Vagh, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1841 (Admin)

Case No CO/8107/2011[2012] EWHC 1841 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue Birmingham B4 6DSDate Monday, 3rd May 2012
B e f o r e:
MR JUSTICE SINGH
Between
THE QUEEN ON THE APPLICATION OF VAGHClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ahmed (instructed by Sultan Lloyd Solicitors) appeared for ClaimantMr Najib (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T

Introduction

[1]By this claim for judicial review the claimant challenges a decision initially taken by the Secretary of State on 14th January 2010 and subsequently confirmed in decisions on 27th September 2010 and finally 2nd March 2011. In taking those decisions the Secretary of State refused the claimant's application for registration as a British citizen under section 4B of the British Nationality Act 1981.[2]Permission to bring this claim for judicial review was granted on 7th December 2011 by His Honour Judge Purle QC, sitting as a judge of the High Court.[3]It will be seen immediately that the claim could be said to have been brought out of time. However, His Honour Judge Purle extended time and no issue as to delay has been raised at the substantive hearing before me. Chronology[4]The factual chronology in this case can be summarised briefly. In a sense this case arises out of the end of Empire. The claimant was born on 10th January 1966 in Aden, which was then a British territory, in what became in 1967 South Yemen and later still merged with North Yemen into the modern State of Yemen.[5]The claimant was born to a father who it is common ground was a citizen of the United Kingdom and Colonies under the British Nationality Act 1948. It is also common ground that the claimant herself was therefore by descent a citizen of the United Kingdom and Colonies under the same Act. It is further common ground that the claimant later became a British overseas citizen when the provisions of the British Nationality Act 1981 came into force on 1st January 1983.[6]Subsequently it appears that the claimant lived in India for many years, in fact for most of her life. On 26th August 2008 she was issued with an Indian passport and on 21st April 2009 she entered the United Kingdom on a valid 6 months visitor's visa. On 6th August 2009 the claimant was issued with a British overseas passport by the authorities in the United Kingdom. It appears that as a result of conversations that she had with relatives in this country the claimant formed the view that she might be entitled to be registered as a British citizen. Accordingly on 23rd September 2009 she applied for such registration. As I have already indicated, that application was refused by the Secretary of State initially on 14th January 2010. As I have already said that refusal was upheld by the Secretary of State in two subsequent decisions, the last of which was issued on 2nd March 2011 and in a sense is the main decision under challenge in these proceedings. In the Decision Letter of 2nd March 2011 the Secretary of State, so far as material stated the following:
"The application was considered under section 4B of the British Nationality Act 1981 but was refused because we could not be satisfied that your client met the statutory requirements not to have renounced, voluntarily relinquished or lost through action or inaction any other citizenship or nationality. Ms Vagh arrived in the United Kingdom on an Indian passport and only obtained a British Overseas citizen passport on 6 August 2009 when she was in the United Kingdom. Under the terms of Indian citizenship law she is regarded as having lost Indian citizenship at the age of 18 as she held another citizenship." [I should interpose that the claimant has placed great emphasis upon that last sentence in particular:] "
However, for the purposes of consideration of applications under Section 4B ... I enclose below an extract from the Nationality Staff Instructions." There then followed a quotation from annex D to chapter 12 of the relevant staff instructions for officials within the Secretary of State's department who deal with nationality applications. Paragraph 2.4 states:
"Where it appears that an applicant has been issued with a formal document (eg a passport or certificate) describing the person as a citizen of another country, but information held about that country's nationality laws indicates that dual nationality is not permitted, it should not be assumed that the document was issued incorrectly. Instead, further enquires should be made along the lines of 2.3 above. In particular, the applicant should be asked to provide a letter from the relevant authorities confirming that: • the document concerned was issued in error, and • the applicant was at no time a citizen of that country or lost the citizenship of that country on a specific date."
I will return to the staff instructions in due course . The letter of 2nd March 2011 continues:
"Applicants are requested to provide this information with their application but we also wrote to Mrs Vagh's representatives on 30 October 2009 requesting this information but, when it was not forthcoming, the application was refused correctly in line with our procedures."
The letter then continues:
"Citizenship, and the means by which it may be acquired, is defined in the ... 1981 Act and the regulations made under it. The policy on which working practice in the UK Border Agency is based is set out in the Nationality Staff Instructions [to which I have made reference.]"
The letter continues:
"Generally applications are decided by reference to that guidance. Where individual circumstances are not precisely covered by policy guidance and there may be scope for exercising discretion, beyond that which is contained in the staff instructions, then the application will be considered according to its merits by reference to precedents, or in especially compelling cases by creating a precedent where this can be justified. Applications which are not covered by staff instruction or matched by agreed precedents or which justify the creation of a new precedent must fall for refusal."
The letter ended by saying that the Secretary of State had reviewed the consideration given to the claimant's application and was satisfied that the correct procedures were followed and that the correct decision was taken. It concluded there were no grounds for reconsideration of the application.

Material Legislation

[7]Section 4B of the 1981 Act, which is central to this case provides after amendment in 2002 as follows:
"(1)This section applies to a person who has the status of— (a) British Overseas citizen... (2) A person to whom this section applies shall be entitled to be registered as a British citizen if— (a) he applies for registration under this section (b) the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and (c) the Secretary of State is satisfied that the person has not after [the relevant day] renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality. (3) For the purposes of subsection (2)(c), the 'relevant day' means... (b) in any other case, 4th July 2002.]"
[8]It will be seen immediately from the terms of section 4B that each of the criteria in subsection (2) must be satisfied but that if they are satisfied then there is an entitlement on the part of an applicant to be registered as a British citizen. Furthermore, the criterion which needs to be satisfied under paragraph b is one which depends upon the judgment of the Secretary of State as to a question of fact, namely whether the person concerned has, apart from the status mentioned in subsection (1), any other citizenship or nationality.[9]While it is well established that the formulation of paragraph (b) namely "the Secretary of State is satisfied that ..." does not in any way immunise the Secretary of State's judgment from the judicial review, nevertheless, it is also well established and was common ground before me that the judgment as to that question of fact is primarily one for the Secretary of State and can only be corrected by way of judicial review on the ground of irrationality.[10]On behalf of the claimant it has been succinctly submitted that on the undisputed facts before the Secretary of State that there was only one conclusion to which she could rationally and lawfully come, namely that the claimant is indeed entitled to be registered as a British citizen under section 4B of the 1981 Act. The Claimant's Primary Argument[11]The claimant's primary argument is as follows. First, there is no dispute that the claimant acquired the status of a citizen of the United Kingdom and Colonies by descent as from the date of her birth and that subsequently she became a British overseas citizen. Secondly, there is no dispute, it is submitted, that the claimant is regarded by the Secretary of State as having lost her Indian citizenship at the age of 18; in other words in 1984. As I have already said, for that purpose particular reliance is placed upon the following sentence in the letter of 2nd March 2011, which I have already quoted:
"Under the terms of the Indian citizenship law she is regarded as having lost Indian citizenship at the age of 18 as she held another citizenship."
[12]It is also submitted, again without dispute, that the claimant was issued and properly issued with a British overseas citizen passport in 2009. Accordingly it is said that there is no other reasonable conclusion open to the Secretary of State than to accept that all of the criteria in section 4B(2) of the 1981 Act have been satisfied and that no reasonable Secretary of State could reach any different conclusion.[13]However, I accept the submission made on behalf of the defendant that one cannot simply take a sentence upon which emphasis has been placed in the letter of 2nd March 2011 in isolation. The very next sentence in the same letter begins with the word "however". As I have said, attention was then drawn in that letter to the Nationality Staff Instructions, in particular paragraph 2.4 of the annex to which I have already referred. Reference has also been made before me to other provisions in the staff instructions to which it is convenient to turn now. Still within annex D to chapter 12 at paragraph 2.7, the topic of an applicant's Indian origin is specifically addressed. Paragraph 2.7.1 reads:
"Indian citizenship law does not, in general, allow for dual nationality. The only exception to this is for children who are dual nationals by birth. However even minors who are dual nationals by birth will automatically lose Indian citizenship if they acquire a passport in their other nationality."
Paragraph 2.7.2 indicates that more information about Indian citizenship law can be found in annex H to chapter 14 of the Staff Instructions. Annex H to chapter 14 begins at paragraph 1, by stating that:
"The following summary of the main provisions of Indian citizenship law reflects the provisions of Indian citizenship law and statements made by the Ministry of Home Affairs, India by letter to the Foreign and Commonwealth Office on 27 January 2006."
In words that I would wish to emphasise, paragraph 1 continues:
"It does not aim to be, nor should be taken as, definitive. Only the Indian authorities can provide definitive advice on their citizenship law. However, the information should normally be sufficient to determine an applicant’s eligibility for British nationality where this turns on his/her possession, or not, of Indian citizenship."
Paragraph 2 notes that the principal legislation in India, which governs nationality is The Citizenship Act 1955 as amended in 1986, 1992 and 2003.[14]Section 6 of annex H deals with the subject of dual nationality. Paragraph 6.1 reads:
"Our understanding is that Indian citizenship cannot normally be held in combination with any other citizenship. Section 9 of the 1955 Act provides that 'any citizen of India who by naturalisation, registration or otherwise voluntarily acquires.....the citizenship of another country..... shall, upon such acquisition,..... cease to be a citizen of India'."
Paragraph 6.2 reads:
"This means that no adult (18 and over) can hold Indian citizenship in conjunction with any other nationality or citizenship - but see 6.6 below."
Paragraph 6.6 can be interposed here and reads:
"If, despite the prohibition on dual nationality, an applicant has been issued with a passport or other formal document describing him as an Indian citizen, it should not be assumed that it has been issued incorrectly. In such cases, we should write to the applicant/agent along the lines explained in paragraph 4.5 of Annex D."
Paragraph 6.4 of annex H reads:
"The only exception to this general ban on dual citizenship is where a child is a dual national by birth. In such cases that child can remain a dual citizen until either: a. they obtain a passport in their other citizenship (while under the age of 18); or b. they reach the age of majority (18)."
Paragraph 6.5 reads:
"If a child who is a dual national by birth fails to renounce their other citizenship prior to reaching the age of majority or acquires a passport in their other nationality before reaching the age of 18 they will lose Indian citizenship."
[15]Reliance has also been placed on behalf of the claimant at the hearing before me upon several documents which have been issued by the Indian authorities. In particular, my attention has been drawn to a letter from the Indian High Commission in London to the Nationality Division of the Home Office, dated 28th October 2003, which enclosed a copy of a note verbale dated the 28th May 2003 by the Ministry of External Affairs in New Delhi to the British High Commission. That note verbale, so far as material states:
"It is understood that the esteemed High Commission is insisting on production of non-citizenship certificates from the Government of India. In this regard, the Ministry of Home Affairs has requested this Ministry to convey to the esteemed High Commission that a foreigner, who is staying in India on a valid foreign passport and visa cannot be a citizen of India at the same time, as dual citizenship is not permitted by the Government in India so far. Likewise, a citizen of India who acquires foreign citizenship automatically ceases to be a citizen of India under Section 9(1) of the Citizenship Act, 1955..."
[16]I accept the submissions which have been made before me on behalf of the defendant that great care needs to be taken in construing that note verbale. In particular, it can be observed that by its own terms the note refers in the first instance to "a foreigner who is staying in India on a valid foreign passport and visa." That was not relevant to this claimant's case.[17]The other instance which is given, is that of a citizen of India who acquires foreign citizenship and it is stated that he or she will automatically cease to be a citizen of India. Care needs to be taken because, as has already been seen, the express terms of section 9 of The Citizenship Act 1955 of India do not necessarily refer to all cases. In particular that section refers to cases where a person voluntarily acquires a foreign citizenship.[18]Reliance was also placed at the hearing before me on behalf of the claimant on a letter dated 7th March 2006 by the nationality directorate (as it then was) of the Home Office to a firm of solicitors. It should be observed immediately, as the defendant has pointed out to me, that this letter was addressed not in the context of this claimant's case but in the context of another anonymised case, to another firm of solicitors. The letter so far as material reads:
"Following advice from the Indian High Commission it is now accepted that Indian citizenship is lost at the age of 18, if any other nationality has not been renounced."
[19]Quite apart from the care which needs to be taken in reading such documents, there is a more fundamental submission which the defendant has made and which I accept. The defendant submits that she is not bound simply to accept assertions by an applicant for British citizenship that he or she is not in truth a national of another state, when for example they have come to this country using an apparently lawful and properly issued passport of that country.[20]In that context the defendant places particular reliance upon the judgment of Sales J in R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422 (Admin), a judgment which was given on 14th February 2012. The context of that decision was admittedly different. It arose in the context of immigration law. In particular, the question was whether the Secretary of State was entitled to certify the case under section 94 of the Nationality Immigration and Asylum Act 2002.[21]However, in the context of those proceedings the court did have to consider the approach to be taken to disputed issues of foreign nationality. At paragraph 36, Sales J said:
"Where the question of nationality arises as a matter which has to be assessed by the authorities in the United Kingdom, it is for those authorities to assess the position on the evidence available to them. So, for example, the position in an English domestic court or tribunal, if asked to consider when whether a person is or is not a national of some other State, would be to assess that question by reference to the law of that State, but making its own findings of relevant fact. Thus, where there is an issue between the Secretary of State and a person claiming refugee status, whether that person is a national of some other State, the issue is to be resolved between the Secretary of State and that person (if necessary in legal proceedings) on the balance of probabilities by reference to the relevant national law of the State in question."
At paragraph 38 Sales J continued:
"In the present context, it was accepted by Miss Kiai that the standard of proof for establishing questions of nationality and whether there is a prospect of return to the country of origin is on the balance of probabilities. She also accepted that, in the first place at least, the legal burden would lie with the claimant to establish that she had a nationality contrary to what appeared to be her nationality by reference to her passport or that she was stateless; although Miss Kiai submitted that the burden would shift to the Secretary of State with the submission by an individual of credible documentary evidence to support such a claim."
At paragraph 44 Sales J said:
"I add some comments in the light of further submissions made to me. Miss Kiai referred me to the recent judgment of the Divisional Court in R (Vullnet Mucelli) v Secretary of State for the Home Department [2012] EWHC 95 (Admin), and in particular paragraph [50] of the judgment, where it was pointed out that ordinarily where an issue is to be raised in relation to foreign law, expert evidence would be required to be adduced. Nonetheless, the Secretary of State was entitled, when certifying the claimant's claims as clearly unfounded in her decision on 3rd February 2011, to proceed on the basis of the evidential material which was before her. All the indications from the evidence obtained from or put forward by the claimant were to the effect that she was a South African national."
At paragraph 45 Sales J said:
"If, notwithstanding the background of the claimant holding a South African passport and her dealings with the South African authorities in relation to obtaining travel documents, she wished to assert that, contrary to appearances, she was not a South African national, the onus clearly was upon her to adduce relevant evidence (including, so far as appropriate, expert evidence in relation to South African law). She attempted to adduce some evidence about foreign law (though not proper expert evidence) in relation to the legal position in South Africa and Zimbabwe with her letter of 26th November 2010, but such materials as she did then put forward were clearly insufficient to displace the clear picture which had emerged from everything else she had said and done to give the clear impression that she is indeed a South African national."
The decision of the Divisional Court, to which Sales J made reference in that case was R (on the application of R (Vullnet Mucelli) v Secretary of State for the Home Department [2012] EWHC 95 (Admin), a judgment which was given on 27th January 2012. The main judgment was given by Cranston J, with whom Toulson LJ agreed. In the context of extradition proceedings at paragraph 50 Cranston J said:
"At the outset I underline the point my Lord, Toulson LJ, made in the course of argument: the court's assessment of Albanian law and practice must turn on an evaluation of the expert evidence. Toulson LJ drew on his experience in the Commercial Court, where English lawyers were sometimes tempted to offer their own interpretation of foreign law. There, as here, that temptation must be resisted. The obvious reason is that neither the English lawyer nor the English court can have a full understanding of the context of foreign constitutional and statutory instruments or judicial decisions. The experts have that understanding. Their views may be in conflict and the court may have to reconcile them but not primarily through its own interpretation of the foreign law materials."
[22]I accept the thrust of the submissions which have been made by the defendant, in particular on the basis of those authorities. I would add to the points that emerge from those authorities, something which I have already emphasised; that is that the question which the Secretary of State was called upon to ask and answer in the present context by section 4B(2)(b) is essentially a question of fact on which the primary judgment must be, as is common ground, that of the Secretary of State. As is common ground, that judgment by the Secretary of State on that question of fact can only be impugned by way of judicial review if her view of the facts was irrational, in other words one which no reasonable Secretary of State could reach on the evidence before her, if she were properly directing herself.[23]In my judgment it is quite impossible to say that the defendant's assessment of the facts in the present case was irrational. She was entitled, in my view, to place reliance as she did upon the rebuttable presumption, not an absolute one, that an explanation needs to be given as to how and why the claimant was able, apparently lawfully, to travel on an Indian passport. The fact that she had that Indian passport is something the Secretary of State is prima facie entitled to regard as being evidence that the claimant has Indian nationality. As has been pointed out on behalf of the defendant, the current application form for an Indian passport, includes, as one would expect, a question to be answered to the effect: are you a citizen of India by birth, descent, registration or naturalisation? The answer, it would seem, has to include not only that the person is indeed a citizen of India but by what means they have acquired that citizenship.[24]On behalf of the claimant it has been submitted that the claimant was a citizen of India at the time of her birth by descent from her mother. But quite apart from the evidential difficulties that the claimant faces, for it is not at all clear on the evidence before the court that that is so, as the defendant points out there is this difficulty. On the face of it Indian citizenship law would appear not to have permitted such acquisition of citizenship through the maternal line in 1966, which is the date of the claimant's birth.[25]Section 4 of The Citizenship Act 1955 of India provides that:
"(1) A person born outside India... (a) on or after the 26th January, 1950, [that is the date on which the constitution of Republic of India came into force but before the commencement of the Citizenship Amendment Act 1992] shall been a citizen of India by descent if his father is a citizen of India at the time of his birth; or (b) on or after such commencement [in other words after the commencement of the 1992 Amendment Act] shall be a citizen of India by descent if either of his parents is a citizen of India at the time of his birth."
It will be seen that on the face of it those provisions would appear to have distinguished between descent through the paternal line which was available from 1950 through to 1992 and descent through the maternal line which has not available before the 1992 Amendment Act came into force.[26]As I have already indicated, the defendant is entitled to make a much more fundamental submission, which I accept, that it is simply not for the courts of this country to engage in their own interpretation of and possibly speculation about the meaning of Indian nationality and constitutional law. As was said in the Mucelli judgment to which I have made reference, such questions of foreign law are questions which need to be addressed by evidence including expert evidence and the courts of this country, who are not well versed in the nuances of the relevant foreign constitutional and statutory instruments should not embark upon their own interpretation and analysis of those instruments.[27]The Secretary of State, in my judgment, was perfectly entitled to take the view that the apparent and lawful acquisition by the claimant of Indian nationality, at some point, perhaps it may be through marriage or long residence in India, which led to her travelling on an Indian passport to this country called for cogent explanation by and on behalf of the claimant.[28]It was perfectly reasonable, in my view, for the Secretary of State to take the view that, particularly having regard to the natural comity between nations which one expects in this context to expect a letter or some other written evidence from the Indian authorities, clearly explaining whether, for example, the issuing of an Indian passport to the claimant had simply been a mistake.[29]As has been submitted on behalf of the defendant, no such written or similar evidence has been adduced on behalf of the claimant, nor has any expert evidence been placed before the Secretary of State.[30]In those circumstances, in my judgment it cannot possibly be said that the conclusion to which the Secretary of State came, in the decisions which are challenged in the present claim for judicial review was irrational. I therefore reject the primary argument advanced on behalf of the claimant. The Claimant's Subsidiary Argument[31]The claimant's subsidiary argument is that if the court rejects her primary argument, that will lead to an interpretation of the provisions of section 4B of the 1981 Act, which on its face is incompatible with her rights under the Human Rights Act 1998. It is submitted that such an interpretation should be avoided if it is possible to do so, because of the strong interpretative obligation in section 3 of the Human Rights Act. Alternatively it is submitted that if such an interpretation is impossible, the court should make a declaration of incompatibility under section 4 of the Human Rights Act.[32]The essential submission on behalf of the claimant as to why the interpretation which I have favoured so far is incompatible with the claimant's Convention rights is that section 4B on that interpretation does not cater for registration as a British citizen, of a person who has dual nationality; in other words, the nationality of another State as well as British overseas citizenship.[33]It is submitted on behalf of the claimant that that is contrary to Article 8 read with Article 14 of the Convention rights. It is said that there is discrimination on the ground of nationality, or some other status because, someone who is a dual national, who will not be able to be registered as a British citizen, or someone who only has British overseas citizenship is so entitled.[34]I accept the submissions which have been made on behalf of the defendant in this respect also. The first obstacle in the claimant's way is that it is difficult to see how the present case can be brought within the ambit of Article 8 of the Convention rights at all. As is well-known, although a breach of Article 14 can be established even though there is no breach of another Convention right, Article 14 is not freestanding. This means that before it can be invoked by a claimant, he or she has to be able to bring the facts of the case within the ambit of another Convention right. In my judgment it is difficult, if not impossible, to see how the present case can be brought within the ambit of Article 8, which protects in particular, so far as relevant, the right to respect for private and family life.[35]In any event, in my judgment, there is another more fundamental obstacle in the claimant's way: Article 14 does not prohibit all distinctions or differences of treatment, even on grounds which are, on the face of it, prohibited under its expressed or implied terms. It is certainly well established that differences of treatment on grounds of nationality can in principle be incompatible with Article 14. But a difference of treatment is not necessarily discriminatory or unlawful under Article 14, it all depends on whether the difference of treatment is objectively justified and proportionate. It must have a legitimate aim and there must be a reasonable relationship of proportionality between the means chosen by a State and the aim in view.[36]In the present context it seems to me that the fundamental starting point must be that it is an aspect of the sovereignty of a State to determine who may and who may not be a citizen of that State. It is clear to me that the difference of treatment of which the claimant complains in the present context is objectively justified and does bear a reasonable relationship of proportionality between the end in view and the means chosen by Parliament. As was pointed out on behalf of the claimant, the background to the amendment of the 1981 Act in 2002 was to correct what was perceived by Parliament to be "an historical wrong" - see Entry Clearance Officer Mumbai v NH India [2007] EWCA Civ 1330, in which the main judgment for the Court of Appeal was given by Sedley LJ, at paragraphs 6 and 35. At paragraph 35 Sedley LJ said so far as material:
"We accept the appellant's arguments that part of the reason behind the passing of section 12 of the Act was to 'right a historical wrong'."
[37]The "historical wrong" that was referred to in that context was that the Commonwealth Immigration Act 1968 had deprived certain citizens of the United Kingdom and Colonies of the right to abode in the UK which they otherwise would have had. This was subsequently found in 1973 by the European Commission on Human Rights in the famous East Africa Asians case 3 EHRR 76 to be racially discriminatory. The Court of Human Rights never had to consider that case because a friendly settlement was reached under the Convention. As a result of that settlement the UK government embarked upon a special quota voucher scheme for many years. That scheme did not necessarily assist claimants such as the ones who were before the Court of Appeal in the case of NH India.[38]British overseas citizens, a category which was created by the 1981 Act did not have the right of abode in the United Kingdom. Nevertheless, circumstances could arise in which they might be in effect Stateless because no other State in the world was prepared to regard itself as being their State of nationality and would not allow them to live there either.[39]It was that historical wrong which Parliament felt the need to correct in 2002. But in my judgment there is a fundamental difference between a person who has no other nationality and therefore can, as it were, upgrade their British overseas citizenship to full British citizenship under section 4B of the 1981 Act and a person who has another nationality; in other words a dual national. A dual national can by definition turn to another State in the world to seek the normal incidents of citizenship, for example, the right to live in that country and the right to its diplomatic protection and so forth. For those reasons, in my view, it is clear that Parliament had an objective and reasonable basis for distinguishing between cases of dual nationality and cases where a person only has, for relevant purposes, British overseas citizenship. There is therefore no incompatibility, in my judgment, between the interpretation of section 4B, which is naturally to be given to it and the provisions of Article 14 of the Convention, even if they can properly be invoked in this case.[40]For all the reasons which I have given, this claim for judicial review is dismissed.[41]MR NAJIB: I am grateful my Lord. My Lord I would ask the usual order for costs against the claimant. I am not sure what the claimant's money position is but I would ask for costs and then the normal order if she is publicly funded.

MR JUSTICE SINGH: Shall I hear what you say about that?

[43]MR AHMED: Yes my Lord. The claimant is publicly funded and the normal order I would seek would be assessment of the claimant's costs.[44]I would also at this juncture seek permission to appeal.[45]MR JUSTICE SINGH: Can I just make it clear that I will make the usual order as to costs in a legal aid case including detailed assessment for your public funding.[46]MR AHMED: Yes my Lord.[47]Basically the principal grounds on which permission is sought: there has not been any dispute between the parties, as common ground as your Lordship quite rightly put it, by the respondent, that in fact dual nationality is not admissible, which is a common ground. It is also the case that the respondent accepts that the claimant was a UK citizen from birth and therefore retained that status which was not denounced at any time, and we would submit common ground in assessing the application that in fact the claimant lost any Indian citizenship she had when she turned 18 because she had the presumably... Those, in my respectful submission, are arguable grounds, is a case of some importance in that respect. I seek permission on that ground.[48]The compatibility argument my Lord, I will be repeating myself. I think the point in essence is whether in fact the claimant's position is indeed that she send up an Indian passport she was not a national. We would submit as a British overseas citizen that the provisions, as the Secretary of State is actually more as they stand, are incompatible with Article 8 and Article 14. On those two grounds my Lord, I seek your permission.

MR JUSTICE SINGH: I see.

[50]I am going to refuse permission to appeal. In my view there is no real prospect of success in any such appeal or any other compelling reason why the Court of Appeal should consider this case.[51]MR AHMED: My Lord, if I may have a moment? (Pause) My Lord I am not sure whether you are in a position to make any observations. If obviously the claimant is able to appoint any fresh evidence in terms of correspondence from the authorities or any expert evidence, that obviously is a matter which the Secretary of State may have to re-look at in a future date.[52]MR NAJIB: That would follow naturally.[53]MR JUSTICE SINGH: I have said what I had to say on the current application. I do not anticipate what may happen in the future. Thank you very much.

Cited in 1 later judgment