R Ismath Batcha Mohamed Salih v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Andrew Henshaw
Judgment Date03 October 2018
Neutral Citation[2018] EWHC 2539 (Admin)
Date03 October 2018
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/227/2018

[2018] EWHC 2539 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Andrew Henshaw QC

(sitting as a Judge of the High Court)

Case No: CO/227/2018

The Queen on the Application of Ismath Batcha Mohamed Salih
Secretary of State for the Home Department

Pierre Georget (instructed by Sahab Solicitors) for the Claimant

Zane Malik (instructed by Government Legal Department) for the Defendant

Hearing date: 17 July 2018

Mr Andrew Henshaw QC:







(1) Documents tendered by the Claimant


(2) Authenticity and reliability of the documents


(3) The Claimant's interview in January 2017


(4) Discussion






The Claimant seeks judicial review of the Defendant's decision of 5 October 2017. By that decision, made by Her Majesty's Passport Office, the Defendant declined to issue the Claimant with a British passport. The essential issue in this case is whether or not the Claimant is a British Overseas citizen.


The Claimant is a citizen of India and holds an Indian passport. He claims to be the son of late Mohamed Salih (“ MS”) and Amena Beevi (“ AB”). The Claimant says he was born on 4 January 1958 to MS and AB, in the municipality of Kumbakonam in the Tamil Nadu State of India; that MS was a citizen of the United Kingdom and Colonies (“ CUKC”); and that the Claimant himself is therefore a British Overseas citizen.


The Claimant has made several unsuccessful applications for a British passport, in 2005, 2008, 2011 and 2012. His most recent application led to a previous judicial review claim, which was resolved by way of a consent order on 30 October 2013, which recorded the Defendant as having agreed to reconsider the Claimant's 2012 application for a British Overseas passport and return a decision, to verify the Claimant's father's birth certificate, and for the British High Commission in New Delhi to interview the Claimant further on 11 and 12 September 2013.


It does not appear that those interviews proceeded at the time, but subsequently the Claimant was interviewed on 19 January 2017. On 5 October 2017 the Defendant refused to issue him with a British passport became she was not satisfied as to his identity, entitlement and claimed relationship with a British citizen. The Defendant maintained that decision on 1 December 2017 in response to the Claimant's pre-action protocol letter.


This judicial review claim was issued on 17 January 2018. The Defendant filed an acknowledgment of service on 13 February 2018. Andrew Thomas QC, sitting as a Deputy High Court Judge, considered the matter on the papers and granted permission to apply for judicial review on 9 March 2018.



It is common ground that in order to establish that he is a British Overseas citizen, the Claimant must show that:

i) he is the son of late MS and AB;

ii) MS was a CUKC;

iii) he was born after MS became a CUKC; and

iv) MS and AB were married.


The above list follows from a combination of sections 5(1), 6(1), 8, 9 and 32 of the British Nationality Act 1948 (as enacted) relating to citizenship of the United Kingdom and Colonies. On 1 January 1983, the commencement date of the British Nationality Act 1981, all citizens of the United Kingdom and Colonies who did not automatically become British citizens (section 11) or citizens of British Dependent Territories (section 23) (later renamed “ British overseas territories”) acquired British Overseas citizenship (section 26).


British Overseas citizenship is a residual category of citizenship arising from the reclassifications in the 1981 Act. The Claimant made the point (and the Defendant did not dispute) that it would not confer on the Claimant the right of abode in the United Kingdom (or any country), and is not transmissible except in exceptional circumstances or where an individual would otherwise be stateless. The Claimant pointed out that it was held in Teh v SSHD [2018] EWHC 1586 (Admin) that a person with only British Overseas citizenship and no right of admission to any other country will be considered stateless for the purpose of paragraph 403(c) of the Immigration Rules.


Section 3(8) of the Immigration Act 1971 concerns the burden of proof and provides that:

“When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is”.


Accordingly, the Claimant has to prove that he is a British Overseas citizen.


The Court of Appeal in R (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 (Keene LJ, with whom May LJ and Arden LJ agreed) stated:

“[34] If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship …. In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it.”


In R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin), Eder J said:

“[14] … it is for the court to decide simply on the balance of probability whether or not the claimant is a British citizen and entitled to a new passport. Therefore, it seems to me that questions of rationality or irrationality do not arise … I have to consider … the evidence before me and reach a conclusion on the balance of probability on those main issues, which is whether the claimant is a British citizen and whether he is therefore entitled to a new passport on that basis.”


It was therefore common ground that it is for the court to decide for itself, applying the burden of proof set out above, whether or not the Claimant is a British Overseas citizen as he claims.


The Defendant also made reference in his skeleton argument to the statement of Burnett J (as he then was) in R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin) that:

“[17] A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. Parliament has chosen not to accord to someone in the Claimant's position a right of appeal to any court or tribunal. Before issuing a British passport to an individual the Secretary of State must be satisfied that the person concerned is entitled to it. It is common ground that it is for an applicant for a British passport to satisfy the Secretary of State of his entitlement. …”

and argued that it was plainly open to the Secretary of State to conclude that the Claimant has no entitlement to a British passport. However, as noted above, it was common ground that the underlying question of the Claimant's status is a question of fact/law for the court to decide rather than one requiring a traditional public law approach.


The defendant's general approach to the standard of proof in nationality applications is indicated in “ British citizenship: automatic acquisition” at p5:

“Standard of proof

The Immigration Appeal Tribunal in Kessori Khatun (4272) held that “the standard of proof applicable to the right of abode, whether that right be dependent on citizenship or relationship, is that of the normal balance of probabilities”.

This means that a right of abode or claim to citizenship is established if the evidence that it exists outweighs, however slightly, the evidence that it does not. Any requirement that applicants or claimants produce ‘conclusive’ evidence of their status, or establish their position ‘beyond doubt’, sets the standard too high and risks challenge in the courts. You must therefore avoid using such words and phrases.”


The documents expected to establish a claim to British Overseas citizenship are set out in “ British overseas citizens, v1.0”, published on 14 July 2017, at p6:

“Evidence to establish a claim

The following documents may be used to demonstrate that a person born before 1 January 1983 is a British overseas citizen:

• a passport, issued on or after 1 January 1983, describing the holder as a British overseas citizen or a passport, issued before 1 January 1983, describing the holder as a citizen of the UK and Colonies

• the relevant documents related to the person's, their parents', grandparents', spouse's birth, adoption, marriage, death, registration or naturalisation which establish that the person did not, on 1 January 1983, become either or both a British citizen or a British dependent territories citizen

You must also take into account any evidence already held by the Home Office. In the absence of any of the documents listed above you may consider secondary forms of evidence, providing that these can be verified and demonstrate the relevant requirements. If a relevant relationship has been established previously you would not normally need to request evidence of this again, unless there are reasons to doubt the authenticity of the evidence used.”


(1) Documents tendered by the Claimant



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