis, a senior Home Office Presenting Officer, on behalf of the Entry Clearance Officer ('ECO')

Decision
Introduction

1. The appellant is a citizen of India born on 14 May 1990. On 13 February 2015 he applied for a certificate of entitlement to a right of abode in the UK. The basis of the application was that his grandfather, Mr Mammu, was a British citizen whose daughter, Mrs Fathima (the appellant's mother), had been granted a certificate of entitlement to a Right of Abode on the basis of her father's British status. The Entry Clearance officer refused his application on 11 March 2015 on the basis that neither of the appellant's parents was a British citizen by birth at the time of the appellant's birth.
2. The appellant appealed against the ECO's decision to the First-tier Tribunal. In a decision, promulgated on 21 June 2015, First-tier Tribunal Judge Carroll dismissed the appellant's appeal. The First-tier Tribunal found that as neither of the appellant's parents was a citizen of the United Kingdom at the time of his birth he did not satisfy the provisions of section 2(1) of the Immigration Act 1971.
3. The appellant applied for permission to appeal against the First-tier Tribunal's decision to the Upper Tribunal. On 21 October 2016 First-tier Tribunal Judge Holmes granted the appellant permission to appeal.
4. The grounds of appeal assert that the First-tier Tribunal erred by failing to apply the law correctly and in failing to make proper findings. In particular it is asserted that the appellant was not relying on section 2(1) of the Immigration Act 1971 ('the 1971 Act') - the applicable provision was section 2(1)(a) of the British Nationality Act 1981 ('the 1981 Act'). Further it is submitted that the appellant's mother was granted a right of abode. The right of abode stamp in his mother's passport and the determination of her appeal was part of the appeal bundle as was the appellant's aunt's and his cousin's appeals determinations. It is asserted that the same law that was applicable to his cousin applies to the appellant.
5. The ECO served a notice under Rule 24 (of the Tribunal Procedure (Upper Tribunal) Rules 2008). The ECO asserts that the appellant's mother obtained her certificate of entitlement to the right of abode by virtue of her descent from her father who registered for British Citizenship in 1966. It is also asserted that the appellant does not have a legitimate expectation based on the fact that other members of his family have had appeals allowed.
The hearing before the Upper Tribunal
6. At the hearing before us we were provided with a skeleton argument on behalf of the ECO. Mr Kanangara referred to the appellant's skeleton argument that was before the First-tier Tribunal.
7. In oral submissions Mr Kanangara clarified that the appellant was not arguing that a legitimate expectation had arisen as a result of the grant of a certificate of entitlement to a right of abode in respect of his cousin. The position of the appellant was that the Upper Tribunal (Judge Pitt) in his cousin's case correctly applied the law and that the law should be applied in the same way to the appellant. Therefore his appeal should also be allowed.
8. He submitted that the basis of the appeal was that the appellant's mother was granted a right of abode under section 2(1)(a) of the 1971 Act. After questions from the panel and after considering the appellant's mother's passport which bore the endorsement 'Sec 2(1)(b)(i)', Mr Kanangara submitted that it made no difference if the appellant's mother was granted a right of abode under section 2(1)(a) or (b) of the 1971 Act. He submitted that the appellant's mother's father (born in India) had been registered as a British Citizen under s 6(1) of the British Nationality Act 1948 ('the 1948 Act') in 1954 and subsequently in 1966. Therefore because she was born to a British citizen at the time of her birth she was entitled to British citizenship. He submitted that she was a British citizen from birth. When pressed, Mr Kanangara was unable to cite any specific legislative provision that conferred British citizenship on the appellant's mother as a right from birth. He cited section 2(1)(a) of the 1971 Act asserting that the appellant's mother was a British citizen from birth. When asked to clarify the precise legislative basis of the appellant's mother's right of abode he submitted that the appellant's mother was entitled to a right of abode throughout her life. He submitted that under sections 2(1)(a) and (b) of the 1971 Act the right of abode is not obtained by descent. The new version of the 1971 Act makes no reference to obtaining a right of abode by descent. The law was amended in 1983 and the heading 'by descent' was removed. It was only under the previous version of the 1971 Act that the right of abode obtained under the unamended sections was obtained by descent. He referred to the Tribunal decisions in the bundle and submitted that the law had been correctly applied in the case of the appellant's mother, aunt and cousin.
9. Mr Jarvis submitted that there are two circumstances relevant to the instant case - either a person is a British citizen or a Commonwealth citizen. Reference must be made to the previous version of the 1971 Act which provides for a right of abode by descent. He submitted that this was the only way that the appellant's mother could have obtained a right of abode. He explained that the nexus between the appellant's mother and her father provided her with a right of abode by descent. The appellant cannot succeed as the only nexus for the appellant is through a descendant. He submitted that the law is clear as to what the appellant has to show.
10. To determine if there was an error of law in the First-tier Tribunal's decision we need to establish whether or not the appellant's mother obtained her British citizenship by descent and whether or not she had the status of British citizen at the time of the appellant's birth. As set out above the basis of the appellant's mother's British citizenship was not clear. We therefore asked the parties to clarify the basis upon which the appellant's mother obtained her right of abode as it was not clear to us how she qualified under the current provisions in section 2(1)(b) of the 1971 Act which refer to the previous provisions in the 1971 Act. Under section 2(1)(d) of the previous version of the 1971 Act (the only relevant provision) the appellant's mother did not satisfy the criteria set out therein as her father had not been born in the UK. We gave directions to the parties to provide the following written clarification:
1. The appellant's mother's passport contains a 'Certificate of Entitlement to the Right of Abode' with a reference to section 2(1)(b)(i). The parties shall provide written submissions setting out the basis upon which the appellant's mother was granted the right of abode with reference to the correct statutory provisions under which she qualified and the basis upon which she qualified.
2. The parties shall provide written submissions setting out whether or not the grant of the right of abode to the appellant's mother falls within s14 of the British Nationality Act 1981 - 'Meaning of British citizen 'by descent' '.
3. The parties shall provide written submissions setting out on what basis section 2 of the Immigration Act 1971 could apply to the appellant's mother in its original form.
11. These submissions were required to be filed by 30 November 2016.
12. Both parties filed written submissions. We are grateful to the parties for setting out in detail the basis of their arguments. We do not set those arguments out here but refer to them in the analysis of the law and application to the facts below.
Discussion
13. In order to succeed in his appeal to the Upper Tribunal it is for the appellant to demonstrate firstly, that the First-tier Tribunal materially erred in law and secondly, that he satisfies the relevant legal provisions entitling him to a certificate of entitlement to a right of abode in the UK.

14. It is asserted that the First-tier Tribunal materially erred by referring to the 1971 Act rather than the 1981 Act. It is argued that the appellant was not relying on section 2(1) of the Immigration Act 1971 - the applicable provision was section 2(1)(a) of the British Nationality Act 1981. The appellant (unsurprisingly) did not specify on his application form the legal provision under which he was applying for a certificate of entitlement to the right of abode in the UK. His application was considered and refused under s 2(1) of the 1971 Act. The basis of the appellant's application was that he qualified for the right of abode on the basis of his relationship to his maternal grandfather. In answer to question 70 on the application form 'How do you qualify for the right of Abode', the appellant stated 'A citizen or (sic) the UK and Colonies at birth and with a grandparent born, registered, naturalised or adopted in the UK'. This is clearly a reference to the 'Right of Abode' entitlement set out in section 2 of the 1971 Act. The First-tier Tribunal refers throughout its decision to the 1971 Act. The right of abode is a statutory right, which a person either has or does not have, depending on whether they meet the conditions in section 2(1) of the 1971 Act. Section 2 of the 1981 Act concerns only acquisition of British citizenship by descent not the requirements for a right of abode. There was no error in the First-tier Tribunal's decision in considering and deciding that the appellant did not satisfy the provisions of s.2(1) of the 1971 Act. However, reference is made to paragraph 9 of the appellant's skeleton argument recording the submission that the appellant acquired British citizenship by descent under section 2(1)(a) of the 1981 Act. The First-tier Tribunal did not consider this argument. At paragraph 12 the reason for this was set out as:

'This argument does not address the basis of the ECO's refusal namely that at the time of his birth neither of his parents were citizens of the United Kingdom. Indeed at the time of his birth his mother did not even hold a Certificate of Entitlement to the Right of Abode?'
15. The appellant's skeleton argument before the First-tier Tribunal is not easy to follow. Essentially it was argued that the appellant's mother was upon her birth entitled to register as a British subject under s 7 of the 1981 Act and that her rights as a British National were subsequently recognised when she was granted a certificate of entitlement to the right of abode in 2010. Clearly the appellant's mother could not have been entitled to anything under the 1981 Act at the time she was born in 1972 as it had not been enacted. Further, the appellant's mother did not in fact register so whether she could have done so is immaterial (we have therefore not considered if she was entitled to registration). However, the issue as to whether or not the appellant's mother was a British citizen at the time of the appellant's birth in 1990 was a material issue that was relevant to the appellant's right of abode which in turn depends upon the appellant's acquisition of British citizenship under the 1981 Act. The First-tier Tribunal did not provide any reasons as to why it considered that the appellant's parents were not British citizens at the time of his birth. The holding of a certificate of entitlement to a right of abode is not determinative as a certificate is evidence of the entitlement not the entitlement itself which is (on the facts of this case) a relevant factor. Although this amounts to an error of law for the reasons we give below it was not material.
16. Essentially, for the purposes of this case, for the appellant to be entitled to a right of abode (under the current version of s.2 of the 1971 Act), the appellant must prove that in accordance with s. 2 of the 1981 Act he has acquired British citizenship. In order to acquire British citizenship he must be able to demonstrate that his mother was a British citizen 'otherwise than by descent' and was so at the time of his birth. This is the crux of this appeal. It was not argued with clarity before us or the First-tier Tribunal, hence the need for the parties to provide us with written submissions on this point.
17. The appellant was born on 14 May 1990. Rather than the usual approach of working through citizenship from the 1948 Act to the present day we consider that working backwards is instructive in this case.
18. The current version of section 2 of the 1971 Act (insofar as is relevant to this appeal) provides:
'Statement of right of abode in United Kingdom.
(1)A person is under this Act to have the right of abode in the United Kingdom if-
(a) he is a British citizen; or ?'
19. Section 2 of the British Nationality Act 1981 provides (insofar as is relevant to this appeal):
'2 Acquisition by descent.
(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 his father or mother-
(a) is a British citizen otherwise than by descent; or?'
Was the appellant's mother a British citizen on 14 May 1990?
20. British citizenship is a legal status that was introduced on commencement of the 1981 Act. In order to determine if the appellant's mother became a British citizen when the 1981 Act commenced it is necessary to consider what her citizenship status was before 1 January 1983 and whether she was entitled to a right of abode. This is because on commencement of the 1981 Act British citizenship status was conferred automatically reflecting the circumstances of citizens of the United Kingdom and Colonies ('CUKC'). It has not been argued that the appellant's mother had any status other than a CUKC prior to the 1981 Act. CUKCs who had the right of abode acquired British Citizenship automatically at commencement of the 1981 Act (s.11).
21. Section 11 of the 1981 Act provides:
11. Citizens of U.K. and Colonies who are to become British citizens at commencement.
(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."
22. The appellant argues that the appellant's mother was entitled to the right of abode under section 2(1)(a) of the 1971 Act as originally enacted (in force prior to amendment by the 1981 Act) . This provided:

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 ...

23. In order to satisfy s. 2(1) of the 1971 Act as enacted the appellant's mother must have been a CUKC. The appellant has failed to address this issue and has not set out the basis on which the appellant's mother was a CUKC. In 1972 when the appellant's mother was born India was no longer a colony. No provision in the 1948 Act has been cited that would entitle the appellant's mother to become a CUKC simply by virtue of her birth in India in 1972. In other words she was not a CUKC independent of her father's status. The ECO submits that the appellant's mother became a CUKC by virtue of being the descendent of a CUKC under s. 5(1) of the 1948 Act (we consider below the issue with regard to the CUKC status of the appellant's grandfather).

24. Section 5 of the 1948 Act provided:

'5.-Citizenship by descent
(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth'

25. No other provisions have been cited to us. We accept the ECO's submission. The appellant's mother's CUKC status was obtained by descent from the appellant's grandfather.
26. Having established that the appellant's mother was a CUKC we move to consider whether she had the right of abode in the UK.
27. The appellant's mother clearly cannot satisfy 2(1)(a) of the 1971 Act as enacted as she was not born in the United Kingdom.
28. The appellant argues that his mother cannot satisfy s2(1)(b) because the appellant's grandfather did not obtain his citizenship registration in the UK-the registration of his citizenship was in 1954 in Singapore. If the appellant was correct in this assertion then the appellant's mother did not have a right of abode at all.
29. The ECO explains that section 6(1) of the 1948 Act, as amended by s. 12(2) of the 1962 Commonwealth Immigrants Act, provided:
"6.-(1) Subject to the provisions of subsection (3) of this section, a citizen of any country mentioned in subsection (3) of section one of this Act or a citizen of Eire, being a person of full age and capacity, shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies if he satisfies the Secretary of State either-
(a) that he is ordinarily resident in the United Kingdom and has been so resident throughout the period of twelve months, or such shorter period as the Secretary of State may in the special circumstances of any particular case accept, immediately preceding his application ; or
(b) that he is in Crown service under His Majesty's government in the United Kingdom."
30. The ECO submits that, although the appellant's grandfather was not in the UK as required at s. 6(1)(a) (he was registered as a British Subject in Singapore which was a colony at the time), as he served under the British War Department in Singapore s. 8(1) of the 1948 Act allows for an analogous provision in Colonies, protectorates or UK trust territories:
'8.-(1) The functions of the Secretary of State under the last two foregoing sections shall in any colony, protectorate or United Kingdom trust territory be exercised by the Governor ; and those sections shall, in their application to any colony, protectorate or United Kingdom trust territory, have effect as if for references therein to the Secretary of State there were substituted references to the Governor, and as if for the reference in the first of the said sections to ordinary residence in 'the United Kingdom there were substituted a reference to ordinary residence in that colony, protectorate or territory as the case may be.'
31. The appellant's grandfather was in any event subsequently issued with registration on 19 September 1966 as a CUKC who had been ordinarily resident in the UK for the applicable period. This was prior to the birth of the appellant's mother in 1972.
32. We accept the ECO's submissions. This accords with the appellant's grandfather's United Kingdom passport, a copy of which is in the bundle. The appellant's grandfather was a CUKC (by registration in the UK) on 4 March 1972 when the appellant's mother was born. The appellant's mother would have been entitled to a right of abode under s.2(1)(b)(i) of the 1971 Act as originally enacted as she was a CUKC born to a parent who had that citizenship. We note that the basis of the appellant's mother's application for a certificate of entitlement to a right of abode and subsequent appeal was based on her father's CUKC status - hence the need to prove that she was his descendant. We also note that the appellant's mother was granted a certificate of entitlement to a right of abode on the basis of s.2(1)(b)(i) of the 1971 Act.
33. As we have found that the appellant's mother was a CUKC and had the right of abode under s. 2 of the 1971 act as enacted she automatically became a British Citizen by virtue of s11 of the 1981 Act on 1 January 1983 when the Act commenced. She was therefore a British Citizen when the appellant was born on 14 May 1990.
Was the appellant's mother a British Citizen 'otherwise than by descent'?
34. Although it is clear from the above that the appellant's mother's CUKC status and right of abode were as a result of her descent from the appellant's grandfather, for the purpose of s. 2 of the 1981 Act the meaning of British citizen by descent is defined in section 14 which provides:
14 Meaning of British citizen (by descent).

(1) For the purposes of this Act a British citizen is a British citizen "by descent" if and only if-
(a) he is a person born outside the United Kingdom after commencement who is a British citizen by virtue of section 2(1)(a) only or by virtue of registration under section 3(2) or 9; or
(b) subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement-
(i) was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent); or
(ii)was a person who, under any provision of the British Nationality Acts 1948 to 1965, was deemed for the purposes of the proviso to section 5(1) of the 1948 Act to be a citizen of the United Kingdom and Colonies by descent only, or would have been so deemed if male; or
(iii) had the right of abode in the United Kingdom by virtue only of paragraph (b) of subsection (1) of section 2 of the Immigration Act 1971 as then in force (connection with United Kingdom through parent or grandparent), or by virtue only of that paragraph and paragraph (c) of that subsection (settlement in United Kingdom with five years' ordinary residence there), or by virtue only of being or having been the wife of a person who immediately before commencement had that right by virtue only of the said paragraph (b) or the said paragraphs (b) and (c); or?
35. The ECO asserts that the appellant's mother falls within paragraph (b)(i) above - i.e. she was a CUKC by virtue of s. 5 of the 1948 Act. Section 14(1)(b)(iii) is also applicable as the appellant's mother had the right of abode by virtue only of paragraph (b) of s.2 of the 1971 Act as enacted. We consider that the appellant's mother falls either within (b)(i) or (b)(iii) or both. The result is that the appellant's mother is a British citizen by descent within the meaning of s. 14 of the 1981 Act.
36. The appellant cannot therefore acquire British citizenship in accordance with section 2 of the 1981 Act. Further, he does not satisfy the requirements of s.2 of the current version of the 1971 Act and is not entitled to a right of abode in the UK.
37. As was clarified at the hearing before us the appellant does not advance a case based on legitimate expectation arising out of the successful appeals of his relatives. The case put was that the law had been correctly applied in those appeals. We are grateful for that clarification and consider that it was correct for the appellant to acknowledge that no legitimate expectation arises. We do not make any comment on the correctness or otherwise of the decisions in relation to the appellant's relatives.
38. No anonymity direction is made.

Decision
39. The decision of the First-tier Tribunal did not contain a material error of law. The appellant's appeal is dismissed. The decision of the ECO stands.

Signed P M Ramshaw Date 10 January 2017

Deputy Upper Tribunal Judge Ramshaw