R MD Sanu Miah v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Alexandra Marks CBE |
| Judgment Date | 17 November 2017 |
| Neutral Citation | [2017] EWHC 2925 (Admin) |
| Docket Number | Case No: CO/6142/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 November 2017 |
[2017] EWHC 2925 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Alexandra Marks CBE
(Sitting as a Deputy High Court Judge)
Case No: CO/6142/2015
Mr Shahadoth Karim (instructed by Kalam Solicitors) for the Claimant
Mr Tom Poole (instructed by Government Legal Dept.) for the Defendant
Hearing date: 24 October 2017
INTRODUCTION
The claimant, Md Sanu Miah, seeks to challenge the decision of the Secretary of State for the Home Department ("SSHD") to remove him from the United Kingdom as an illegal entrant under Schedule 2 to the Immigration Act 1971.
(i) BACKGROUND
Mr Miah was born in Bangladesh on 23 October 1965.
His father, the late Tobarak Ali, was naturalised as a British Citizen on 1 December 1960, more than five years before Mr Miah's birth.
Tobarak Ali and Hasina Khatun, Mr Miah's parents, married on 6 March 1946, nearly 20 years before his birth.
SSHD accepts that if Mr Miah is telling the truth, he would be entitled to a Certificate of Entitlement to the Right of Abode in the United Kingdom ("Certificate of Entitlement"). Mr Poole also accepted (for example in paragraph 24 of his Skeleton Argument) that Mr Miah, if he is telling the truth about his parentage, is a British citizen within section 2(1)(a) Immigration Act 1971.
On 11 January 2001, Mr Miah was issued with a Bangladeshi passport no 0061804 ("2001 passport").
On 9 June 2002, the British High Commission in Dhaka, Bangladesh endorsed Mr Miah's 2001 passport with a Certificate of Entitlement marked "valid for presentation at a United Kingdom port within the validity of this passport".
On 26 June 2002, Mr Miah entered the United Kingdom, using his 2001 passport.
Mr Miah claimed that the endorsement was made following a successful appeal to the Immigration Tribunal, although until a couple of days before this hearing, he had not been able to produce the Tribunal's determination. However, now that Tribunal determination has been produced, it turns out to be highly significant to the outcome of these proceedings.
On 11 July 2011, following expiry of his 2001 passport, the Bangladesh High Commission in London issued Mr Miah with a new Bangladeshi passport no 1954810 ("2011 passport"). The 2011 passport does not contain any Certificate of Entitlement.
On 3 October 2011, Mr Miah applied for a British passport. After repeated requests, the Passport Office replied on 26 February 2013 and 7 March 2013 that his application was still under consideration.
The Passport Office asked Mr Miah to attend an interview on 9 October 2014, and to bring with him any original certificates relating to his birth; his father's nationality; or the marriage of his father.
Mr Miah did not attend on 9 October 2014 but a week later, on 16 October 2014, he went to East London Immigration Compliance & Enforcement, Becket House. There, he was interviewed under caution due to concerns about the validity of the Certificate of Entitlement in his 2001 passport.
That same day (16 October 2014), SSHD made a decision to remove Mr Miah from the United Kingdom. The decision, served on Mr Miah on 20 October 2014, gave the following reasons:
"You are specifically considered a person who has entered the UK without leave. This is because it has been established to a high degree of probability that you do not qualify for the Right of Abode in the UK. You have been interviewed concerning your immigration status, and have presented documents purporting to show that your father was a British Citizen when you were born. However, these documents have been shown to be unreliable, and in the case of your parents' marriage certificate, altered. You have also presented no evidence that dates from prior to 2000 that you are entitled to the Right of Abode as claimed. As you previously obtained a Certificate of Entitlement to the Right of Abode using similar documentation, and travelled to the UK using that Certificate, you are therefore considered to have entered the UK without leave."
Mr Miah challenged that removal decision by way of judicial review on 16 January 2015.
After consideration of the papers, permission was refused. However, permission was granted after an oral hearing on 18 February 2016.
THE POLICY AND LEGISLATIVE FRAMEWORK
Mr Miah contends that as his late father was a British citizen, he too is a British citizen by descent.
Mr Miah relies on s.2(1) and s.5(1) British Nationality Act 1948 ("BNA 1948") that:
"2(1) A person born outside the United Kingdom…after commencement shall be a British citizen if at the time of the birth his father or mother –
(a) is a British citizen otherwise than by descent:…"
"5(1) …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 his birth…"
Mr Miah also contends that, by virtue of s.2 of the Immigration Act 1971 (" IA 1971"), he has a right of abode in the United Kingdom. He relies on s.2 (1)(a), which reads:
"2(1) A person is under this Act to have the right of abode in the United Kingdom if –
(a) he is a British citizen;…"
Under s.3(8) IA 1971, the burden of proof of citizenship lies on Mr Miah:
"3(8) …when any question arises under this Act whether or not a person is [a British citizen]…it shall lie on the person asserting it to prove that he is."
As regards his entry into the United Kingdom in 2002, Mr Miah relies on s.3(9)(e) IA 1971:
"3(9) A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove it by means of:
…
(e) a certificate of entitlement…"
Under s.82(2)(c) of the Nationality, Immigration and Asylum Act 2002 ("NIA 2002"), refusal of a certificate of entitlement gives a right of appeal to the Tribunal.
However, apart from this right of appeal, the procedure for applying for a certificate of entitlement used to be otherwise unregulated, except as regards fees. There was no case law, and no immigration rules, to give guidance as to when and to whom a certificate of entitlement could and should be issued.
Since 2006 though, the issuing and revocation of certificates of entitlement have been governed by the Immigration (Certificate of Entitlement to the Right of Abode in the United Kingdom) Regulations 2006 ("2006 Regulations"). Regulation 6 states:
"6. A certificate of entitlement will only be issued where the appropriate authority is satisfied that the applicant –
(a) has a right of abode in the United Kingdom under section 2(1) [IA 1971]…"
By Regulation 10, a certificate of entitlement issued before the 2006 Regulations came into force ceases to have effect on the expiry of the passport or travel document to which it is affixed.
The Explanatory Memorandum accompanying the 2006 Regulations records that Regulation 10 was:
"…introduced due to concern that the lack of regulation made the process of obtaining certificates of entitlement vulnerable to fraud." (paragraph 4.2)
and that the:
"…Government was reacting to concern on the part of the officials tasked with considering applications and policing entry to the United Kingdom that the lack of regulation made the process and its outcome uniquely vulnerable to fraud." (paragraph 7.1)
The SSHD's policy in relation to right of abode at the time applicable to Mr Miah's case was set out at Chapter 57, Volume 1, Nationality Directions. Paragraph 1.4 stated:
"…the right of abode is a statutory right which a person either has or does not have, depending on whether the conditions in section 2 [IA 1971] are satisfied…No action by or on behalf of a Minister (including the issue of a passport or certificate of entitlement) can operate so as to confer the right of abode on any person who does not have it already by virtue of [IA 1971]…"
Paragraph 4.7 of that policy stated:
"4.7.1 Any person who is refused a certificate of entitlement has the right to appeal against the refusal, regardless of why the application is refused.
4.7.2 The appeal will normally be to the Asylum and Immigration Tribunal under section 82 [NIA 2002]…
4.7.3 There is no right of appeal against the revocation of a certificate of entitlement."
As regards removal, Schedule 2 IA 1971 provides:
"9 Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give…[removal] directions in respect of him …"
…
"10(2) Where the Secretary of State may give directions for a person's removal… he may instead give directions for his removal in accordance with arrangements to be made by the Secretary of State to any country or territory to which he could be removed…"
PRELIMINARY SUBMISSION – OUT-OF-COUNTRY APPEAL IS AN ADEQUATE ALTERNATIVE REMEDY
At the start of the hearing, Mr Poole sought to persuade me on behalf of SSHD that Mr Miah has an adequate alternative remedy to challenge the removal decision – namely by means of an out-of-country appeal – which should be enough to dispose of this judicial review, without the necessity to call the witnesses who had attended to give evidence and be cross-examined.
I did not accept that submission. First, I considered the authorities cited to me (relevant extracts from which are set out in paragraphs 56 to 62 below). I noted in particular Lord Justice Aikens' words in R (RK (Nepal)) v. SSHD [2009] EWCA Civ 359 (as set out in paragraph 58 below) about "special or exceptional factors" which might lead the High Court to exercise its discretion in favour of judicial review.
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