Indran Murugason v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 14 December 2022 |
| Neutral Citation | [2022] EWHC 3160 (Admin) |
| Docket Number | Case No: CO/16/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3160 (Admin)
Philip Mott KC
Sitting as a Deputy High Court Judge
Case No: CO/16/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik KC and Arif Rehman (instructed by Lincolns Solicitors) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 1 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday 14 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Philip Mott KC:
This judicial review raises a short but important question as to the proper interpretation of section 2(1) of the Immigration Act 1971, as originally enacted. For the Claimant, the significance is that it governs whether he has a right of abode in the UK.
The challenge is to a decision of the Secretary of State on 11 October 2021, maintaining her earlier decision that the Claimant has no right of abode in the United Kingdom. Permission was granted on the papers on 15 July 2022 by Richard Clayton KC, sitting as a Deputy High Court Judge.
I have been greatly assisted by concise and skilful submissions from Mr Zane Malik KC for the Claimant and from Mr William Hansen for the Defendant.
It is common ground that in a case such as this it is for this court to decide for itself whether a person has the status of a British citizen, which includes whether he has a right of abode (see Harrison v Secretary of State for the Home Department [2003] EWCA Civ 432, at paragraph [34]; and Rasul v Secretary of State for the Home Department [2017] EWHC 1306 (Admin) at paragraph [16]). In this case the relevant facts are not in dispute, so questions of burden and standard of proof do not arise.
The relevant agreed facts may be shortly summarised as follows:
i) The Claimant's father was born on 31 December 1948 in Penang. At that date Penang was one of His Majesty's dominions, and the Claimant's father was therefore deemed to be a natural-born British subject by virtue of section 1 of the British Nationality and Status of Aliens Act 1914.
ii) On 1 January 1949 the British Nationality Act 1948 came into force. It established for the first time the status of “citizen of the United Kingdom and Colonies” [‘CUKC’]. The provisions of section 12(1)(a) of the 1948 Act meant that the Claimant's father automatically became a CUKC within a day of his birth.
iii) On 31 August 1957 Malaya and other territories became independent, forming the state of Malaysia. The Claimant's father, as a resident of Penang, was allowed to retain his status as a CUKC despite independence.
iv) The Claimant was born on 13 October 1972 in Penang. By virtue of section 5(1) of the 1948 Act the Claimant became a CUKC by descent, as a result of his father's status as a CUKC at that time.
The Immigration Act 1971, which came into force on 1 January 1973, introduced the ‘right of abode’. It divided British subjects into two groups, ‘patrials’ and others. Patrials enjoyed the ‘right of abode’, which allowed them “ to live in, and to come and go into and from, the United Kingdom without let or hindrance”. Others, even if CUKCs, did not have that right, and could only “ live, work and settle in the United Kingdom by permission”. This was a change in immigration status, not citizenship or nationality. Henceforth the two were separate.
Section 2(1) of the 1971 Act, as originally enacted, provided as follows:
2 Statement of right of abode, and related amendments as to citizenship by registration
(1) A person is under this Act to have the right of abode in the United Kingdom if—
(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or
(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more; or
(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.
The British Nationality Act 1981 made further changes with effect from 1 January 1983. By section 11 those who immediately before the commencement of the Act had been CUKCs and had the right of abode under the Immigration Act 1971 became British citizens. The 1981 Act amended section 2 of the Immigration Act 1971 so that the right of abode was only granted to British citizens (the alternative route for certain Commonwealth citizens is not relevant here).
Whether the Claimant became a British citizen depends on the correct interpretation of section 2(1) of the 1971 Act, and whether it gave him the right of abode.
The submissions on behalf of the Claimant have concentrated on section 2(1)(b)(i). It is argued that the Claimant has a right of abode because—
i) he is a citizen of the United Kingdom and Colonies who was;
ii) born to a parent who had that citizenship at the time of the birth; and
iii) the parent had that citizenship by his birth.
There is no dispute that the Claimant fulfils each of these requirements. The dispute is simply whether the third requirement is accurately expressed above. Specifically, the issue is whether the qualifying words “ in the United Kingdom or in any of the Islands” in section 2(1)(b)(i) apply only to ‘ registration’ [as the Claimant submits] or qualify all the options ‘ birth, adoption, naturalisation or … registration’ [as the Defendant submits]. If the Defendant is right, the Claimant does not have a right of abode, as his father was not born in the UK (there are other ways in which a person may acquire a right of abode, but none are relied upon in this case).
Statutory interpretation
I have been referred to the recent decision of the Supreme Court in Project for the Registration of Children as British Subjects & O v Secretary of State for the Home Department [2022] UKSC 3, [2022] 2 WLR 343. The modern approach to statutory interpretation is set out in the judgment of Lord Hodge DPSC at paragraphs [29] and [30]:
“29 The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” ( R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”
30 External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and A Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.
I also note the observations of Lady Arden in her additional judgment in that case.
Having read and heard submissions from both sides I have concluded that the Defendant's submission is correct for a number of reasons.
The language of the subsection
First, a purely linguistic analysis of section 2(1)(b)(i) taken by itself suggests that, if Parliament had intended the qualifying words to apply only to ‘registration’, there should have been an additional...
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The King (on the application of Indran Murugason) v Secretary of State for the Home Department
...application was granted on 19 July 2022 and the substantive hearing took place on 1 December 2022. 9 In his judgment (reported at [2022] EWHC 3160 (Admin), [2023] 1 WLR 1706), the deputy judge found in favour of the Secretary of State, for five reasons. (1) The language of s.2(1)(b)(i) ta......