The King (on the application of Indran Murugason) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lewis,Lady Justice Elisabeth Laing |
| Judgment Date | 16 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1336 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000009 |
[2023] EWCA Civ 1336
Lord Justice Baker
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2023-000009
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Philip Mott KC sitting as a Deputy High Court Judge
CO/16/2022
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik ZC and Arif Rehman (instructed by Lincolns) for the Appellant
William Hansen (instructed by Government Legal Department) for the Respondent
Hearing date: 9 November 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 16 November 2023.
This appeal concerns a short point of statutory interpretation. The appellant claims that he was a citizen of the United Kingdom and Colonies with a right of abode in the United Kingdom immediately before the British Nationality Act 1981 came into force. That status is significant to him because, if he is right, on the commencement of the 1981 Act he became (and continues to be) a British citizen.
The relevant facts are not in dispute and can be summarised very briefly. The appellant's father was born on 31 December 1948 in Penang. As explained in detail in the decision of the Asylum and Immigration Tribunal in AL and Other Malasia BOCs) Malaysia [2009] UKAIT 00026, Penang had been one of three areas on the Malayan peninsula which were part of a British Colony. Under the British Nationality and Status of Aliens Act 1914 the residents of Penang were therefore British subjects. That position was unaffected by the formation of the Federation of Malaya in 1948 although the residents of Penang were also granted citizenship of the new Federation. On his birth, the appellant's father was therefore a British subject. The very next day, the British Nationality Act 1948 came into force. Under s.4 of that Act, save for two exceptions which have no application to this case, every person born within the United Kingdom and Colonies after the commencement of the Act was a “citizen of the United Kingdom and Colonies by birth”. Under section 12(1)(a) of the 1948 Act, a person who had been born within the territories comprised at the commencement of the Act in the United Kingdom and was a British subject immediately before that date become a citizen of the United Kingdom and Colonies. Thus, at the age of one day, the appellant's father acquired that status.
On 31 August 1957. Malaya became independent. In most cases, upon a former British colony becoming independent, its population acquired citizenship of the new country and ceased to be citizens of the United Kingdom and Colonies. Exceptionally, however, in circumstance described in AL, supra, those residents of Penang and Malacca who were citizens of the United Kingdom and Colonies were allowed to retain that citizenship in addition to their new nationality. Accordingly, the appellant's father continued to be a citizen of the United Kingdom and Colonies by birth.
The appellant was born on 13 October 1972. Under s.5(1) of the 1948 Act, “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”. It further provided that this status, subject to certain exceptions, could descend only by one generation. The appellant was therefore born, and remains, a citizen of the United Kingdom and Colonies.
A few weeks after his birth, on 1 January 1973, the Immigration Act 1971 came into force, restricting the rights of certain citizens of the United Kingdom and Colonies to live in this country. As originally enacted (which is the provision with which this appeal is concerned), s.2(1) of that Act provided:
“A person is under this Act to have the right of abode in the United Kingdom if—
(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or
(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more; or
(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.”
The islands referred to in s.2 were the Channel Islands and the Isle of Man: s.33.
S.11(1) of the British Nationality Act 1981, which came into force on 1 January 1983) created the new status of British citizen by providing that
“… a person who immediately before commencement,
(a) was a citizen of the United Kingdom and Colonies, and
(b) had the right of abode in the United Kingdom under the Immigration Act 1971,
shall at commencement become a British citizen.”
The issue on this appeal is whether, under s.2(1) of the 1971 Act, the appellant has a right of abode in the United Kingdom and is therefore, under s.11(1) of the 1981 Act, a British citizen. This all turns on the interpretation of s.2(1)(b)(i) of the 1971 Act. There are two elements of this provision. First, the appellant must demonstrate that he is “a citizen of the United Kingdom and Colonies born to .. a parent who had that citizenship at the time of the [i.e. the appellant's] birth ….” Secondly, he must show that his parent “then [i.e. at the date of the appellant's birth] had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands”. It is not disputed that the appellant satisfies the first element. The question is whether he satisfies the second. The issue of interpretation is whether, as the appellant contends, the qualifying words “in the United Kingdom or in any of the Islands” in section 2(1)(b)(i) apply only to “registration” or, as the Secretary of State argues, they qualify all the options “birth, adoption, naturalisation or … registration”.
The procedural history leading to this appeal can be summarised as follows. The appellant's original application for a certificate of entitlement to the right of abode in the UK was declined by the Secretary of State on 14 September 2020. On a request for reconsideration the Secretary of State came to the same conclusion, on 13 February 2021. The SSHD's decision was challenged by way of judicial review. However, this claim was settled by consent when the SSHD offered to reconsider the application. On 11 October 2021, a fresh decision was issued again refusing the application. On 16 December 2021, the appellant filed a second application for judicial review. Permission to bring the application was granted on 19 July 2022 and the substantive hearing took place on 1 December 2022.
In his judgment (reported at [2022] EWHC 3160 (Admin), [2023] 1 WLR 1706), the deputy judge found in favour of the Secretary of State, for five reasons.
(1) The language of s.2(1)(b)(i) taken in isolation points clearly towards the qualifying words “in the United Kingdom or in any of the Islands” being intended to apply to all four of the options “birth, adoption, naturalisation or … registration (paragraph 18). “If Parliament had intended the qualifying words to apply only to ‘registration’, there should have been an additional (‘Oxford’) comma after ‘naturalisation’” (paragraph 15).
(2) Other provisions in the Act, in particular s.2(1)(d) and s.2(3), point towards the same construction (paragraphs 19 to 22).
(3) That construction was consistent with the analysis of Moore-Bick LJ in SSHD v Ize-Iyamu [2016] EWCA Civ 118, in particular at paragraph 6:
“Section 2(1) of the Act defined those who had the right of abode. The section has since been amended, but for present purposes it is sufficient to note that as originally enacted such persons included (i) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth in the United Kingdom or any of the Islands, (ii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself acquired it by birth in the United Kingdom or any of the Islands and (iii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself been born to a parent who ‘so had it’.”
He added (at paragraph 17)
“In order for the respondent to have acquired the right...
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