Rubab M. Gowa and Others (Applicants v Attorney General (Respondent

This is an appeal from a decision of the Divisional Court of the Queen's Bench (Mr. Justice McCullough) on an application for judicial review brought by seven applicants who are sons and daughters of one Mohamedali Gowa, to whom I shall refer as "Mr. Gowa". The relief sought is, first, a declaration that the applicants are all citizens of the United Kingdom and Colonies. For convenience I follow the learned judge's example and abbreviate the description of that status to "CUKC". Secondly the applicants seek a mandamus to the Secretary of State for Foreign and Commonwealth Affairs directing him to recognize the status of CUKC for the applicants or grant it to them.

Mr. Gowa was born in Tanganyika (then German East Africa) in 1905. He married an Indian lady in India in 1927. He was with the Allied Forces in the war and was proud of his connection with Great Britain, though he spent most of his time in Dar-es-Salaam and Bombay.

India became independent in 1947. All the applicants were born before 1947 in Bombay. They all live in India.

Mr. Gowa, his wife and children were, in English law, British subjects at the end of 1948.

On 1st January 1949 the British Nationality Act 1948 came into force. All the sections I shall refer to are sections of that Act. It is common ground that the applicants continued to be British subjects, but the issue is whether they ever acquired, or are entitled to be granted, the status of CUKC under the Act. To resolve that issue it is necessary to examine a number of the sections and to consider how they apply to the circumstances of the applicants. Another child, Muzaffa, was born after 1st July 1949 and is not an applicant because he is admittedly a CUKC. It is of some importance to the applicants to achieve recognition as CUKCs because, although their status as British subjects is sufficient for any contacts they may have within the United Kingdom, the additional status of CUKCs would be of value to them in India.

S.12(3) provides:

"A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he was born within the territory comprised at the commencement of this Act in a protectorate, protected state or United Kingdom trust territory".

Tanganyika was a UK trust territory on 1st January 1949 so Mr. Gowa became a CUKC on that date. By virtue of s.12(5) Mrs. Gowa became a CUKC at the same time.

S.5(1) provides:

"Subject to the provisions of this section, 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 the birth". (The proviso which follows is not relevant)

It is because of this provision that Muzaffa became a CUKC.

As to the seven applicants, a means by which they could become CUKCs was provided by s.7(1) reading as follows:

"The Secretary of State may cause the minor child of any citizen of the United Kingdom and Colonies to be registered as a citizen of the United Kingdom and Colonies upon application made in the prescribed manner by a parent or guardian of the child".

S.8(1) provides as follows:

"The functions of the Secretary of State under the last two foregoing sections shall in any colony, protectorate or United Kingdom trust territory be exercised by the Governor; and those sections shall, in their application to any colony, protectorate or United Kingdom trust territory, have effect as if for references therein to the Secretary of State there were substituted references to the Governor, and as if for the reference in the first of the said sections to ordinary residence in the United Kingdom there were substituted a reference to ordinary residence in that colony, protectorate or territory as the case may be".

In January 1949 all the applicants were minors. The eldest of them was then 15 and the youngest under 3.

In September 1951 Mr. Gowa went to the Secretariat in Dares-Salaam to ask for himself, his wife and all his children to be recognised as CUKCs.

On 11th September 1951 the Member for Law and Order at the Secretariat (to whom I shall refer as "the Member") wrote to Mr. Gowa as follows:

"I am directed to refer to your interview dated 11th September, 1951 concerning your application for and on behalf of your wife your children and yourself certificate of registration under the provisions of the British Nationality Act, 1948, and to inform you that an application form may now be purchased from the Government Printer, Dar es Salaam.

"Printed instructions regarding the completion and despatch of the form are issued with it.

"The appropriate form(s) are Form(s) R.1 (two) M. (six)".

Apparently application forms were obtained, completed and sent in and on 29th September 1951 the Member wrote to Mr. Gowa as follows:

"I am directed to refer to your application to be registered as a Citizen of the United Kingdom and Colonies and to inform you that from the facts which you submitted in your application form, it appears that you and your family are already Citizens of the United Kingdom and Colonies. In your case therefore, it is not proposed to take any further action regarding your application. The application in respect of your wife however, will be dealt with in the normal way and forwarded to you in due course".

That letter was inaccurate in two respects: none of the applicants was already a CUKC but Mrs. Gowa was one. Not unnaturally Mr. Gowa took it that the applicants were all CUKCs and that no further step was necessary to obtain recognition of their status. Mrs. Gowa has since been recognised as a CUKC.

In 1952 Mr. Gowa applied to the British High Commission in Bombay for passports for all the family. In reply difficulties were raised about the wife but nothing was said about the children. In that year or later they all got passports and were described as "British Subject" or "British protected person" but none of the applicants was described as a CUKC.

In 1951 and 1953 the eldest son Asgerali, who is not one of the applicants, obtained recognition for himself as a CUKC but attempts by him in 1973 to obtain similar recognition for his brothers and sisters were unsuccessful.

In July 1979 the Foreign and Commonwealth Office recognised "Mr. Gowa's children except Muzaffa" (i.e. all the applicants) as British subjects without citizenship and Muzaffa as a CUKC. Solicitors for the applicants then, relying on what Mr. Gowa had been told in 1951, tried to persuade the Foreign and Commonwealth Office to acknowledge the legal right of the applicants to recognition as CUKCs under s.7.

On 28th September 1979 this letter was sent to the solicitors by the Foreign and Commonwealth Office: It is headed "Mr. Mohammed Gowa and Family", and reads as follows:

"Please refer to Mr. Sims' letter to you of 3 September about the above family.

"As requested in your letter of 21 August, we have given consideration to the nationality status of Mr. Gowa's children, but regret that we cannot regard them as eligible for registration as citizens of the United Kingdom and Colonies under Section 7 of the British Nationality Act 1948.

"We agree that erroneous information appears to have been given to Mr. Gowa in 1951 by the colonial administration in Dar es Salaam. Upon examining the circumstances yet again,we cannot understand why the children were then deemed to be citizens of the United Kingdom and Colonies. Nonetheless we cannot, after 28 years, take retroactive steps to rectify this position since the children are all over the age for registration under Section 7. The registration of minors under this Section is at the discretion of the Secretary of State. Such discretion is delegated to Governors of Dependent Territories under Section 8; and since the children were not registered, for whatever reason, Section 9 does not apply in their case.

"As Mr. Sims informed you in his letter of 26 July we have, after careful consideration and taking into account the earlier confusion over their birth certificates, agreed to recognise all the children except Muzaffa, who is a citizen of the United Kingdom and Colonies, as British Subjects without Citizenship by virtue of their birth in former British India.

"I regret that we cannot give you a more helpful reply".

In July 1981 the solicitors advanced further arguments under s. 13. S.13(1) provides:

"A person who was a British subject immediately before the date of the commencement of this Act and is at that date potentially a citizen of any country mentioned in subsection (3) of section one of this Act, but is not at that date a citizen of the United Kingdom and Colonies or of any country mentioned in...