R Qamar Mohamed Suleiman Hussein Nageeb Othman Hassan and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] EWHC 3308 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3162/2016 |
| Date | 12 December 2017 |
[2017] EWHC 3308 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Lang
CO/3162/2016
CO/5683/2016
APPEARANCES
Mr A Berry (instructed by Aden & Co Solicitors) appeared on behalf of the Claimants.
Mr S Singh (instructed by Government Legal Department) appeared on behalf of the Defendant.
The defendant has applied to strike out as an abuse of process some thirty-nine separate claims for judicial review of her decisions in respect of individuals who claim to be Somalis born in the former Crown colony or British protectorate of Aden, and who therefore seek either British overseas citizen passports or British citizenship.
An application to strike out a statement of case on the grounds of abuse of process may be made under CPR 3.4(2)(b). The White Book states in a note at para.3.4.3:
“ Statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings (r.3.4(2)(b))
Although the term “abuse of the court's process” is not defined in the rules or practice direction, it has been explained in another context as “using that process for a purpose or in a way significantly different from its ordinary and proper use” ( Attorney General v Barker [2001] F.L.R. 759 DC, per Lord Bingham of Cornhill, Lord Chief Justice). The categories of abuse of process are many and are not closed. The main categories which have been recognised in the case law to date are described in the following paragraphs. The court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim. The striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be ( Reckitt Benkiser (UK) Ltd v Home Pairfum Ltd) [2004] EWHC 202, February 13, 2004, unrep. (Laddie J.) (claimant's application to have defendant's counterclaim in trade mark case struck out, dismissed); see also Taylor v Nugent Care Society [2004] EWHC 302; [2004] F.S.R. 37 (claimant bringing individual action when group litigation order in place)).”
Applications to strike out claims for judicial review will only be appropriate in exceptional cases. Before a claim for judicial review can proceed, the claimant has to obtain permission. Permission will only be granted if the claimant has established an arguable claim. The permission procedure enables a defendant to make written and sometimes oral representations against the grant of permission. A defendant ought to raise any allegation of abuse of process at permission stage. The requirement for a grant permission operates as an effective filter to weed out unmeritorious cases. Where permission has been granted, a defendant ought not to try to have a second bite of the cherry by applying to strike out the claim unless the grounds for strike out have only arisen after the date upon which permission was granted. I note that in some of the claims before me, permission has already been granted by this court.
The Claimants listed in Schedule A to Andrew Baker J's order, who claim to be Somalis born in Aden, seek to challenge the Defendant's refusal to grant their applications for British overseas citizen passports.
I am grateful to Mr Singh for setting out in his skeleton argument in an appendix the basis upon which a Somali born in Aden on or before 14 th August 1968 may be a British overseas citizen and entitled to a passport accordingly.
Under s.1(1)(a) of the British Nationality and Status of Aliens Act 1914, any person born within His Majesty's dominions and allegiance was deemed to be a natural-born British subject.
Section 4 of the British Nationality Act 1948 (“the 1948 Act”) materially stated that:
“…..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.”
The term “citizen of the United Kingdom and Colonies” is commonly abbreviated to “CUKC”.
By virtue of s.12(1)(a) of the 1948 Act, a person who was a British subject immediately before the commencement of the 1948 Act became a CUKC on commencement if he was born within the territories comprised at commencement in the United Kingdom and Colonies and would have been a CUKC if section 4 of the 1948 Act had been in force at the time of his birth.
The colony of Aden was a Crown colony as at 1 st January 1949, which was the date of commencement of the 1948 Act. So from 1 st January 1949, every person born in the colony of Aden became a CUKC.
The colony of Aden became a state of Aden within the British protected Federation of South Arabia on 18 th January 1963. The former state of Aden became part of the independent state of the People's Republic of Southern Yemen (also known as South Yemen) on 30 th November 1967.
The Aden, Perim and Kuria Muria Islands Act 1967 (“the 1967 Act”) provided for the relinquishment of UK sovereignty over inter alia Aden. Paragraph 1(1) of the schedule to the 1967 Act headed “Change of citizenship” stated that:
“Except as provided by the following provisions of this Schedule, any person who, on such date as may be specified in an order made by the Secretary of State —
(a) in consequence of his connection with a territory designated by the order, possesses any such nationality or citizenship as may be specified by the order, whether he acquired that nationality or citizenship before that date or acquires it on that date, and
(b) immediately before that date is a citizen of the United Kingdom and Colonies,
shall on that date cease to be a citizen of the United Kingdom and Colonies.”
The relevant “order” referred to in the 1967 Act that was made by the Secretary of State was the British Nationality (People's Republic of Southern Yemen) Order 1968 (“the 1968 Order”), which provided that:
“For the purposes of paragraph 1 of the schedule to the Aden, Perim and Kuria Muria Islands Act 1967 (which...
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...which have “arisen after the date on which permission was granted” (see R (Suleiman) v Secretary of State for the Home Department [2017] EWHC 3308 (Admin) at §3). (3) There is a need for “procedural rigour” in judicial review, one manifestation of which is the general disinclination (thoug......