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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 >> MB (Bangladesh) v Secretary of state for the Home department [2013] EWCA Civ 220 (21 February 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/220.html Cite as: [2013] EWCA Civ 220 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: OA/56881/2009]
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RICHARDS
and
LORD JUSTICE LEVESON
____________________
MB (BANGLADESH) by her MOTHER and LITIGATION FRIEND, JB |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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WordWave International Limited
A Merrill Communications Company
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Mr Neil Sheldon (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Lord Justice Richards:
"A person 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 …"
"For the purposes of this Act-
(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but
(b) subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him;
and the expressions "mother", "father", "parent", "child"
and "descended " shall be construed accordingly."
Section 47 is not material to the present issue.
"1. Legitimacy of children of certain void marriages
(1) The child of a void marriage, whenever born, shall, subject to subsection (2) below and Schedule 1 to this Act, be treated as the legitimate child of his parents if at the time of the insemination resulting in the birth or, where there was no such insemination, the child's conception (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid.
(2) This section only applies where the father of the child was domiciled in England and Wales at the time of the birth or, if he died before the birth, was so domiciled immediately before his death.
(3) It is hereby declared for the avoidance of doubt that subsection (1) above applies notwithstanding that the belief that the marriage was valid was due to a mistake as to law.
(4) In relation to a child born after the coming into force of section 28 of the Family Law Reform Act 1987, it shall be presumed for the purposes of subsection (1) above, unless the contrary is shown, that one of the parties to the void marriage reasonably believed at the time of the insemination resulting in the birth or, where there was no such insemination, the child's conception (or at the time of the celebration of the marriage if later) that the marriage was valid."
"Section 1 of the Legitimacy Act 1976, however, provides that the child of such a marriage shall be treated as legitimate if the father was domiciled in England and Wales at the time of the birth and if, at the time of conception either of the parents reasonably believed that the marriage was valid.
Therefore should [the three sisters] prove to be related as claimed they would be eligible to hold British passports on the grounds that either you, your wife or both of you reasonably believed that your marriage was valid in English law at the relevant time.
Such grounds would not, of course, exist in respect of further children born or conceived to you after receipt of this letter, because you are now aware of our view that the marriage ceremony which you went through is invalid."
Lord Justice Leveson:
Lord Justice Mummery:
Order: Appeal allowed