MB, R (on the application of) v Secretary of State for the Home Department

This is an application for permission to appeal a decision of Irwin J in which the applicant to the Administrative Court sought permission for judicial review of the decision by the Secretary of State to refuse to grant him British nationality.

The claimant’s father would have been entitled if alive to British overseas citizenship, since he had been brought up in Aden during the colonial period. The applicant was born 2 March 1980 in India and is by birth an Indian citizen, and indeed on 21 March 2005 he acquired an Indian passport based on his Indian nationality. He subsequently wrote to the United Kingdom passport office in the summer of 2007 applying for a British passport. The response informed the applicant that if he wished to apply for British citizenship, he should write to the Home Office National Inquiry Team, and an address was given. The letter then said:

“However, before doing so, you may want to consult the Indian authorities to see whether gaining British citizenship would effect your citizenship of that country.”

In due course a British overseas passport was issued to the claimant on 19 November 2007, and on 7 December 2007 he applied to register as a British citizen and a confirmation was sought from the applicant that he had held no other citizenship since 4 July 2002. There was no definite reply to that, and on 31 January the Secretary of State said that she was not satisfied that the applicant had fulfilled the necessary criteria for the grant of British nationality pursuant to the relevant legislation. In due course the applicant launched proceedings for judicial review of that decision.

The relevant statute is section 4B of the British Nationality Act which provides that a person who has the status of a British overseas citizen, which the applicant did, is entitled to be registered as a British citizen if the Secretary of State is satisfied that the person does not have any other citizenship or nationality than that of a British overseas citizen and the Secretary of State is satisfied that the person has not since 4 July 2002 lost through action or inaction any citizenship or nationality.

The argument for the Secretary of State before Irwin J, which the judge accepted, was that firstly the applicant may very well have and still have Indian nationality and therefore would be disqualified under subsection 2(b) because he would have a nationality otherwise than that of being a British overseas citizen, and secondly that if on the other hand he had lost his nationality, the only reason why he had lost it was in consequence of his own action in applying for a British overseas citizen’s passport.

Irwin J therefore rejected the application for a judicial review, regarding it as a plain case on the language of the statute. He complimented Mr Juss for the grace and elegance with which he tried to assert the contrary, and Mr Juss with the same grace and elegance has tried to assert to me today that there are reasons why this court should give permission to appeal in what Irwin J thought was a straightforward case. The argument has been rendered somewhat more difficult by the fact there are no formulated grounds of appeal in any intelligible form, but Mr Juss has put three grounds before the court. Firstly, that in other cases the Secretary of State granted citizenship to people who it is asserted already had Indian nationality in circumstances similar to the applicant; and secondly, that the requirement by the Secretary of State for confirmation that the applicant had no other citizenship, such as Indian citizenship, was a requirement that the Secretary of State was not entitled to make, because if the application was rejected on the ground of the applicant’s Indian citizenship, the applicant would effectively be rendered stateless; and thirdly, it is said that the status which the applicant has of being a British overseas citizen, albeit without British nationality, is something which resonates in European Union law, and reliance is put on the judgment of Blake J in MH [2008] EWHC 2525.

I fear I do not think there is anything in any of those grounds. The fact that the Secretary of State may have granted citizenship in some other cases, details of which were not before the Administrative Court, does not mean to say that the Secretary of State is not entitled to apply the law as contained in section 4B of the British Nationality Act 1981. The dilemma for the applicant is pointed out by the judge: either he does have Indian nationality, in which case he fails under subsection 2(b), or he has lost it by virtue of his application for British citizenship, in which case that is something which may be unfortunate from his point of view but cannot be attributed in any way to the Secretary of State.

As far as the European Union point, I note that Blake J in the course of his decision said this:

“The present policy of HM Government seems to be that in the absence of exceptional circumstances, stateless refugees with UK issued travel documents cannot seek diplomatic assistance from the UK Government. It would only be British nationality that would afford them a link to citizenship of the EU and ability to call on assistance from other member states as such.”

The context of that case was that of stateless refuges, as Blake J makes clear, and does not seem to me to have anything to do with the situation of the present applicant who is not a stateless refugee.

Elias LJ, in declining to give permission to appeal, said this:

“Even assuming that the effect of being a British overseas citizen is to deprive the applicant of his status as an Indian citizen, I can see no error in the approach of the Secretary of State. It is not for him to determine why somebody might be seeking British overseas citizenship, nor can there be an obligation to alert those who apply for their citizenship to be told what the implications may be with respect to the laws of other countries.”

I interpose there to say that, as I said in an earlier part of this short judgment, the applicant was in fact so told. Going back to Elias LJ’s reasoning:

“The Secretary of State refused British citizenship, because that was the effect of [he says ‘rules’, really the statute]. It is not contingent otherwise. I accept that it may be the case that the applicant did not fully appreciate the implications of his application for British overseas citizenship, but he cannot hold the Secretary of State accountable for his failure to find out what the implications were, nor to expect the Secretary of State to fail to apply the provisions of British law for that reason.”

That summarises succinctly what I have tried to express at slightly greater length.

It does seem to me that this is a hopeless application, and there is no reasonable prospect of the Court of Appeal reversing the decision of Irwin J in this case, and so I decline to grant permission to appeal.