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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary Of State For Home Department v Ullah [2001] EWCA Civ 659 (10 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/659.html Cite as: [2001] EWCA Civ 659, [2001] 3 WLR 1508, [2001] Imm AR 439, [2001] INLR 542, [2002] QB 525 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE & DIVISIONAL COURT) GIBBS J
Strand, London, WC2A 2LL Thursday 10th May 2001 |
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B e f o r e :
LORD JUSTICE LATHAM
and
MR JUSTICE LLOYD
____________________
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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AZAD ULLAH |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Laurens Fransman and Mr. D. Blum (instructed by Tower Hamlets Law Centre for the Respondent)
____________________
Crown Copyright ©
LORD JUSTICE LATHAM:
"In your letter you state that you wish to continue with your application for naturalisation as a British citizen. As previously explained in my letter of the 14th October 1998 you are already a British citizen and therefore cannot and do not need to apply for naturalisation "(original emphasis)
"I am afraid that it remains our view that Mr Ullah, being a British citizen already, is ineligible for naturalisation as such a citizen.
Although the 1981 Act does not expressly rule out the possibility that a British citizen "by descent" could be granted a certificate of naturalisation under s. 6, and thereby become a citizen "otherwise than by descent", it is we think implicit in the structure of the Act, and in the record of proceedings on the then British Nationality Bill, that Parliament cannot have intended this to be possible.
The Act specifically provides for British dependent territories citizens, British Nationals (Overseas), British Overseas citizens, British subjects and British protected persons to register as British citizens in specified circumstances (s. 4). No such procedure is laid down for registration as British citizens "otherwise than by descent" by British Citizens "by descent". (The marginal note against s. 6, for example, refers to acquisition [of British citizenship] by naturalisation (my emphasis)). Section 14 sets out an exclusive definition of who is a British citizen by descent, and provides in particular that those who renounce British citizenship and subsequently reregister will still be citizens by descent (s-s (1)(f) and (g)).
Amendments to the Bill which would have facilitated the sort of application you have in mind were successfully resisted in 1981 on the ground that any children of British citizens by descent who might reasonably expect to be able to acquire our citizenship would be adequately catered for by the registration provisions in the legislation (House of Lords Official Report 23.7.81 cols 325 to 331 and 7.10.81 cols 166 to 174). The Government has no plans to change the law on this point"
"If on an application for naturalisation as a British citizen by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this sub-section, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
"Citizens of the UK and Colonies who are to become British citizens at commencement"
".... 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."
"For the purposes of this Act a British citizen is a British citizen "by descent" if and only if:
........
(b) ....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 s. 5 of the 1948 Act (citizenship by descent) ......"
"A person born outside the United Kingdom 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 ...."
"A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the following requirements are satisfied; namely:
(a) that at the time of that person's birth his father or mother was a British citizen by descent; and
(b) subject to s-s (6) that that person and his father and mother were in the United Kingdom at the beginning of the period of three years ending with the date of the application and that, in the case of each of them, the number of days on which the person in question was absent from the United Kingdom in that period does not exceed 270; and
(c) Subject to s-s (6) that the consent of his father and mother to his registration has been signified in the prescribed manner."
"A person to whom a certificate of naturalisation as a British citizen or as a British Dependent Territory citizen is granted under any provision of this Act shall be a citizen of that description as from the date on which the certificate is granted."
"3. The distinction between British citizens by descent and British citizens otherwise than by descent is primarily relevant in determining the status of children born outside the United Kingdom to parents who themselves are British citizens. .....
3(Sic) If this distinction was not made, it would be possible for British citizenship to be transmitted indefinitely by automatic acquisition to successive generations, regardless of any real connection with the United Kingdom. If it were possible for a British citizen by descent to be naturalised, and if, by being naturalised that person became a British citizen otherwise than by descent, the provisions to prevent such indefinite transmission would be undermined. The provisions have operated in accordance with this interpretation for almost 20 years, and the Secretary of State would respectfully invite the court to reject any submission that the scheme could be regarded as "absurd""
THE HON MR JUSTICE LLOYD:
LORD JUSTICE JUDGE: