Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/16211/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Friday 7 February 2014
On Thursday 20 February 2014

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Before

MR JUSTICE HICKINBOTTOM

and

UPPER TRIBUNAL JUDGE McGEACHY

Between

JERRY CHIMA UKAIGWE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Did not appear and was not represented
For the Respondent: Mr Deller, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. On 12 May 2012, the Appellant Jerry Chima Ukaigwe applied for United Kingdom entry clearance on the basis of a Right to Abode Certificate of Entitlement completed online by himself. In the application, made from Accra, Ghana, he said he had been born on [ ] 1974, in [ ] Hospital, London. In support, he lodged a birth certificate (i.e. a certified copy of the Births' Register) confirming that, on [ ] 1974, [GU], stated to be living at [Catford], gave birth to a boy, Jerry Chima Ukaigwe. The father was named as [MU], said to have been a bank executive. In addition, the Appellant lodged a number of supporting documents, to which we shall return in due course. The Appellant was not interviewed.
2. His application was refused on 26 July 2012. The Entry Clearance Officer was not satisfied that he met the relevant requirements because the Appellant had not submitted documents demonstrating (i) his parent's status in the United Kingdom at the time of his birth, and (ii) that he was the individual whose details he had submitted. The refusal notice also noted that the birth certificate submitted was not contemporaneous with the Appellant's birth.
3. The Appellant appealed to the First-tier Tribunal. He was then invited to an interview at the British High Commission in Accra, which he attended on 25 July 2013. It is clear from the notes of the Entry Clearance Officer ("ECO") of that meeting that he was concerned about the immigration status of the Appellant's parents at the time of his birth ("No ILR"), and the fact that the birth certificate produced was not "original" ("Orig B/C sent to UK 1998"). In any event, that interview did not change the ECO's stance with regard to the Appellant's application or appeal.
4. The appeal was dealt with on the papers by Judge Hollingsworth, Judge of the First-tier Tribunal, who refused it in a determination promulgated on 8 October 2103. He concluded that, on the available evidence, the Appellant had not shown that the application was within the Immigration Rules. In particular:
(i) He found that the Appellant's parents did not have appropriate immigration status in the United Kingdom (i.e. leave to remain), when the Appellant was born. That, he said (at paragraph 12 of his determination), was "an important feature of the application as a whole".
(ii) He was unimpressed by the birth certificate lodged. The Appellant has said that his "first original" birth certificate was sent to the Passport Agency in London in 1998, when he had applied for a British Passport, and had not been returned. He obtained a certified copy in 2005, which he lodged with this application. The judge accepted that the certificate showed a male child bearing the same name of the applicant with the same parents. However, he was sceptical about the document, because it was obtained in 2005; and no explanation had been given as to why it had been obtained then.
(iii) He expressed a degree of scepticism and doubt about some of the other documents lodged, often on the basis of the date on which they had been obtained; but he made no finding as to whether the Appellant was born on [ ] 1974 at [ ] Hospital.
5. Unfortunately, the focus of the judge was misplaced.
6. With regard to (i) (the immigration status of his parents at the time of his birth), under the British Nationality Act 1948, a person born in the United Kingdom became a citizen of the United Kingdom and Colonies by birth, unless the individual's father was a foreign diplomat, or an enemy alien and the birth occurred in enemy-occupied territory (sections 4 and 12(1)(a)). The British Nationality Act 1981 abolished citizenship by birth simpliciter; but a person who immediately before commencement of the Act - 1 January 1983 - was a citizen of the United Kingdom and Colonies and had a right of abode in the United Kingdom became a British Citizen under the new Act. By section 2(1)(a), a person had a right of abode in the United Kingdom if he was a citizen of the United Kingdom and Colonies who had that citizenship by reason of birth registration in the United Kingdom.
7. Therefore, if the Appellant was born in the United Kingdom before 1 January 1983, as he claimed, then he had a right of abode and a consequent right to enter the United Kingdom. The status of his parents was irrelevant. There is no suggestion that his father was a diplomat or an alien.
8. With regard to (ii) (the reliability of the birth certificate lodged), by regulation 4 of the Immigration (Certificate of Entitlement for Right of Abode in the United Kingdom) Regulations 2006 (SI 2006 No 3145), an application for a Certificate of Entitlement to Right of Abode must be accompanied by (i) the applicant's passport or travel document, (ii) two photographs of the applicant taken no more than 6 months prior to making the application, and (iii) the additional documents which are specified in the right hand column of the schedule to the regulations. Where the basis of the application is birth in the United Kingdom before 1 January 1983, the document is: "Applicant's full birth certificate, showing parents' details".
9. That is what the Appellant lodged, namely a copy entry of the register relating to the birth, including full details of parents, certified by the Superintendent Registrar. That certificate is proper evidence of the entry details on the register (section 34 of the Births and Deaths Registration Act 1953).
10. Therefore, the two matters upon which the judge focused were unfortunately not germane to the application. The determinative issue was whether the Appellant had shown, on the balance of probabilities, that he is indeed the individual born on [ ] 1974 at [ ] Hospital, as he claimed. If he is, then he has a right of abode in, and a right to enter, the United Kingdom.
11. Unfortunately, that was not an issue with which the judge grappled. In that failure, he erred in law. We should say that the analysis of Mr Deller for the Secretary of State corresponded precisely with our own as set out above: he readily and graciously conceded that the judge erred as we have described, and, as a result, his determination must be set aside. We agree.
12. Having set aside the judge's determination aside, we are able to consider and remake the decision, particularly as it is to be made on the papers only.
13. In addition to his passport, two photographs and his birth certificate, the Appellant lodged the following supporting documents with his application:
(i) An affidavit of [GU] sworn 31 March 2006, confirming that she married [MU] at Asylum Down Cathedral, Ghana on 4 November 1967; that they entered the United Kingdom in 1971 and 1973 respectively, with leave; her passport has been lost; and that she is the biological mother of "the applicant", Jerry Chima Ukaigwe.
(ii) A letter dated 29 August 1975 from the Society of Company and Commercial Accountants confirming the student registration of Mr [MU] of [Catford].
(iii) A letter dated 24 November 1996 from [PO] of [Catford], confirming that:
"Mr & Mrs [MU] lived in my house at the above address when they got their son Jerry Ukaigwe on [ ] 1974. Mr & Mrs [MU] lived in my house from 1973 to 1976."
(iv) Death certificate for [MU] of the Oxford School of Accounting, Imo State, Nigeria, dated 27 April 2006.
(v) A letter dated 16 June 2005 from [ ] Hospital NHS Trust dated 16 June 2005, confirming that [GU], who at that time lived at [Catford], gave birth to a live male infant on [ ] 1974.
(vi) A baptismal certificate, dated 15 March 1997, indicating that, on examination of the Register of Baptisms of the Holy Cross Church in Catford, Jerry Ukaigwe, born on [ ] 1974, was baptised in that church on 15 November 1975. The parents are named as [MU] and [GU].
(vii) A Record of Innoculations for Jerry Ukaigwe, born [ ] 1974, the period of the inoculations being June 1975 to March 1976. The address of the patient is indistinct, but it is an English address.
(viii) The Appellant's Marriage Certificate dated 8 September 2010, showing his father as [MU] (Deceased).
(ix) The Appellant's Nigerian Voting Card, in the name of Jerry Ukaigwe, date of birth [ ] 1974.
(x) Various documents from Nigeria concerning the Appellant's upbringing, including attendance at a nursery school from 1978 to attendance at Enugu State University of Science and Technology from 2000 to 2004.
(xi) A letter dated 18 January 2001 from the Pension Service to Mrs [GU] of [London], confirming her state pension. In his interview, the Appellant said that this had been sent on to him by the occupant of [ ].
It is clear from the papers that the Appellant also lodged a staff identify card purportedly belonging to his mother whilst working in South East London, and his deceased's father's Nigerian driver's licence; but neither of those has found there way into our papers. We do not regard those documents as crucial.
14. Judge Hollingsworth appeared concerned by the fact that some of the documents were not "contemporaneous". For example, in addition to the birth certificate, the baptismal certificate was obtained in 1997, although the baptism was in 1975; the letter from the [ ] landlord is dated 1996; and the letter from [ ] Hospital confirming the birth is dated 2005. We do not share any serious concerns about this timing. It is clear that the Appellant has made a number of applications based on his right to abode. For example, it seems clear from the UK Passport Service letter of 24 January 2004, that the Appellant made an application to the service in London in 1998, which probably explains the documents with dates shortly before that. That letter informed him that he would have to resubmit his application to the British High Commission in his country of residence, which he did: there is a record of him attending the High Commission on 28 June 2005. That record indicated that the High Commission wished to see "Sworn affidavit from mother ?", which explains the date of her affidavit.
15. Of the available documents, none is inconsistent with the Appellant being born on [ ] 1974 at [ ]. Most are obviously consistent. A number of documents record the Appellant's date of birth as [ ] 1974; they all refer to him by the name of the individual born at [ ] Hospital that day (and consistently refer to his parents by the names given in the birth certificate). There are a number of documents which support the proposition that his parents lived and worked in South East London in 1974; and the inoculation record is consistent with the Appellant having lived in London in 1975-6. All of the documents are consistent with him leaving the United Kingdom in about 1976, as he claims he did.
16. Looking at all of the evidence we have before us, we are satisfied that, on the balance of probabilities, the Appellant is the individual who is the subject of the various documents which he has lodged. The documents are curiously disparate, and many are personal; but that, in our view, supports the proposition that they are genuine. In particular, on all the evidence before us, we are satisfied that the Appellant is the individual born at [ ] Hospital on [ ] 1974.
17. Consequently, for the reasons we have given, he has a right of abode in the United Kingdom; and the right to enter.
Decision
18. For those reasons, the Immigration Judge erred in law; and his decision is set aside. It is remade as follows: the Appellant's appeal against the Secretary of State's refusal of his application for entry clearance is allowed.

Signed

The Hon Mr Justice Hickinbottom
Dated 17th February 2014