R MK (a child by her litigation friend CAE) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | C. M. G. Ockelton |
| Judgment Date | 14 June 2017 |
| Neutral Citation | [2017] EWHC 1365 (Admin) |
| Docket Number | Case No: CO/4812/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2017 |
[2017] EWHC 1365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/4812/2016
Mr A Burrett (instructed by Charles Simmons Immigration Solicitors) for the Claimant
Mr E Brown (instructed by Government Legal Department) for the Defendant
Hearing date: 28 February 2017
Judgment Approved
The Issue and the procedural history
Paragraph 3 of Schedule 2 to the British Nationality Act 1981 is as follows:
"3. (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely
(a) that he is and always has been stateless; and
(b) that on the date of the application he was under the age of twenty-two; and
(c) that he was in the united Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.
(2) A person entitled to registration under this paragraph –
(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British overseas territories;
(b) in any other case, shall be registered under it as a British overseas territories citizen."
The claimant ("C") was born in the United Kingdom on 14 November 2010. Her father ("F") and her mother ("M") are both nationals of India. On 8 March 2016 she submitted an application for registration as a British Citizen under the provisions I have just set out. On 18 May 2016 the Secretary of State refused the application. The present proceedings were begun on 17 August 2016, the last day of the succeeding three months, in the Upper Tribunal, the wrong forum. They were transferred to this Court on 14 September 2016. Sitting as a Deputy Judge, Amanda Yip QC ordered the application for permission into court for an oral hearing with consideration of the substantive claim to follow immediately if permission be granted.
In making her Order, the Deputy Judge noted that this case appears to be one of a number of similar cases and directed that the others be stayed awaiting the outcome of this claim. She also directed the parties' solicitors (by which I take it she meant the solicitors for this and the other claimants) to identify issues likely to be common to the claims. That must I think be the origin of a document before me entitled 'agreed statement of facts', which refers throughout to claimants in the plural but does not name or give file numbers for anybody except C, and is not signed as agreed by anybody. In any event, the generic issues are adequately illustrated by the present case. So far as concerns the merits, the only observation favouring the claimants that she made was that a claimant might have difficulty in meeting procedural requirements for registration adopted by the Secretary of State, requiring an applicant to prove a negative (that she had not already been registered as a national of any, or the relevant, State). This procedural issue is relevant only if it might prevent the registration of a person who would be otherwise entitled under the statute to be registered, which in turn is a question of the interpretation of the statute and its application to the facts as found by the court on the basis of the evidence.
The issue, in short, is whether C, for the purposes of paragraph 3 of Schedule 2 to the 1981 Act, 'is and always has been stateless'. That will (or may) depend on the meaning of 'stateless' in the Act, which is a matter of law. It will in addition almost certainly turn on the question whether C is (or ever has been) a national of India. That will depend wholly or largely on Indian law, which in this court is a matter of fact and needs to be proved by evidence.
Indian law
The need to prove Indian law by evidence appeared to take Mr Burrett rather by surprise. He put what he said were the relevant and up-to-date provisions of the Citizenship Act 1955 (India) before me as an authority, photocopied from some unidentified compendium of statutes (the copy incorporates some amendments to the Act and a few comments). He asked me to read, interpret, and assess the impact of the Indian legislation as though it were English legislation.
I cannot do that. The court is deemed to know the whole of English law and the relevant principles of interpretation, but it knows nothing of Indian law save as may be revealed by evidence. That is obvious if the situation were to be reversed. An Indian judge who had before him three sections of an English statute, apparently updated at some unknown stage, unaccompanied by any subordinate legislation, any decided cases, any contextual information or any material showing how the provisions impacted in practice could not be expected to form an accurate view of the relevant part of the English legal order. That is why it is normally necessary to have not merely evidence, but expert evidence, to prove foreign law.
There is no evidence in this case from anybody being put forward as an expert in Indian nationality law. What I do have is witness statements submitted by the defendant, setting out the experience of certain of her officers and the result of enquiries they have made. I understood Mr Burrett to suggest that I should not take very much notice of them – presumably either because they are not expert evidence, or because it is not for a non-lawyer to give evidence on the meaning or operation of the law, or because the meaning or operation of a statute, even an Indian statute, is not a matter for evidence. But the crucial features of the statements are not the subject of any contrary evidence. It seems to me that I am entitled to take them into account, not as a comprehensive statement of the relevant Indian law, but as evidence of its operation as observed by the makers of the statements.
So far as the Indian legislation is concerned, there is in fact agreement between the parties about its present form, and about what (if I may use the broad term) it says. The claimant seeks to leave the matter there and to draw conclusions from what it says. The defendant seeks to show that what it says is not the whole story. Although the state of the evidence on Indian law is clearly not what it might be, it is in my judgment appropriate to make findings of facts on the basis of it, and to proceed to determine this claim on the basis of those findings, for the following reasons. First, there is no dispute between the parties about the legal text to be applied: this is not, for example, a case where there is any doubt about whether there are statutory amendments that may or may not be in force and may or may not be reflected in the text before the court. Secondly, although there is no expert evidence there is evidence about the operation of the relevant provisions, which is not the subject of any counter-evidence and is not itself of a nature of which the court ought to be suspicious. It presents, as it were, what might be the 'bottom line' of an expert account, without showing the working: but where there is no proper basis for doubting the working, it is sufficient to support findings. Thirdly, given the nature of the present claim as a lead case, it may be assumed that the parties have done all they can to assemble material going to establish what the Indian law is, and it may therefore be further assumed that nothing very much better is going to be available in any other case.
Proceeding then on the basis of the material before me I find the following facts in relation to the relevant Indian law. Indian citizenship is acquired by descent, and a child born outside India after 1992 is a citizen of India by descent if either of the child's parents was at the time of his birth a citizen of India other than by descent. If, however, the birth was outside India on or after 3 December 2004 (the date of commencement of the Citizenship (Amendment) Act 2003 (India)) the child is not a citizen unless the birth is registered at an Indian consulate 'in such form and in such manner as may be prescribed'. If the registration is after the child's first birthday it needs 'the permission of the Central Government'. In either case the parents have to declare, also 'in such form and in such manner as may be prescribed', that the child does not hold the passport of any other country. There is no suggestion that citizenship is granted from the date of registration: it is obtained by the birth, provided that the birth is registered.
Guidance issued by the Indian Government provides for the use of a form for the process of registration, and an 'undertaking in writing by the parents' that the child does not hold the passport of another country. The claimants have adduced evidence that the Indian consulates in the United Kingdom will require the production of documentation that F and M do not have, for example F's passport and their marriage certificate. But there has been no investigation or any elucidation of what is actually required in an individual case. Given that citizenship can pass from the child's mother it seems highly unlikely that registration is impossible without these two particular...
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