Hauradhun v Secretary of State for the Home Department [2017] EWHC 1677 (Admin)

Case No CO/1984/2016Neutral Citation Number:[2017]EWHC 1677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand London WC2A 2LLDate Thursday, 20 April 2017
B e f o r e:
HIS HONOUR JUDGE DIGHT
Between
HAURADHUNClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Professor William M Rees (instructed by Raj Law Solicitors) appeared for ClaimantMr Zane Malik (instructed by the Government Legal Department) appeared for Defendant
J U D G M E N T (Approved)
[1]HIS HONOUR JUDGE DIGHT: The claimant, who was born in Mauritius on 18 June 1979 of a father who had also been born on the island contends that she is a British citizen under the British Nationality Act 1981 via sections 11 and 14, on the grounds that her father was at all material times a citizen of the United Kingdom and Colonies, as they then were, and she is therefore a British citizen by descent. The defendant contends that by the time of the claimant's birth in 1979 her father was no longer a citizen of the United Kingdom and Colonies but had become a citizen of Mauritius after it had been granted independence on 12 March 1968, a conclusion that is contained in a letter dated 27 February 2016.[2]This application for judicial review to challenge that conclusion is brought with permission of Ms Dinah Rose QC, granted on 15 June 2016. There is in reality a single ground of challenge, namely that the defendant misconstrued the relevant legislation and misdirected herself as a matter of law.[3]The factual background is as follows: the claimant was born in Mauritius on 18 June 1979. Mauritius is an independent republic within the Commonwealth. It had originally been acquired from the French in 1814 and on the coming into force of the British Nationality Act 1948 it became part of the United Kingdom and Colonies, which status it retained until it attained independence on 12 March 1968 pursuant to section 1 of the Mauritius Independence Act 1968. It became a republic in 1992.[4]The claimant's paternal family were born in Mauritius. In 1916 the claimant's paternal grandfather, Mr Rajendrah Hauradhun, was born in Mauritius and in 1948 became a citizen of the United Kingdom and Colonies. In 1949 the claimant's father, Devdass Hauradhun, was born in Mauritius and was a citizen of the United Kingdom and Colonies at birth.[5]The claimant alleges that notwithstanding the grant of independence to Mauritius on 12 March 1968 her father did not become a citizen of Mauritius but on a proper construction of section 3(2)(b) of the Mauritius Independence Act 1968 remained a citizen of the United Kingdom and Colonies, as a result of which she herself became a citizen of the United Kingdom and Colonies by descent on her birth.[6]The claimant came to the United Kingdom as a student on 5 April 2004. After various extensions of her leave to remain she made an application to be recognised as a British citizen on 25 November 2015 which was rejected by the Secretary of State in a letter dated 27 February 2016.[7]The claimant has a complicated immigration history which is irrelevant to the question which I have to decide.[8]The sole legal issue is the proper construction of the relevant statutory framework, which seems to me to start with a consideration of the British Nationality Act 1981. Section 11 of the Act is headed "Citizens of U.K. and Colonies who are to become British citizens at commencement", and subsection (1) provides as follows:(a) was a citizen of the United Kingdom and Colonies; and(b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen." Commencement of the Act was 1 January 1983. The defendant accepts for the purposes of this application that the condition contained in subsection (1)(b) is not in issue. The question therefore was whether the claimant was a person who immediately before 1 January 1983 was a citizen of the United Kingdom and Colonies.[9]Section 14 of the Act, which is headed "Meaning of British citizen (by descent)", provides as follows in subsection (1):
"(1) For the purposes of this Act a British citizen is a British citizen 'by descent' if and only if -- (i) was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent);"
One needs therefore to look to the British Nationality Act 1948 and in particular section "4. Subject to the provisions of this section, every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth:" That is subject to exceptions which do not apply in the circumstances of this case.[10]Section 5, headed "Citizenship by descent", provides in subsection (1):
"(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:"
These provisions were in force at the date of the claimant's father's birth, and he therefore became a citizen of the United Kingdom and Colonies at the date of his birth. The question is whether, however, he still retained that status at the date of the claimant's birth in 1979.[11]The provisions of the Mauritius Independence Act 1968 (which is a Public and General Act of the United Kingdom Parliament) relevant to the issue before me provided as follows: in section(2), which is headed "Consequential modifications of British Nationality Acts", it says in subsection (2):
"(2) Except as provided by section 3 of this Act, any person who immediately before the appointed day is a citizen of the United Kingdom and Colonies shall on that day cease to be such a citizen if he becomes on that day a citizen of Mauritius."
The claimant says that particular significance is to be attached to the word "if" in that subsection and to the absence of a reference to the law of Mauritius, and that it is different to the wording of equivalent provisions contained in the Independence Acts relating to, among others, Jamaica and Nigeria, and regard should be had to the deliberately different way in which the relevant statutory provisions were framed.[12]The defendant says that this is a bad point and that nothing turns on it, that there is no material difference between the provisions contained in the Nigeria Independence Act 1960 and the Jamaica Independence Act 1962 and the Mauritius Independence Act 1968, and that one should not treat the Mauritius Independence Act 1968 any differently or construe it in a different way to the other Acts, albeit that it is framed in slightly different wording.[13]The Nigeria Independence Act 1960 provided insofar as material to this claim in subsection 2(2) as follows:(a) under the law of Nigeria he becomes on that day a citizen of Nigeria; and(b) he, his father or his father's father was born in any of the territories comprised in Nigeria." (a) under the law of Jamaica he becomes on that day a citizen of Jamaica, and (b) he, his father or his father's father was born in Jamaica." The claimant submitted that the effect of sections 2(2) of those Acts was that everyone born in those territories lost their status as citizens of the United Kingdom and Colonies on the appointed day because the relevant local law (which is directly referred to in the emphasised words in subparagraphs 2(2)(a) of each section) made them citizens of the newly-independent countries, but that in the Mauritius Independence Act 1968 there is no specific reference to the local law and that the question therefore of citizenship of Mauritius is to be determined in accordance with British law and the British statutes alone. That was an assertion which was made in the claimant's skeleton and in the initial course of submissions, but it seems to me that by the time the arguments in the cases concluded it was accepted by counsel on both sides that whether the claimant's father became a citizen of Mauritius on the appointed day was to be determined by the law of Mauritius. If that is not an accepted position I would hold that the question of whether the claimant's father on the appointed day was a citizen of Mauritius fell to be determined in accordance with Mauritian domestic law, rather than in accordance with British law which concerned British citizenship.[14]Section 20(1) of the Constitution of Mauritius in force at that appointed day provided that:
"(1) Every person who, having been born in Mauritius, is on 11th March 1968 a citizen of the United Kingdom and Colonies shall become a citizen of Mauritius on 12th March 1968."
That provision is, in my judgment, of direct relevance. The question is whether under the law of Mauritius the claimant's father became a citizen of the new state. On the face of that provision he did. One then has to look to the British statute to see whether he nevertheless retained his British citizenship.[15]The key provision relied on by the claimant in this matter is section 3 of the Mauritius Independence Act 1968, headed, "Retention of citizenship of United Kingdom and Colonies by certain citizens of Mauritius". It reads, insofar as material, as follows:(a) was born in the United Kingdom or in a colony or an associated state; [...] (a) he was born in a protectorate or protected state, or(b) his father or his father's father was so born and is or at any time was a British subject." (a) references to a colony shall be construed as not including any territory which, on the appointed day, is not a colony for the purposes of the British Nationality Act 1948 as that Act has effect on that day, and accordingly do not include Mauritius, and (b) references to a protectorate or protected state shall be construed as not including any territory which, on the appointed day, is not a protectorate or a protected state (as the case may be) for the purposes of that Act as it has effect on that day;" Therefore in accordance with section 2(2) everyone who was a citizen of the United Kingdom and Colonies would cease to be a citizen of the United Kingdom and Colonies if he became a citizen of Mauritius on 12 March 1968 unless he fell within the exceptions contained in section 3.[16]Section 3, in subsections (1) and (2), contains a number of alternative exceptions. Section 3(1) excludes a person who was born in the United Kingdom or in a colony, or was a person naturalised in the United Kingdom and Colonies, or was registered as a citizen of the United Kingdom and Colonies, or became a British subject by reason of the annexation of any territory included in a colony. The only potentially relevant provision in section 3(1) is that in (a) if the claimant's father was born in the United Kingdom - which he was not - or in a colony. Subsection (5) excludes Mauritius from the category of colonies for the purposes of this provision and therefore it is of no avail to the claimant to show that her father was for the purposes of this subsection born in Mauritius.[17]Sections 3(2)(a) and (b) contain two alternatives. The first would be of assistance to the claimant if her father was born in a protectorate or protected state, but it is accepted that that provision does not apply because Mauritius was neither a protectorate nor a protected state. The second alternative is the one relied on by the claimant, she says that her father or her father's father falls within the phrase "so born and is or at any time was a British subject."[18]The defendant accepts that the claimant's father and grandfather were British subjects. The claimant submits that the phrase "was so born and is or at any time was a British subject" in subsection 3(2)(b) means born as a citizen of the United Kingdom and Colonies. It is said that because the claimant's father was so born he remained a citizen of the United Kingdom and Colonies. In support of that construction the claimant says that the phrase "was so born and is or at any time was a British subject" is a reference back to the words "a citizen of the United Kingdom and Colonies" in the phrase, "A person shall not cease to be a citizen of the United Kingdom and Colonies under the said section 2(2) if" with which that subsection commences. In support of this contention the claimant relies on the fact that (a) and (b) are alternatives to be read disjunctively and not together. The claimant submits that a literal approach to construction takes one to the conclusion which she urges.[19]The defendant's submission is, first, that the claimant's construction of section 3(2)(b) is inconsistent with the plain language of the statute, that the use of the words "so born" is a reference back to subparagraph (a), namely to having been born in a protectorate or protected state, and not to the earlier phrase at the beginning of the subsection, "citizen of the United Kingdom and Colonies". It is submitted that if one construes it in the way submitted by the defendant it would only be if the claimant's father had been born in a protectorate or protected country such as Bahrain, Kuwait or Oman that he would have kept his citizenship; that "so born" does not refer to birth within the United Kingdom and Colonies; that the words which the claimant needs to rely on are not there; and that in any event Mauritius is excluded from the definition of colonies by subsection (5).[20]It seems to me that all of those submissions are correct. The words "so born" in section 3(2)(b) are plainly a reference back to the use of the word "born" in (a), which refers to the relevant person being born in a protectorate or protected state. It would be straining the language of the provision to construe the words "so born", as a reference back to "a citizen of the United Kingdom and Colonies", which does not in any event use the word “born” in connection with the phrase “a citizen of the United Kingdom and Colonies".[21]In my judgment the plain meaning of the subsection is that advanced by the defendant and the wording cannot be strained to reach the interpretation which the claimant seeks to place on it. Equally, I accept the submission that by virtue of subsection (5) Mauritius is excluded from the definition of colony or colonies, so that if there were a reference back to the opening words of subsection (2) and the factual situation which the claimant sought to prove was that her father was born in one of the United Kingdom "colonies", that would not avail her because by virtue of subsection (5) Mauritius is not to be included within the definition of that section, and so she would have to prove either that he was born a citizen of the United Kingdom or one of the other colonies.[22]That is very much a secondary argument. The primary conclusion which I reach is that the construction advanced by the claimant is inconsistent with the plain language of the statute which, with the greatest respect, there is no difficulty in construing. There is no reason why the section should be construed in the way that the claimant suggests. Subsections (1) and (2) contain alternatives, but each of the subsections contain similar alternatives in the sense that subsection (1) sets out four similar alternatives, subsection (2) contains two similar alternatives. Had there been intended to be an alternative exception of the sort advanced by the claimant, one would have thought that the legislature would have included a further subsection confined to the exception which the claimant suggests is there.[23]Secondly, as the defendant also submits, the construction advanced by the claimant, if correct, would lead to absurd consequences because it would mean probably (although I cannot find this as a matter of fact) that a very large part of the population of Mauritius would continue to be citizens of the United Kingdom with the various rights that that would confer on them, quite contrary to the plain legislative intention behind the Mauritius Independence Act 1968 which was that Mauritius was to become an independent state, that the people living or at least born there were to become citizens, with very limited exceptions. To hold as the claimant suggests would blow a hole in the purpose behind the policy of the Mauritius Independence Act 1968.[24]Thirdly, I also agree that the construction that is being advanced is inconsistent with the approach taken by the Court of Appeal in the relatively recent case of Ize-Iyamu v theSecretary of State for the Home Department [2016] EWCA Civ 118. Mr Ize-Iyamu was born in Nigeria in 1975 after independence, of parents who had been British subjects. The applicant sought a right of abode in the United Kingdom and the court looked at whether he had acquired this by having become a British citizen by descent. The defendant relies on this decision. The claimant says that it is not on all fours and is distinguishable on both the facts and the law because it related to Nigeria and the separate statute governing the independence of that country, and that it recognised that determination of citizenship of Nigeria was to be undertaken in accordance with the law of that newly-independent state.[25]In giving the leading judgment, Moore-Bick LJ, with whom Underhill and Beatson LJJ agreed, summarised the effect of the relevant legislative provisions. In paragraph 3 Moore-Bick LJ set out the effect of the British Nationality Act 1948; in paragraph 4 of the Nigerian Independence Act 1960; and in paragraph 8 of the British Nationality Act 1981. In paragraph 4 he said:
"4. Nigeria became independent on 1st October 1960. By section 2(2) of the Nigeria Independence Act 1960 those who had been citizens of the United Kingdom and Colonies immediately before that date ceased to have that status if under the law of Nigeria they became citizens of Nigeria on that date and they themselves or their fathers or grandfathers had been born in the territories comprised in Nigeria. Under the Constitution of Nigeria all those who had been born in the former colony and were citizens of the United Kingdom and Colonies on 30th September 1960 became citizens of Nigeria on 1st October 1960. The combined effect of these provisions was that the respondent's father ceased to be a citizen of the United Kingdom and Colonies on 1st October 1960."
In my judgment there is no material difference between that provision and the provisions which I am asked to consider in the present case.[26]Section 20(1) of the Constitution of Mauritius, which I have referred to above, was of similar effect in my judgment to the Constitution of Nigeria as set out by Moore-Bick LJ in paragraph 4 of his judgment. In paragraph 15 of his judgment, Moore-Bick LJ rejected Mr Ize-Iyamu's claim and said, under the heading "British citizenship by descent from his father":
"15. As I have already mentioned, the respondent's father became a citizen of the United Kingdom and Colonies on the coming into force of the British Nationality Act 1948, but he had been born in Nigeria and lost his status as a citizen of the United Kingdom and Colonies on 1st October 1960 when Nigeria became independent. When the respondent was born in 1975, therefore, his father was no longer a citizen of the United Kingdom and Colonies and was unable to pass that status on to him. As a result the respondent could not acquire British citizenship by descent from his father under section 11 of the 1981 Act (see paragraph 8 above)."
That reasoning applies with equal force in the present case to the present facts, albeit the constitution in question is that of Mauritius rather than Nigeria.[27]The conclusions which I have reached are also consistent in my judgment with the passage from Fransman's British Nationality Law, third edition at page 1121, cited to me by the defendant, which states that:(a) was born, naturalised or registered in a place on which independence day remained within the UK and Colonies; or(b) became a British subject by virtue of the annexation of such place. Further, sub-ss (2) and (5) provided for retention by a CUKC who (or whose father or paternal grandfather) was born in a place which on independence day remained a protectorate or Protected State." That, in my judgment, is an accurate and sufficient explanation of the provisions which I am asked to construe, and comparing the facts of the instant case to that analysis of the law it is plain in my judgment that the decision of the Secretary of State was correct.[28]When Mauritius became independent on 12 March 1968 the claimant's father lost his status as a citizen of the United Kingdom and Colonies unless he fell within section 3 of the 1968 Act. The claimant's father had been born in Mauritius and, having been a citizen of the United Kingdom and Colonies on the appointed day, became a citizen of the newly independent Mauritius under the Mauritian Constitution for the reasons I have already given. Because he did not fall within any of the exceptions under the 1968 Act, the father ceased to be a citizen of the United Kingdom and Colonies and was not such a citizen at the date of birth of the claimant, who was accordingly not a citizen of the United Kingdom and Colonies by descent.[29]The Secretary of State's view expressed in the letter of 27 February 2016 was correct. The claimant is not entitled to the relief which she seeks and the claim is dismissed.[30]MR MALIK: My Lord, I am very grateful for the judgment. My Lord, I have an application for costs. This is a case where the general principle as to costs applies. There is a costs schedule that was filed prior to the substantive hearing. It has now been updated. I have a spare copy (Handed up).

HIS HONOUR JUDGE DIGHT: Mr Rees, what do you want to say about the principle of costs?

[32]PROFESSOR REES: My Lord, I am not in a position to resist costs in the light of your very clear judgment.

HIS HONOUR JUDGE DIGHT: Thank you.

[34]PROFESSOR REES: But I am wondering whether the question of costs can be agreed between the solicitors?[35]HIS HONOUR JUDGE DIGHT: Well, I can assess them if they cannot be agreed. It is not very much. Do you have a view on quantum?[36]PROFESSOR REES: I do not. I have just been handed it now, just prior to the start of the hearing.[37]HIS HONOUR JUDGE DIGHT: Do you want me to rise for five minutes so you can have a look and take instructions?[38]PROFESSOR REES: No, my Lord, I think it basically looks reasonable and if that is your Lordship's view?[39]HIS HONOUR JUDGE DIGHT: Well, it seems to me that in the usual way the Government legal services charge-out fees are impressively low and well within the levels which, if they were commercial solicitors, would be chargeable for this sort of work.[40]PROFESSOR REES: Yes.[41]HIS HONOUR JUDGE DIGHT: Equally, Mr Malik's fees are well below the figures which the guidance in CPR Part 44 suggests are appropriate for this sort of work, and I would not be inclined to reduce the figure at all.[42]PROFESSOR REES: Okay, my Lord.

HIS HONOUR JUDGE DIGHT: I will hear you if you have --

[44]PROFESSOR REES: No, I do not have any strong arguments other than that the claimant is impecunious. We know that, and she is going to be in real difficulties paying. This was her last chance to succeed to remain here.[45]HIS HONOUR JUDGE DIGHT: Yes. I understand that.[46]PROFESSOR REES: So this is a double blow.

HIS HONOUR JUDGE DIGHT: She cannot work either?

[48]PROFESSOR REES: No.[49]HIS HONOUR JUDGE DIGHT: Yes, I understand that. All right, thank you very much. Well, in those circumstances I will dismiss the claim and order that the claimant pay the defendant's costs summarily assessed in the sum of £4,762.[50]I thank you both very much for your submissions.