Fatima Omar Ali Ahmed Al Hashimi, R (on the application of) v Secretary of State for the Home Department [2026] EWCA Civ 943

[2026] EWCA Civ 943Case No CA-2026-000410
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2026] EWHC 197 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION ADMINISTRATIVE COURT
Mrs Justice Lang
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/07/2026
Before
LORD JUSTICE MOYLANLORD JUSTICE NEWEYLADY JUSTICE ANDREWS
Between
FATIMA OMAR ALI AHMED AL HASHIMIClaimant/SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/Respondent
Hugh Southey KC and Ranjiv Khubber (instructed by Coram Children’s Legal Centre) for AppellantDavid Blundell KC and Karl Laird (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 1 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 22 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The question raised by this appeal is whether the appellant, Ms Fatima Al Hashimi, can pursue her claim that the Secretary of State’s denial of her registration as a British Overseas Citizen is in breach of the European Convention on Human Rights (“the Convention”). The answer depends on whether Ms Al Hashimi is within the “jurisdiction” of the United Kingdom for the purposes of article 1 of the Convention.

Basic facts

[2]The appellant, Ms Fatima Al Hashimi, was born in the United Arab Emirates on 30 December 1981.[3]Ms Al Hashimi’s father and mother were themselves born in, respectively, Somaliland and Aden. Aden was a British colony at the time and so Ms Al Hashimi’s mother, who was born in 1958 and died in 2024, became a British Overseas Citizen and held a passport as such.[4]Ms Al Hashimi is a national of Somalia, but she has never been there. She has continued to reside in the United Arab Emirates.[5]Ms Al Hashimi has explained in a witness statement that she believes that obtaining a passport as a British Overseas Citizen would be advantageous to her in several ways. First, it would make a significant difference to her prospects of employment in the United Arab Emirates. Secondly, it would make it easier for her to travel to other countries. Thirdly, it would mean that she could seek assistance from a British consulate if she had problems in either the United Arab Emirates or any other country to which she might travel.

Some history

[6]Under section 4 of the British Nationality Act 1948 (“the 1948 Act”), subject to immaterial exceptions, a person born in a Crown Colony such as Aden after the commencement of the Act in 1949 became a citizen of the United Kingdom and Colonies. Ms Al Hashimi’s mother acquired citizenship of the United Kingdom and Colonies pursuant to this provision.[7]By section 5 of the 1948 Act, a person born after the commencement of the Act also became such a citizen “if his father is a citizen of the United Kingdom and Colonies at the time of the birth”. There was no similar provision for citizenship by descent by reason of a person’s mother being a citizen of the United Kingdom and Colonies.[8]Section 2 of the Immigration Act 1971 provided for only specified categories of citizens of the United Kingdom and Colonies to have the right of abode in the United Kingdom (for example, those who had acquired such citizenship by birth, adoption, naturalisation or registration in the United Kingdom, the Channel Islands or the Isle of Man). Ms Al Hashimi’s mother did not qualify for the right of abode under this legislation.[9]The British Nationality Act 1981 (“the 1981 Act”) provided for three categories of citizenship:
“British Citizenship”, “British Dependent Territories Citizenship” and “British Overseas Citizenship”
. Not qualifying for either of the first two, Ms Al Hashimi’s mother became a “British Overseas Citizen” pursuant to section 26 of the Act. That provided:
“Any person who was a citizen of the United Kingdom and Colonies immediately before commencement and who does not at commencement become either a British citizen or a British Dependent Territories citizen shall at commencement become a British Overseas citizen.”
[10]The 1981 Act was amended by the Nationality Immigration and Asylum Act 2002. Among other things, this inserted a new section 4C into the 1981 Act. This entitled a person to be registered as a British citizen if they satisfied each of three conditions. The first was birth before 1983. With regard to the second, found in subsection (3), it sufficed that an applicant would have become a citizen of the United Kingdom and Colonies prior to 1983 under section 5 of the 1948 Act had “assumption A” applied, and “assumption A” was, so far as relevant, that “section 5 … of … the 1948 Act … provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and … references in that provision to a father were references to the applicant’s mother”. The third condition was that “immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above”.[11]Ms Al Hashimi met the first two of these conditions but not the third. She would not have had the right of abode in the United Kingdom even if she had acquired citizenship of the United Kingdom and Colonies under section 5 of the 1948 Act.[12]The 1981 Act was further amended by the Nationality and Borders Act 2022 to address (to quote the heading to section 1 of the 2022 Act) the “[h]istorical inability of mothers to transmit citizenship”. However, the change applied only in relation to an applicant who would have become “a British Dependent Territories citizen”. It did not affect people in the position of Ms Al Hashimi.[13]In Romein v Advocate General for Scotland [2018] UKSC 6, [2018] AC 585, Lord Sumption observed in paragraph 4 that “[t]he exclusion of claims to British citizenship by descent through the female line is a curious survivor of redundant social and political priorities”.

The proceedings

[14]The Secretary of State informed Ms Al Hashimi in a letter dated 5 June 2024 that an application which she had made for registration as a British Overseas Citizen had been rejected. Ms Al Hashimi applied for judicial review of that decision on the basis that, while it accurately reflected the statute law, the provisions on which it was founded (in particular, section 4C of the 1981 Act) were “unlawfully discriminatory” as based on her mother’s gender and “as such incompatible with Article 14 [of the Convention] when read with Article 8”. Ms Al Hashimi therefore sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA 1998”).[15]Articles 8 and 14 of the Convention, on which Ms Al Hashimi relies, provide as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”[16]The matter came before Lang J on 15 January 2026. Giving judgment on 4 February 2026, Lang J concluded in paragraph 88 that “there is no jurisdiction to allow the claim under Article 14 and Article 8 [of the Convention]”. Having noted in paragraph 75 that “[t]he reach of the HRA 1998 is the same as the [Convention]” and discussed cases relating to article 1 of the Convention, Lang J said in paragraph 85:
“Applying the authorities, I have concluded that the jurisdictional threshold has not been met. The Claimant has at all times resided outside the United Kingdom and she was outside its territory when the challenged decision was made. She has no family or private life in the UK and she will not secure a right of abode even if a [British Overseas Citizen] passport were to be issued to her. The impact of the decision upon her private life - employment, visas, travel - is and always will be entirely outside the UK.”
[17]With permission from Lang J, Ms Al Hashimi now appeals against that decision. As, however, was observed by Mr Hugh Southey KC, who appeared for Ms Al Hashimi with Mr Ranjiv Khubber, the arguments advanced before us are a refinement and development of those relied on before Lang J.

Jurisdiction: principles

[18]Article 1 of the Convention is in these terms:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
[19]The scope of the Convention is thus limited to persons within the “jurisdiction” of the contracting states. Jurisdiction is a “threshold criterion”: see the decision of the European Court of Human Rights (“the ECtHR”) in Al-Skeini v United Kingdom (2001) 53 EHRR 18 (“Al-Skeini (ECtHR)”), at paragraph 130.[20]The concept of “jurisdiction” “must be considered to reflect the term’s meaning in public international law” (Agostinho v Portugal (2024) 78 EHRR SE9 (“Agostinho”), ECtHR, at paragraph 209). From that standpoint, “a State’s jurisdictional competence is primarily territorial” (MN v Belgium Application no. 3599/18, 5 March 2020 (“MN”), ECtHR, at paragraph 98). Confirmation of this “essentially territorial notion of jurisdiction” is found in the travaux préparatoires relating to the Convention, which “demonstrate that the Expert Intergovernmental Committee replaced the words ‘all persons residing within their territories’ with a reference to persons ‘within their jurisdiction’ with a view to expanding the Convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the contracting states” (Banković v United Kingdom (2007) 44 EHRR SE5 (“Banković”), ECtHR, at paragraph 61). “[A]cts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of art. 1 only in exceptional cases” (Al-Skeini (ECtHR)), at paragraph 131).[21]When deciding whether “‘exceptional circumstances’ existed which could lead to a conclusion that the State concerned was exercising extraterritorial jurisdiction in respect of the applicants”, it is necessary “to explore the nature of the link between the applicants and the respondent State and to ascertain whether the latter effectively exercised authority or control over them” (Agostinho, at paragraph 169). The ECtHR has established two main criteria for the exercise of extraterritorial jurisdiction by a State:
“effective control by the State over an area (spatial concept of jurisdiction, or jurisdiction ratione loci) and State agent authority and control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae)” (Ukraine and the Netherlands v Russia (Applications 8019/16, 43800/14 and 28525/20), 30 November 2022 (“Ukraine”), at paragraph 559). The “usual situations in the application of the ‘State agent authority and control’ criterion … presuppose some form of authority or control over the alleged victim” (Agostinho, paragraph 182). The Grand Chamber of the ECtHR said this about “State agent authority or control” in Ukraine: “566. A State Party’s jurisdiction may arise from the actions or omissions of its diplomatic or consular officials when, in their official capacity, they exercise abroad their authority in respect of that State’s nationals or their property, or where they exercise physical power and control over certain persons …. 567. The Court has also explained that a State may exercise extraterritorial jurisdiction where, with the consent or at the invitation of the government of the State concerned, it exercises via its agents or others under their command and direct supervision public powers normally to be exercised by that government …. 568. Finally, the Court’s case-law establishes that in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities within that State’s Article 1 jurisdiction ….”
So far as the last of these is concerned, the Court said that it appeared to encompass “two distinct, albeit potentially overlapping, scenarios”: “the exercise by State agents of physical power and control over the victim or the property in question” and “isolated and specific acts of violence involving an element of proximity” (Ukraine, at paragraphs 568-570).[22]As regards “the actions or omissions of its diplomatic or consular officials”, the Grand Chamber of the ECtHR had explained as follows in MN at paragraph 106:
“… a State Party’s jurisdiction may arise from the actions or omissions of its diplomatic or consular officials when, in their official capacity, they exercise abroad their authority in respect of that State’s nationals or their property (see X v. Germany, [no. 1611/62, Commission decision of 25 September 1965]; X v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and S. v. Germany, no. 10686/83, Commission decision of 5 October 1984, DR 40, p. 191), or where they exercise physical power and control over certain persons (see M. v. Denmark, [no. 17392/90, 14 October 1992, Decisions and Reports (DR) 73], p. 193).”
[23]In both MN (at paragraph 107) and HF v France (2022) 75 EHRR 31 (“HF”) (at paragraph 188), the Grand Chamber of the ECtHR noted that “specific circumstances of a procedural nature have been used to justify the application of the Convention in relation to events which occurred outside the respondent State’s territory”. In HF (at paragraph 188) the Court continued:
“In the MN and Others decision (ibid., § 123) the Court explained that the mere fact that an applicant had brought proceedings in a State Party with which he or she had no connecting tie could not suffice to establish that State’s jurisdiction over him or her. To find otherwise would amount to enshrining a near-universal application of the Convention on the basis of the unilateral choices of any individual, regardless of where in the world that individual might be, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction. However, even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of art.6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by art.1 of the Convention to secure in those proceedings respect for the rights protected by art.6. As regards a complaint under this provision, the Court considers that, once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a ‘jurisdictional link’ for the purposes of art.1 (see Markovic and Others, cited above, § 54, and MN and Others v Belgium, cited above, §§ 107 and 122).”
[24]In HF, the applicants’ daughters had travelled to Syria from France to join “Daesh” (the so-called “Islamic State in Iraq and the Levant”) and were now detained in camps in Syria. The applicants alleged that France’s refusal to repatriate their family members breached article 3 of the Convention and article 3(2) of Protocol 4 to the Convention. The Court concluded with respect to article 3 of the Convention that “the applicants cannot validly argue that the mere decision of the French authorities not to repatriate their family members has the effect of bringing them within the scope of France’s jurisdiction as regards the ill-treatment to which they are subjected in Syrian camps under Kurdish control”: see paragraph 203. In contrast, there were “special features which enable France’s jurisdiction, within the meaning of art.1 of the Convention, to be established in respect of the complaint raised under art.3 § 2 of Protocol No.4”: see paragraph 214.[25]Article 3(2) of Protocol 4 reads:
“No one shall be deprived of the right to enter the territory of the State of which he is a national.”
The Court commented in paragraph 209:
“As the parties have recognised, art.3 § 2 of Protocol No.4 inherently implies that the right guaranteed thereby will apply to the relationship between a State and its nationals when the latter are outside its territory or a territory over which it exercises effective control. If the right to enter secured by that provision were limited to nationals already in the territory of that State or under its effective control, the right would be rendered ineffective, since art.3 § 2 of Protocol No.4 would not in such cases provide any real protection of the right to enter for those who, in practical terms, most need that protection, namely individuals who wish to enter or return to the territory of their State of nationality. Both the subject matter and scope of that right imply that it should benefit a State Party’s nationals who are outside its jurisdiction. Thus, neither the wording of art.3 § 2 of Protocol No.4, nor the preparatory work in respect of that Protocol, which was informed by other sources of international law, and in particular art.12 § 4 of the ICCPR, limit the right to enter to nationals who are already within the jurisdiction of the State of nationality (see General Comment No.27, § 19, [97] above).”
That being so, the Court said, it “cannot be excluded that certain circumstances relating to the situation of individuals who wish to enter the State of which they are nationals, relying on the rights they derive from art.3 § 2 of Protocol No.4, may give rise to a jurisdictional link with that State for the purposes of art.1 of the Convention”: see paragraph 212. In the case before it, the Court considered it necessary to take into account, “in addition to the legal link between the State and its nationals”, certain “special features” relating to the situation of the camps in Syria: see paragraph 213.[26]The Grand Chamber said as regards HF in Agostinho, in paragraph 172:
“The Court considered it important to differentiate between, on the one hand, Article 3 of the Convention, in respect of which it found no jurisdiction under Article 1 of the Convention … , and, on the other hand, Article 3 § 2 of Protocol No. 4, in respect of which it established jurisdiction having regard to the very particular nature of that provision ….”
[27]HF illustrates that rights under the Convention can be “divided and tailored” (see e.g. Agostinho, at paragraph 170). In Ukraine, the Court explained in paragraph 571:
“The extent of the State’s obligations under Article 1 of the Convention is to secure to that individual the Convention rights and freedoms that are relevant to his or her situation. In this sense, therefore, the Convention rights can be divided and tailored (see Al-Skeini and Others, … § 137; and Carter [v. Russia, no. 20914/07, 21 September 2021], § 126); the rejection of that proposition in Banković and Others (… § 75) is, therefore, no longer an accurate statement of the Court’s approach under Article 1 of the Convention.”
[28]Amongst the points which emerge from the ECtHR decisions are the following: i) “the administrative control exercised by [a State] over the premises of its embassies … is not sufficient to bring every person who enters those premises within [the State’s] jurisdiction” (MN, paragraph 119); ii) “While nationality is a factor that is ordinarily taken into account as a basis for the extraterritorial exercise of jurisdiction by a State … , it cannot constitute an autonomous basis of jurisdiction” (HF, paragraph 206). This was said in HF at paragraph 199 in relation to that: “the mere reliance by the applicants on France’s operational capacity to repatriate, seen by them as the normal exercise of its nationality-based jurisdiction ratione personae as defined in public international law, or as a form of control or authority which it has wrongly failed to exercise in the case of their family members, does not suffice to constitute a special feature capable of triggering an extraterritorial jurisdictional link”; iii) “extraterritorial jurisdiction as conceived under Article 1 of the Convention requires control over the person himself or herself rather than the person’s interests as such” (Agostinho, paragraph 205); and iv) “jurisdiction cannot be established merely on the basis of the argument that the State is capable of taking a decision or action impacting the applicant’s situation abroad” (Agostinho, paragraph 199). In that connection, the Grand Chamber of the ECtHR said this in Agostinho at paragraph 184: “The Court would begin by reiterating that it has consistently rejected the idea that the fact of a decision being taken at national level which has an impact on the situation of a person abroad could in itself establish jurisdiction of the State concerned over the person. This concerns not only decisions taken by the authorities (see M. N. and Others v Belgium, cited above, §§ 112-13) but also the argument that the State is capable of taking a decision or action impacting the applicant’s situation abroad (see H. F. and Others v France, cited above, § 202)”.[29]This last point featured in MN, where the applicants contended that the refusal of the Belgian authorities to issue them with visas for which they had applied in Beirut breached the Convention. The Grand Chamber of the ECtHR concluded that the applicants were not within Belgium’s jurisdiction as regards the circumstances in respect of which they were complaining under articles 3 and 13. The Court said in paragraph 112:
“The Court accepts that in ruling on the applicants’ visa applications, the Belgian authorities took decisions concerning the conditions for entry to Belgian ‘territory’ and, in so doing, exercised a public power. In itself, however, this finding is not sufficient to bring the applicants under Belgium’s ‘territorial’ jurisdiction within the meaning of Article 1 of the Convention. The mere fact that decisions taken at national level had an impact on the situation of persons resident abroad is also not such as to establish the jurisdiction of the State concerned over those persons outside its territory ….”
Neither did the requisite jurisdictional link arise in any other way. The Court noted in this context that “the applicants have never been within Belgium’s national territory and … they do not claim to have any pre-existing ties of family or private life with that country”, that it was “not alleged before the Court that the jurisdictional link arose from any kind of control exercised by the Belgian authorities in Syrian or Lebanese territory” and that “at no time did the diplomatic agents exercise de facto control over the applicants” (paragraphs 115, 116 and 118).[30]It is also relevant to mention Genovese v Malta (2014) 58 EHRR 25 (“Genovese”). The applicant in that case had been born in Scotland to a British mother and a Maltese father. The applicant’s mother applied for him to be granted Maltese citizenship, but that was refused under section 17 of the Maltese Citizenship Act on the basis that he was an illegitimate child with a non-Maltese mother. The ECtHR held that there had been a violation of article 14 of the Convention in conjunction with article 8.[31]In S1 v Secretary of State for the Homes Department [2016] EWCA Civ 560, [2016] 3 CMLR 37 (“S1”), the appellants cited Genovese in support of their contention that they were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention when they were deprived of British citizenship. In the course of rejecting that argument, Burnett LJ, with whom Briggs and Lindblom LJJ agreed, said this about Genovese in paragraph 99:
“Jurisdiction was neither argued nor mentioned in the judgment of Genovese …. It is unclear from the judgment whether the mother and son were in Malta when the proceedings were commenced there; and anyway, given EU free movement rights, the issue may well have been academic. On any view, this case cannot qualify the clear statements of principle articulated by the Grand Chamber in Al-Skeini …. SIAC concluded that the case did not support the appellants ([22]) and, in my judgment, were right to do so.”
[32]Burnett LJ went on to consider R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, [2014] 1 WLR 2697 (“Sandiford”). There, Mrs Sandiford, a British citizen, had been sentenced to death in Indonesia. The Foreign Office was providing consular assistance and advice, but it had refused to provide funding for legal assistance. It was argued on Mrs Sandiford’s behalf that this refusal was a breach of article 6 of the Convention, but the Supreme Court concluded that she was not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention.[33]Burnett LJ said this about Sandiford in S1 at paragraph 100:
“The argument advanced on [Mrs Sandiford’s] behalf was that the British authorities had diplomatic and consular access to Mrs Sandiford pursuant to the Vienna Convention and the undoubted power to provide her with funds for legal assistance. The diplomatic and consular access flowed from her British nationality. The question was whether Mrs Sandiford was within the jurisdiction of the United Kingdom for the purposes of art.1 of the Convention. In [23] their Lordships noted, ‘However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad.’ They went on to draw a distinction with cases such as Soering v United Kingdom (A/161) (1989) 11 E.H.R.R. 439 involving surrender or removal to a third country. In [25] Lords Carnwath and Mance said that there was no exercise of authority or control over Mrs Sandiford which could bring into play the extra-territorial exception recognised in Al-Skeini … , before adding: ‘26. The United Kingdom’s diplomatic and consular agents in Indonesia have of course been active in relation to Mrs Sandiford’s predicament … But their support for her and their activity in this regard have hitherto excluded any involvement in instructing or funding lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the opposite – a decision not to undertake or exercise any relevant authority or control.’” ‘However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad.’ ‘26. The United Kingdom’s diplomatic and consular agents in Indonesia have of course been active in relation to Mrs Sandiford’s predicament … But their support for her and their activity in this regard have hitherto excluded any involvement in instructing or funding lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the opposite – a decision not to undertake or exercise any relevant authority or control.’”
[34]Burnett LJ added in paragraph 101:
“In international law states have ‘authority’ over their nationals in many respects …. But that is not the same as exercising ‘authority or control’ for the purposes of art.1 of the Convention.”
[35]Further domestic decisions are noteworthy as follows: i) In Smith v Ministry of Justice [2013] UKSC 41, [2014] AC 52, Lord Hope (with whom Lord Walker, Baroness Hale and Lord Kerr agreed) said this in paragraph 30 about paragraph 131 of the decision of the ECtHR in Al Skeini (ECtHR) (quoted in relevant part in paragraph 20 above) and paragraph 132 of that decision (in which the ECtHR said that it had “[t]o date … recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries”):
“One can take from these paragraphs two important points. First, the word ‘exceptional’ is there not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extraterritorially. It is there to make it clear that, for this purpose, the normal presumption that applies throughout the state’s territory does not apply. Secondly, the words ‘to date’ in para 132 indicate that the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extraterritorially is not closed. In Catherine Smith, para 303 Lord Collins JSC said that Banković made it clear in paras 64 and 65 that article 1 was not to be interpreted as a living instrument in accordance with changing conditions. That can no longer be regarded as an entirely accurate statement. The general principles are derived from the application to particular facts of the requirement of jurisdictional competence. The particular facts to which those principles must now be applied may be the product of circumstances that were not foreseen by the framers of the Convention. But that is no reason to disregard them if they can be shown to fall within the general principles relevant to jurisdiction under article 1”; ii) In R3 v Secretary of State for the Home Department [2023] EWCA Civ 169, Elisabeth Laing LJ noted in paragraph 103 that the decision of the House of Lords in R (Al Skeini) v Secretary of State for the Home Department [2007] UKHL 26, [2008] 1 AC 153 “decides that, even though article 1 of the [Convention] is not in Schedule 1 to the HRA [1998], domestic courts must apply decisions of the ECtHR when considering whether or not a person is within the jurisdiction for the purposes of the HRA [1998]”; and iii) In Birmingham City Council v Jones [2023] UKSC 27, [2024] AC 168, Lord Lloyd-Jones, with whom Lord Reed, Lord Hodge, Lord Sales, Lord Stephens, Lady Rose and Lord Richards agreed, said in paragraph 38: “While it is open to domestic courts to apply principles established in the Strasbourg court’s case law to novel situations, it is not the function of domestic courts to establish new principles of Convention law”
.

Nationality: principles

[36]Reflecting on “the essence of nationality – or citizenship – in its international law context”, McCloskey LJ, giving the judgment of the Court, said in Re Caoimhe Ni Chuinneagain [2022] NICA 56 at paragraph 75:
“Every State’s nationality laws are an aspect of state responsibility, a venerable doctrine of international law. Equally, the right of every sovereign state to devise its own legal rules regulating nationality has long been recognised in international law. It is the concomitant of another ancient right of sovereign states namely the right to control their borders. Recognition of this right is found in the treaty provisions establishing the League of Nations in 1937. Article 1 of the European Convention on Nationality 1997 (an unincorporated treaty) defines nationality as ‘the legal bond between a person and a State’ without elaboration. Article 3(1) recognises the right of every State to determine under its own laws who are its nationals, reflecting earlier provisions in the Hague Convention (1930).”
[37]The ECtHR said this about nationality in HF: “84. The concept of nationality was examined by the International Court of Justice in its judgment in Nottebohm ( Liechtenstein v Guatemala, judgment of 6 April 1955, ICJ Reports 1955), where it was defined as follows: ‘Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’85. The State’s personal jurisdiction abroad is exclusively related to nationality. The bond of nationality justifies the exercise by the State of its jurisdiction in respect of individuals when they are abroad, as illustrated by the principle of jurisdiction on the basis of nationality in French criminal law, known as the active personality principle ….86. In terms of rights and duties, the two key legal consequences of nationality under international law, from the State’s perspective, are the right of the State to exercise diplomatic protection for the benefit of its nationals and the duty to (re)admit them to its territory. For the individual, duties associated with being a national may include the performance of military service or the payment of taxes, while the rights include the right to enter, reside in and leave the territory of the State of nationality, the right to consular assistance and the right to vote.” ‘Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’

Ms Al Hashimi’s case in outline

[38]Mr Southey pointed out that, while “jurisdiction” within the meaning of article 1 of the Convention is primarily territorial, it is not exclusively so. Moreover, the list of circumstances in which a State exercises jurisdiction extraterritorially is not closed. What is key, Mr Southey argued, is whether, applying international law principles, a finding of jurisdiction will be inconsistent with the territorial rights of another State. In the present case, an analogy is to be found with consular access. A State is considered to exercise jurisdiction extraterritorially in relation to such matters because “treaty provisions have recognised the extra-territorial exercise of jurisdiction” (to quote the ECtHR in Banković, at paragraph 71). In a similar way, States are required to respect decisions of other States as regards nationality. That may not mean that a denial of citizenship is within the scope of the State’s jurisdiction for the purposes of every right protected by the Convention, but, as HF illustrates, such rights can be “divided and tailored”. Ms Al-Hashimi is alleging breach of article 14, in conjunction with article 8. If she could not pursue that claim in the United Kingdom, she would be unable to pursue it anywhere. That would run counter to the principle that the provisions of the Convention are to be “interpreted and applied so as to make its safeguards practical and effective” (see Soering v United Kingdom (1989) 11 EHRR 439, at paragraph 87).

Discussion

[39]“Jurisdiction” within the meaning of article 1 of the Convention is “primarily territorial” and a State will be considered to be exercising jurisdiction extraterritorially only in “exceptional” circumstances. It was explained in Smith that the list of such circumstances is “not closed” and that the word “exceptional” does not set an especially high threshold. Two main criteria have, however, been recognised: “effective control by the State over an area” and “State agent authority and control over individuals” (see paragraph 21 above). The former criterion plainly is not relevant in the present case: there is of course no question of the United Kingdom having “effective control” over the United Arab Emirates, where Ms Al Hashimi lives. As regards the latter criterion, too, there is an emphasis on control. Further, what matters in relation to that criterion is “control over the person himself or herself rather than the person’s interests as such”, and it is not enough that the State has taken, or could take, a “decision or action impacting the applicant’s situation abroad” (paragraph 28(iii) and (iv) above). Consistently with that, refusal of visa applications was held not to give rise to jurisdiction in MN.[40]The authorities referring to the conduct of diplomatic and consular officials are consistent with these principles. A State’s jurisdiction may arise when such officials “exercise abroad their authority in respect of that State’s nationals or their property” or where they “exercise physical power and control over certain persons” (see paragraphs 21 and 22 above). In contrast, “the administrative control exercised by [a State] over the premises of its embassies … is not sufficient to bring every person who enters those premises within [the State’s] jurisdiction” (paragraph 28(i) above).[41]As I have mentioned, Mr Southey sought support for his submissions in the cases concerning diplomatic and consular officials. He argued that, in the same way that “customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction” with respect to the activities of diplomatic and consular agents, States are required by international law to respect decisions of other States regarding nationality.[42]In my view, however, the authorities on diplomatic and consular officials do not assist Ms Al Hashimi. There is in the present case nothing comparable to the exercise of authority or “physical power and control” to which those authorities refer. The grant to Ms Al Hashimi of a British Overseas Citizen passport might impact on her situation and interests, but there is no question of the United Kingdom exercising any control over Ms Al Hashimi herself. While, moreover, States are recognised as entitled to devise their own rules regulating nationality, the ECtHR has explained that nationality “cannot constitute an autonomous basis of jurisdiction” (see paragraph 28(ii) above) and, in S1, Burnett LJ noted that the “authority” which States have over their nationals in international law “is not the same as exercising ‘authority or control’ for the purposes of art. 1 of the Convention”. Burnett LJ also described refusal to instruct or fund lawyers as “the opposite” of an exercise of authority or control:
“a decision not to undertake or exercise any relevant authority or control”
. Likewise, in rejecting Ms Al Hashimi’s application for registration as a British Overseas Citizen the Secretary of State did not even purport to exercise authority over Ms Al Hashimi. She did the opposite.[43]Mr Southey relied, too, on HF. As he pointed out, in that case the ECtHR held jurisdiction to be established as regards article 3(2) of Protocol 4 even though it was not in relation to article 3 of the Convention. Further, that was in large part to render article 3(2) of Protocol 4 effective. As I have mentioned, Mr Southey maintained that jurisdiction needs to be recognised in the present case to make rights protected by the Convention effective and, in particular, so that Ms Al Hashimi can pursue her discrimination claim.[44]However, HF was a very different case from the present one. As the ECtHR explained in HF, “[b]oth the subject matter and scope of [article 3(2) of Protocol 4] imply that it should benefit a State Party’s nationals who are outside its jurisdiction” (see paragraph 25 above). If the right to enter secured by article 3(2) were limited to nationals already in the territory of the State or under its effective control, “the right would be rendered ineffective, since art.3 § 2 of Protocol No.4 would not in such cases provide any real protection of the right to enter for those who, in practical terms, most need that protection, namely individuals who wish to enter or return to the territory of their State of nationality” (paragraph 25). Nothing comparable can be said about article 14 of the Convention. There is no question of that article being rendered ineffective if someone in Ms Al Hashimi’s position cannot pursue a claim founded on it. The effectiveness of article 14 would doubtless be enhanced if it were understood to be available in circumstances such as these, but there is plenty of scope for its application regardless of whether it can be invoked in a case like this one. Jurisdiction in respect of article 3(2) of Protocol 4 was established “having regard to the very particular nature of that provision” (paragraph 26). Article 14 of the Convention is not of a similarly “very particular nature”.[45]Nor does it assist Ms Al Hashimi that “circumstances of a procedural nature” can justify application of the Convention to events outside the State’s territory. As was noted in HF, a State is required to secure respect for the rights protected by article 6 of the Convention where civil proceedings are brought in its domestic Courts. The existence of such proceedings does not, though, establish jurisdiction for other purposes. The mere fact that a person has brought a claim in a State with which there is no other connecting link “could not suffice to establish that State’s jurisdiction over him or her” (see paragraph 23 above).[46]Genovese does not lend support to Ms Al Hashimi’s case, either. Burnett LJ pointed out in S1 that jurisdiction had not been argued or mentioned in Genovese, that it was not clear whether the mother and son had been in Malta and that the issue may anyway have been academic. In the circumstances, Mr Southey rightly did not place weight on the decision.[47]Mr David Blundell KC, who appeared for the Secretary of State with Mr Karl Laird, submitted that Ms Al Hashimi’s contention that what is key is whether a finding of jurisdiction will be inconsistent with the territorial rights of another State is wrong. I agree that it is not borne out by the authorities. It does not accord with the two criteria identified in paragraph 21 above or with the basis of the decisions in, for example, MN and HF. MN highlights the importance of effective exercise of authority or control over the applicant (see e.g. paragraph 113) and it does not appear to have been suggested that the grant of visas to enter Belgium would have been inconsistent with the territorial rights of any other State. As for HF, neither the acceptance of jurisdiction as regards article 3(2) nor its rejection as regards article 3 of the Convention was based on a principle that jurisdiction exists where that is consistent with the territorial rights of other States.[48]Mr Southey did not suggest that any previous decision of either the ECtHR or a Court in this jurisdiction has held jurisdiction to have been established in circumstances quite like those in the present case. While, moreover, the list of circumstances in which a State will be considered to be exercising jurisdiction extraterritorially is not closed, the principles to be derived from the ECtHR’s case law do not suggest that it would find in favour of Ms Al Hashimi in this case and “it is not the function of domestic courts to establish new principles of Convention law” (see paragraph 35(iii) above).[49]In short, I agree with Lang J that Ms Al Hashimi has not satisfied the “threshold criterion” of jurisdiction. This is not, exceptionally, a case of extraterritorial jurisdiction. Not only is Ms Al Hashimi not within the United Kingdom’s territory now, but she has never resided there. Further, while the rejection of her application for registration as a British Overseas Citizen may have an impact on her interests even though she is not in the United Kingdom, the United Kingdom has not even attempted to exercise authority or control over her. Further, the analogies which Mr Southey sought to draw with consular access and HF do not help Ms Al Hashimi. It is true that States are recognised as entitled to devise their own nationality rules, but it does not follow that decisions on such matters necessarily come within the State’s “jurisdiction” for the purposes of article 1 of the Convention.

Conclusion

[50]I would dismiss the appeal.[51]I am grateful to Newey LJ for his clear, careful and accurate exposition of the relevant principles to be derived from the authorities. I agree with him that the appeal should be dismissed for the reasons which he has given, and for this further reason. Article 14 of the Convention protects an individual from discrimination in their enjoyment of the rights and freedoms afforded by the Convention. There is nothing in HF or any other case relied on by Mr Southey which enables someone to bring a claim under article 14 when the state in question has no jurisdiction to entertain a complaint about breaches of, or disproportionate interference with, the Convention right or rights in relation to which it is alleged the complainant has suffered discrimination.[52]In this case, the claim is that Ms Al Hashimi has suffered discrimination in relation to the enjoyment of her private life under article 8; therefore, she must establish that there is jurisdiction to entertain a claim under article 8. The fatal problem is that she has never established a private life in the UK. A person whose private life has been developed, in its entirety, outside the UK, cannot claim that the UK has jurisdiction to entertain a human rights claim based on article 8 (private life), and it matters not for these purposes whether the claim is based on article 8 alone or on article 14 read together with article 8. That person has no connecting links with the UK, let alone links of a type which has been recognised as engaging extra-territorial jurisdiction. The decision of the Grand Chamber of the ECtHR in Agostinho, especially at paragraphs 188 (approving what was said in MN), 199 and 205, puts this beyond doubt.[53]I also agree.