Harrison v Secretary of State for the Home Department

LORD JUSTICE MAY: I will ask Keene LJ to give the first judgment.

LORD JUSTICE KEENE: This is an appeal from the refusal by Sir Richard Tucker, sitting as a judge of the Administrative Court, of permission to seek judicial review of a letter dated 18th January 2002 written by the Minister of State at the Home Office. The appeal concerns Article 6 of the European Convention on Human Rights and issues of British citizenship. The appellant, Mr Peter Harrison, had written to his Member of Parliament asserting that he was eligible for British citizenship and asking that the issue be raised with the Home Office. His letter was duly sent on to the Minister. It produced a negative reply.

The appellant was born in New Zealand in 1946. He first arrived in this country in 1969. He made thereafter a number of applications for British citizenship, including one in 1993 seeking citizenship on the basis of naturalisation. It is unnecessary to describe in greater detail than that the background to this appeal.

In 2001 the appellant swore an affidavit in which he stated (amongst other things) that:

If the appellant's father had indeed been born on such a vessel, then the father would initially have been a British subject, and then, once the British Nationality Act 1948 ("the 1948 Act") had come into effect, a citizen of the United Kingdom and Colonies ("CUKC").

By virtue of section 12 of the 1948 Act the appellant would also have become a citizen of the United Kingdom and Colonies on 1st January 1949. As the Minister's letter accepted, the appellant would in due course then have become a British citizen under section 11(1) of the British Nationality Act 1981 ("the 1981 Act").

The position was summarised in the Minister's letter as follows:

I would add that there is in existence a copy of a birth certificate relating to the appellant's father. It comprises an entry on 1st February 1898 in the Registry of Births, Deaths and Marriages for the State of South Australia, District of Adelaide. It shows Mr Charles Harrison as born on 28th December 1897 at Mary Street. It is, on the face of it, clearly inconsistent with the appellant's claim that his father was born on board ship en-route to the Antipodes. Indeed, prior to his affidavit in 2001, the appellant had on a number of occasions described his father's place of birth as Australia or South Australia, as the letter from the Minister indicates.

The claim for judicial review sought an order directing the Minister of State to accept the appellant's affidavit in respect of the circumstances of his father's birth or to reconsider his application for citizenship. The claim also sought to set up an independent tribunal to review disputed claims to British citizenship, it being contended that this is necessary to ensure compliance with Article 6 of the European Convention on Human Rights ("ECHR").

At first instance, Sir Richard Tucker held that the Minister was fully entitled to conclude that the assertion that the appellant's father was born on board a British ship was unfounded. As for the argument that the Secretary of State was in breach of his obligations under Article 6, the judge concluded that in citizenship cases, as in immigration cases, Article 6 was not engaged.

The appellant's application for permission to appeal to this court came before Chadwick LJ, who rejected any ground of appeal alleging that the Secretary of State had made a perverse decision or should have concluded that the appellant's father had been born on a British-registered ship. However, permission was granted limited to the argument that the right to be recognised as a citizen is a civil right within the scope of Article 6. That, therefore, is the only ground of appeal for which permission has been granted. Chadwick LJ was impressed by the submission that applications for citizenship by those with the right of residence in the United Kingdom are applications for recognition of a civil right, and are fundamentally different from applications by those who have no right to be in the United Kingdom but who seek leave to enter or leave to remain. The judge also took into account the fact that there is an established appeal procedure in immigration cases but no such mechanism in citizenship cases. It was contended before him that only judicial review could be used to challenge the Secretary of State's conclusion.

Insofar as relevant for present purposes, Article 6(1) of the ECHR provides as follows:

In considering this issue, it is necessary to set out the statutory provisions relevant to the present appeal. I begin with the 1948 Act.

Section 32(5) of that Act provides:

With that in mind, one turns to section 12(1) to consider the position of the appellant's father if he were born on board a British-registered ship. The relevant part of that subsection states:

Section 4 there referred to provides that, with certain exceptions not relevant for present purposes:

The appellant's own position under the 1948 Act would then have been established by section 12(2). That provides as follows:

All of this is relevant because the principal statute now dealing with citizenship, the 1981 Act, states that:

The right of abode was lost by various groups of CUKC's between 1962 and 1981, but there is no dispute that this appellant would have had a right of abode under the Immigration Act 1971 if his father had been born on a British-registered ship. So the end result of those provisions is that, if the facts are as the appellant asserts them to be in his affidavit, he has under these Acts of Parliament a right to British citizenship; indeed, as a matter of law he has that status.

The appellant contends that such a right is a civil right within the meaning of Article 6(1). Mr Richmond, who has greatly assisted the court today by appearing pro bono on behalf of the appellant, argues that previous decisions in Strasbourg and in the English courts on Article 6(1) have been concerned with aliens rather than with those who are alleging that they are entitled to citizenship. Strasbourg has emphasised that separate provision was made in respect of the expulsion of aliens by Protocol No.7 Article 1 to the Convention, thus showing that proceedings of that kind were not intended to be included within Article 6(1). Nothing of that sort operates in respect of citizens. Mr Richmond contrasts the appeal procedures existing for asylum seekers and other aliens seeking entry into the United Kingdom with the absence of any such procedures for those in the position of his client. That is said to be grossly unfair. Moreover, it is submitted that citizenship is of such fundamental importance to an individual, and the consequences to him so far-reaching, that it sets the boundaries of his civil rights and obligations.

But the main contention on behalf of the appellant is that this court should adopt the widest possible interpretation of the words "civil rights" in Article 6(1). In support of that contention, Mr Richmond relies on the dissenting opinion of Judge Loucaides in the case of Maaouia v France [2001] 33 EHRR 1037, where the judge interpreted the word "civil" in Article 6(1) as meaning simply "non-criminal", so that it would cover all other legal rights which are not of a criminal nature. The result of that would be, said the judge, to give the broadest scope to Article 6(1). Mr Richmond also emphasises the way in which a number of proceedings between governments and individuals have been held by the Strasbourg court to fall within the ambit of Article 6(1) as involving the determination of civil rights. Therefore, it is argued, there ought to be a tribunal or adjudicator acting independently and impartially to resolve disputes about citizenship in this country. This, it is said, would be preferable to leaving someone like the appellant to seek a declaration in the courts, because there will often be, as in the present case, factual disputes to be resolved. Nonetheless, Mr Richmond does accept that his client could seek a declaration in the courts that he is a British citizen.

On this particular issue about the meaning of civil rights within Article 6(1), the Secretary of State contends that the jurisprudence of the Strasbourg court, both originally and very recently, has established that a number of public law rights do not come within that concept even though they are non-criminal. Mr Pannick QC, who appears for the Secretary of State, relies on the recent decision of Ferrazzini v Italy [2002] 34 EHRR 1068, a decision of the Grand Chamber, to support that broad proposition.

So far as immigration is concerned, the majority of the court in the Maaouia case clearly held that such decisions regarding the entry, stay and deportation of aliens do not come within the ambit of Article 6(1), even though such decisions may have major repercussions on the individual's private and family life. It is submitted that Article 6(1) does not apply to disputes about citizenship. Here reliance is placed on two decisions of the Commission and one of the Court of European Human Rights. In S v Switzerland [1988] 59 DR 256 the Commission held that Article 6(1) does not apply to proceedings regulating a person's citizenship. More recently, in 1998, one has the decision of the Commission in Karassev v Switzerland (Application Number 31414/96), a decision arrived at unanimously. There the Commission said this:

The decision of the court at Strasbourg in Slivenko v Latvia (Application no.48321/99) is even more recent, being dated 23rd January 2002 and, Mr Pannick stresses on this aspect, being unanimous. One of the arguments there was that the applicants could properly be regarded as nationals of Latvia, and it was contended that proceedings in Latvia as to the legality of their stay there violated Article 6(1). At paragraph 94 the court observed that those proceedings "pertained exclusively to the domain of public law and involved no determination of their civil rights". Consequently, submits Mr Pannick, it is clear that the recent jurisprudence of both the court and the Commission establishes that Article 6(1) does not apply in matters concerning nationality or citizenship.

For my part, I am in no doubt that it is not open to this court to adopt Mr Richmond's very radical approach to Article 6(1), whereby any proceedings that are not criminal are to be regarded as involving a determination of "civil rights". The dissenting opinion of Judge Loucaides to this effect, which is relied upon, is contrary to the longstanding jurisprudence of the European Court of Human Rights, which has never adopted such an approach. Moreover, recent decisions of the Grand Chamber make it clear that not all non-criminal matters are to be seen as involving civil rights, as the concept is employed in Article 6(1).

The approach adopted in Strasbourg is well summarised in one of those recent decisions, the Ferrazzini case, where the court said this:

This court is not, of course, bound to follow the Strasbourg jurisprudence; but the position of the English courts was authoritatively put by Lord Bingham of Cornhill in R v (Anderson) and Secretary of State for the Home Department [2002] United Kingdom HL 46; (2002) 3 WLR 1800, at paragraph 18, where he said:

I would add that even more will that be so where that is a recent judgment of the Grand Chamber. I would therefore reject Mr Richmond's submission that this court should adopt the widest possible interpretation of "civil rights" in Article 6(1).

As for rights to citizenship in particular, it seems to me that there has been a consistent approach by the Strasbourg court and the Commission to questions of immigration and nationality, as the cases referred to by Mr Pannick demonstrate. It is true that Maaouia was concerned with the deportation of an alien rather than with citizenship; but the Commission's decisions, cited earlier, in S v Switzerland and in Karassev, were about rights to citizenship. The right to citizenship, as the Secretary of State contends, is very closely related to immigration issues, since a British citizen has a right of abode in this country and leave to enter the United Kingdom is not required by a British citizen: see section 2(1) and section 3 of the Immigration Act 1971. Proceedings concerning a right to citizenship would therefore seem to fall within the "hard core of public authority prerogatives" with a predominantly public nature, to adopt the wording of the test referred to in Ferrazzini. Therefore, were it necessary to decide whether the right to British citizenship fell within the concept of "civil rights" in Article 6(1), I would be minded to take the view that it did not.

However, this debate, in my judgment, misses an important point. Article 6(1) does not apply merely because civil rights are involved. The requirement to have an independent and impartial tribunal applies "in the determination of his civil rights and obligations". The word "determination" is of significance. Article 6(1) does not apply, for example, to proceedings which merely constitute a preliminary investigative stage: see Fayed v United Kingdom [1994] 18 EHRR 393.

What is striking about the present case is that, if the appellant could establish the facts as he alleges them to be, he would have a legal right to be a British citizen. The statutory provisions to which I have earlier referred confer on such a person the status of a British citizen automatically. There is no discretion vested in the Secretary of State. One notes a sharp contrast between those provisions, especially section 11(1) of the 1981 Act, and others in the same Act dealing with applications for naturalisation and registration as a British citizen, such as section 6(1) and section 6(2). In both the latter cases the statute requires the Secretary of State "to be satisfied" of certain matters before he may "if he thinks fit" grant a certificate of naturalisation. In those circumstances, the Secretary of State is in the position of making a decision or a determination. Yet the legislation confers no jurisdiction on the Secretary of State to determine in any authoritative way whether a person is a British citizen by virtue of section 11(1). He is simply not empowered to decide that issue. Nor is there any mechanism or process laid down by statute or regulation whereby he decides whether a person is entitled as of legal right to British citizenship under the 1981 Act. That is perhaps not surprising, because one is here dealing with whether or not that person has a legal right. The contrast is with such processes as registration or naturalisation, where the Secretary of State is empowered by section 41(1)(b) to make provision by means of regulations.

In short, in the end it is not for the Secretary of State to determine a person's legal right to citizenship. That is something essentially for the courts to decide, if there is a dispute. It is perhaps worth noting that section 44 of the 1981 Act, which both absolves the Secretary of State from having to give reasons for the grant or refusal of any application, the decision on which is at his discretion, and also purports to exclude appeal to, or review in, the courts in such cases, expressly provides in subsection (3) as follows:

Of course, the Secretary of State is very much involved in related matters, such as the issue of passports; and for that reason, as well as for obvious practical ones, it is sensible for any person asserting that he is entitled to the status of a British citizen to raise the matter first with the Home Office. But even on a passport application, the issue of whether a person is a British citizen is a matter of precedent fact where the courts, if there is a dispute, would be prepared to make a decision on the merits.

If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship, as both Mr Richmond and Mr Pannick agree. In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it.

In my judgment, therefore, the letter sent by the Minister of State which is now under challenge does not determine the appellant's rights, whether those rights were to be seen as civil ones or purely public law ones. It is to be seen more as an expression of the department's view on this particular case or, at the very highest, as some sort of provisional determination. This is perhaps why there is in the legislation no structure of adjudicators or rights of appeal and the like, in the way which is provided for in immigration and asylum cases. The natural place for the determination of legal rights conferred by statute is the court.

I would add that even if the ministerial letter was to be seen as some sort of determination of the appellant's right to citizenship, which I do not accept, it would be quite clear that the matter could still be taken to the courts in the way I have described. As Mr Pannick has submitted, that would provide full access to the court, which would (as an independent and impartial tribunal) be able to make a determination on the merits of the case. That being so, in the light of the approach spelt out the by the House of Lords in R v (Alconbury Developments Ltd) v The Secretary of State for the Environment [2001 2 WLR 1389, it would be enough to ensure compliance with Article 6(1).

It follows that I see no breach of Article 6(1) in the present case, principally because there has been no determination of the appellant's legal right to citizenship by the Secretary of State. It is, of course, still open to the appellant to bring proceedings in the courts for a declaration in the way I have described. But, given the state of the evidence, which I have set out earlier, for my part I would not encourage him to do so. It also follows that there is no need for the Secretary of State to establish any tribunal to determine matters concerning a claim to British citizenship.

For these reasons I would dismiss this appeal.

LADY JUSTICE ARDEN: I agree.

LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which Keene LJ has given.

The only ground of appeal upon which Chadwick LJ gave permission was that which contended that the right to be recognised as a British citizen was a civil right within the scope of Article 6 of the European Convention on Human Rights and, on that basis, that Mr Harrison's Article 6 rights were infringed because there is no independent and impartial tribunal established by law affording him a fair and public hearing on the question of fact whether his father was, indeed, born on board a British-registered ship in 1897.

As Keene LJ has demonstrated, the facts necessary to establish a claim to be a British citizen under sections 32(5), 12(1) and 12(2) of the British Nationality Act 1948, upon which Mr Harrison relies, are not facts to be determined under the statute by the Secretary of State. The Secretary of State has expressed the view that Mr Harrison has not established the necessary facts. Mr Pannick accepted that it was open to Mr Harrison to bring proceedings seeking a declaration as to the place of his father's birth. These would not be judicial review proceedings challenging an administrative decision, but a straightforward claim seeking a declaration of fact. If the fact is judicially established, it is accepted that citizenship follows as a matter of law derived from the statute. Mr Richmond did not submit otherwise. Accordingly, the case that Mr Harrison's Article 6 rights are infringed evaporates. Mr Harrison could bring proceedings before a fair and impartial tribunal, the court, where he could have a fair and public hearing. It follows that this court does not have to address the issue on which Chadwick LJ gave permission.

For this reason, I simply say that I agree with Keene LJ, for the reasons he has given, that Mr Harrison's claim to British citizenship does not assert a civil right for the purposes of Article 6.

It is also unnecessary to address Mr Pannick's further contingent submission by reference to R v (Alconbury Developments Ltd) v The Secretary of State for the Environment, Transport and the Regions [2002] 3 WLR 1800 and Begum v TowerHamlets [2002] 2 WLR 388 that judicial review would provide sufficient access to an independent and impartial tribunal for the purpose of Article 6 in the present case.

I agree that this appeal should be dismissed.