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

This is an application dated the 30^th June 2004 made by Mr Nirmal Shah (“the Claimant”) for permission to challenge the decisions: (1) of the British Deputy High Commissioner (“the BDHC”) dated the 14^th December 2001 (“the 2001 Decision”); (2) of Mr Pilgrim of the Home Office to the Claimant dated the 9^th May 2003 (“the 2003 Decision”); and (3) contained in the letter of the Secretary of State for the Home Department dated the 6^th April 2004 (“the 2004 Decision”). The challenges are made with a view to securing registration of the Claimant, who is a British Overseas citizen, as a British citizen pursuant to section 4B of the British Nationality Act 1981. The Claimant has yet to make an application for such registration.

The 2001 Decision (as is common ground) wrongly refused the Claimant’s application for a British Overseas citizen’s passport on the erroneous ground that he was not a British Overseas citizen. The 2003 Decision accepted that the Claimant was at all times a British Overseas citizen but denied his entitlement to registration as a British citizen under section 4B of the British Nationality Act 1981. The 2004 Decision was to the same effect.

The application for permission to challenge the 2001 and 2003 Decisions are long out of time and were not included in the original application for permission which sought only to challenge the 2004 Decision. The Claimant only applied to amend to include a challenge to the 2001 and 2003 Decisions in the course of the proceedings.

Section 4B of the British Nationality Act 1981 (which was inserted in that Act by section 12 of the Nationality Immigration and Asylum Act 2002) provides as follows:

“4B Acquisition by registration: certain persons without other citizenship

(1)

This section applies to a person who has the status of―

(a)

British Overseas citizen …

(2)

A person to whom this section applies shall be entitled to be registered as a British citizen if―

(a)

he applies for registration under this section

(b)

the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and

(c)

the Secretary of State is satisfied that the person has not after the 4^th July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.”

This section came into force on the 30^th April 2003 and that was the earliest date on which an application for registration as a British citizen could be made. The section in subsection (2) lays down three conditions for entitlement by a British Overseas citizen to such registration. Most particularly the section requires that the applicant for registration is not a citizen of another country and that, if he is not such a citizen, that he did not voluntarily cease to be a such citizen after the 4^th July 2002. The section vests no discretion in the Secretary of State to waive these requirements: compare Shala v. SSHD [2003] EWCA Civ 233.

The Claimant is a British Overseas citizen. The Claimant by common consent prior to the 2001 Decision was also a citizen of India. Accordingly unless the Claimant lost his Indian citizenship thereafter and prior to the 4^th July 2002, the Claimant is not entitled to be registered as a British citizen. The legislation does not admit of a construction allowing any perceived injustice to the Claimant occasioned by the 2001 Decision to produce a different result: compare Gowa v. AG [1985] 1 WLR 1003. It was for this reason that the Secretary of State in the 2004 Decision made plain that, if the Claimant applied for registration, the application would fail.

The Claimant has submitted an expert report on Indian law by Dr Prakesh Shah. This report states that under Indian law the Claimant loses his Indian citizenship when and if he is granted a British passport or a British Overseas citizen’s passport, and that, if the grant of the passport is retrospective, the loss of Indian citizenship is likewise retrospective. The Claimant’s application turns on whether he is to be treated as granted a British Overseas citizen’s passport, and accordingly as having lost his Indian citizenship, in December 2001.

The Claimant contends that the 2004 Decision that he is not entitled to registration as a British citizen is unlawful because the Secretary of State was duty bound to remedy the error made in the 2001 Decision, not merely by accepting that the Claimant was a British Overseas citizen, but to reverse the consequences of wrongfully refusing to grant him a British Overseas citizen’s passport and in particular to remedy the prejudice flowing from that error on the Claimant’s subsequent application for registration as a British citizen. If by the 2001 Decision the Claimant had been granted the passport which he sought, upon grant of that passport under Indian law the Claimant would automatically (and accordingly prior to the 4^th July 2002) have lost his Indian citizenship. The Claimant contends that in this judicial review proceedings the court when granting relief quashing the 2001 Decision should at the same time require the Secretary of State in order to right the injustice caused: (1) to treat the Claimant on his current application for a British citizenship as if his application in 2001 for British Overseas citizenship had been granted and accordingly as if the Claimant had lost his Indian Citizenship prior to the 4^th July 2002; and (2) to treat the condition imposed by section 12(2)(e) as satisfied.

In my judgment this ingenious reasoning is plainly faulty. (1) I do not think that the court should entertain this application for judicial review. The challenge to the 2001 or the 2003 Decisions are long and inexcusably out of time and the 2004 Decision merely repeats what was decided by the 2003 Decision; (2) the error of the Secretary of State (acting by the DBHC) in the 2001 Decision is common ground and has been so since the 2003 Decision. All that the court could do on an application for judicial review of that decision would be to declare the Claimant’s entitlement to British Overseas citizenship (which is redundant) and require the Secretary of State to reconsider whether to exercise his discretion to grant to the Claimant a British Overseas citizen’s passport. But the Claimant does not want that passport, which is why he has never renewed an application for it; (3) the discretion whether to grant the British Overseas citizen’s passport has at all times be one for the Secretary of State and not this court. If the Secretary of State at any time did decide to exercise his discretion in favour of the Claimant, the passport would date from the exercise of discretion in his favour and not earlier and would not have any retrospective effect. No question could accordingly arise of the Claimant having lost his Indian citizenship at any earlier date, let alone prior to the 4^th July 2002.

In summary section 4B(2)(c) required the Secretary of State when making the 2004 Decision to be satisfied that the Claimant was not an Indian citizen and had not since the 4^th July 2002 renounced, voluntarily relinquished or lost through action or inaction that citizenship. The error in the 2001 Decision cannot entitle (let alone require) the Secretary of State to waive or treat as satisfied that condition. That condition was not and cannot on the facts of this case be satisfied.

The Claimant as a last resort invoked Articles 8 and 6 of the European Convention on Human Rights. Article 8 is of no assistance to the Claimant, for its application turns upon the Claimant establishing that his citizenship rights go wrongly unrecognised. He has no such citizenship rights. Nor is Article 6 engaged, because the determination of one’s citizenship is not a civil right within the meaning of Article 6.

I accordingly refuse permission.