Grundy, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1986 (Admin)

[2009] EWHC 1986 (Admin)Case No CO/10660/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 19th June 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF GRUNDYClaimantv
Between
SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Claimant appeared as a litigant in person for in person for The Defendant did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE MITTING: This is a renewed application by Miss Grundy for permission to challenge the decision of the Secretary of State for Foreign and Commonwealth Affairs to decline to issue to her an English birth certificate.[2]The circumstances are very unusual. The claimant is without question a British citizen. She was born on 27th October 1944 in Ochsenhausen camp in Germany where her parents were interned by the German state. They were inhabitants of Jersey. Both were then subjects of the Crown. Under the British Nationality Act 1948, the claimant was a British subject and a British citizen under the British Nationality Act 1981.[3]It seems that those who were British subjects born in similar circumstances to the claimant were routinely issued with birth certificates by consular authorities but the position changed after the 1981 Act came into force. The Secretary of State, in his acknowledgment of service, maintains that the consular authorities, for many years, have not issued birth certificates to people in the claimant's position by virtue of the operation of the Registration of Overseas Births and Deaths Regulations 1982. Regulations 4 and 5 are cited in the summary grounds of defence. I have additionally looked at the full text of the Regulations. I have done so because it does not seem to me that regulations 4 and 5 as cited have the effect for which the Secretary of State contends. Regulation 4(1) provides that:
"In each country in which the Secretary of State has so authorised, there shall be maintained registers of births and deaths in which may be recorded the birth or death within the country of a person in respect of whom a registration officer has received an application together with the prescribed fee and is satisfied that the birth or death should properly be entered therein."
[4]What the regulation does not do is to prevent the Secretary of State from registering a birth. It may well be that, as a result of the coming into force of the 1981 Act, this procedure was thought no longer to be necessary in relation to people such as the claimant. But if that is so, then it would be the result of an administrative decision rather than of legislative prohibition. The acknowledgment of service and the summary grounds do not make clear precisely what the basis for refusing to register the claimant's birth was and is.[5]Accordingly, I adjourn this renewed application to permit the summary grounds of defence to be amended or, alternatively, for a letter to be sent to the claimant and to the Administrative Court explaining, in a way that the summary grounds at present do not, precisely what the basis for refusing to register is. It may very well be that if the reason is that an administrative decision was taken very many years ago for sound reasons, it is not now open to review. If that is the case then an explanation to the claimant would, in my view, suffice and would lead eventually to the refusal of her renewed application. But if there is no basis for it then it may be that there is some arguable ground which the claimant should have permission to pursue.[6]I reject the alternative basis upon which the Secretary of State invites me to refuse permission: delay. It is true that this claim was issued outside the maximum three month period, but if the claimant's case is right and the Secretary of State should have registered her birth then she could reiterate her claim and set time running again. It does not seem to me that good administration would be prejudiced by the admission of a late claim.[7]Nor do I reject her claim on the basis that it will produce nothing of value to her. Although, as I have acknowledged, she is without question a British citizen, I am not at present convinced that the lack of a British birth certificate is a lack of such little consequence that it should not, on that ground, be considered by the court.[8]I direct that a transcript of this judgment is provided to me for correction at public expense and that when I have corrected it, a copy should be sent to the claimant and the Secretary of State.