Hauradhun v Secretary of State for the Home Department

HIS HONOUR JUDGE DIGHT: The claimant, who was born in Mauritius on 18 June 1979 of a father who had also been born on the island contends that she is a British citizen under the British Nationality Act 1981 via sections 11 and 14, on the grounds that her father was at all material times a citizen of the United Kingdom and Colonies, as they then were, and she is therefore a British citizen by descent. The defendant contends that by the time of the claimant's birth in 1979 her father was no longer a citizen of the United Kingdom and Colonies but had become a citizen of Mauritius after it had been granted independence on 12 March 1968, a conclusion that is contained in a letter dated 27 February 2016.

This application for judicial review to challenge that conclusion is brought with permission of Ms Dinah Rose QC, granted on 15 June 2016. There is in reality a single ground of challenge, namely that the defendant misconstrued the relevant legislation and misdirected herself as a matter of law.

The factual background is as follows: the claimant was born in Mauritius on 18 June 1979. Mauritius is an independent republic within the Commonwealth. It had originally been acquired from the French in 1814 and on the coming into force of the British Nationality Act 1948 it became part of the United Kingdom and Colonies, which status it retained until it attained independence on 12 March 1968 pursuant to section 1 of the Mauritius Independence Act 1968. It became a republic in 1992.

The claimant's paternal family were born in Mauritius. In 1916 the claimant's paternal grandfather, Mr Rajendrah Hauradhun, was born in Mauritius and in 1948 became a citizen of the United Kingdom and Colonies. In 1949 the claimant's father, Devdass Hauradhun, was born in Mauritius and was a citizen of the United Kingdom and Colonies at birth.

The claimant alleges that notwithstanding the grant of independence to Mauritius on 12 March 1968 her father did not become a citizen of Mauritius but on a proper construction of section 3(2)(b) of the Mauritius Independence Act 1968 remained a citizen of the United Kingdom and Colonies, as a result of which she herself became a citizen of the United Kingdom and Colonies by descent on her birth.

The claimant came to the United Kingdom as a student on 5 April 2004. After various extensions of her leave to remain she made an application to be recognised as a British citizen on 25 November 2015 which was rejected by the Secretary of State in a letter dated 27 February 2016.

The claimant has a complicated immigration history which is irrelevant to the question which I have to decide.

The sole legal issue is the proper construction of the relevant statutory framework, which seems to me to start with a consideration of the British Nationality Act 1981. Section 11 of the Act is headed "Citizens of U.K. and Colonies who are to become British citizens at commencement", and subsection (1) provides as follows:

Section 14 of the Act, which is headed "Meaning of British citizen (by descent)", provides as follows in subsection (1):

Section 5, headed "Citizenship by descent", provides in subsection (1):

The provisions of the Mauritius Independence Act 1968 (which is a Public and General Act of the United Kingdom Parliament) relevant to the issue before me provided as follows: in section(2), which is headed "Consequential modifications of British Nationality Acts", it says in subsection (2):

The defendant says that this is a bad point and that nothing turns on it, that there is no material difference between the provisions contained in the Nigeria Independence Act 1960 and the Jamaica Independence Act 1962 and the Mauritius Independence Act 1968, and that one should not treat the Mauritius Independence Act 1968 any differently or construe it in a different way to the other Acts, albeit that it is framed in slightly different wording.

The Nigeria Independence Act 1960 provided insofar as material to this claim in subsection 2(2) as follows:

Section 20(1) of the Constitution of Mauritius in force at that appointed day provided that:

The key provision relied on by the claimant in this matter is section 3 of the Mauritius Independence Act 1968, headed, "Retention of citizenship of United Kingdom and Colonies by certain citizens of Mauritius". It reads, insofar as material, as follows:

Section 3, in subsections (1) and (2), contains a number of alternative exceptions. Section 3(1) excludes a person who was born in the United Kingdom or in a colony, or was a person naturalised in the United Kingdom and Colonies, or was registered as a citizen of the United Kingdom and Colonies, or became a British subject by reason of the annexation of any territory included in a colony. The only potentially relevant provision in section 3(1) is that in (a) if the claimant's father was born in the United Kingdom - which he was not - or in a colony. Subsection (5) excludes Mauritius from the category of colonies for the purposes of this provision and therefore it is of no avail to the claimant to show that her father was for the purposes of this subsection born in Mauritius.

Sections 3(2)(a) and (b) contain two alternatives. The first would be of assistance to the claimant if her father was born in a protectorate or protected state, but it is accepted that that provision does not apply because Mauritius was neither a protectorate nor a protected state. The second alternative is the one relied on by the claimant, she says that her father or her father's father falls within the phrase "so born and is or at any time was a British subject."

The defendant accepts that the claimant's father and grandfather were British subjects. The claimant submits that the phrase "was so born and is or at any time was a British subject" in subsection 3(2)(b) means born as a citizen of the United Kingdom and Colonies. It is said that because the claimant's father was so born he remained a citizen of the United Kingdom and Colonies. In support of that construction the claimant says that the phrase "was so born and is or at any time was a British subject" is a reference back to the words "a citizen of the United Kingdom and Colonies" in the phrase, "A person shall not cease to be a citizen of the United Kingdom and Colonies under the said section 2(2) if" with which that subsection commences. In support of this contention the claimant relies on the fact that (a) and (b) are alternatives to be read disjunctively and not together. The claimant submits that a literal approach to construction takes one to the conclusion which she urges.

The defendant's submission is, first, that the claimant's construction of section 3(2)(b) is inconsistent with the plain language of the statute, that the use of the words "so born" is a reference back to subparagraph (a), namely to having been born in a protectorate or protected state, and not to the earlier phrase at the beginning of the subsection, "citizen of the United Kingdom and Colonies". It is submitted that if one construes it in the way submitted by the defendant it would only be if the claimant's father had been born in a protectorate or protected country such as Bahrain, Kuwait or Oman that he would have kept his citizenship; that "so born" does not refer to birth within the United Kingdom and Colonies; that the words which the claimant needs to rely on are not there; and that in any event Mauritius is excluded from the definition of colonies by subsection (5).

It seems to me that all of those submissions are correct. The words "so born" in section 3(2)(b) are plainly a reference back to the use of the word "born" in (a), which refers to the relevant person being born in a protectorate or protected state. It would be straining the language of the provision to construe the words "so born", as a reference back to "a citizen of the United Kingdom and Colonies", which does not in any event use the word “born” in connection with the phrase “a citizen of the United Kingdom and Colonies".

In my judgment the plain meaning of the subsection is that advanced by the defendant and the wording cannot be strained to reach the interpretation which the claimant seeks to place on it. Equally, I accept the submission that by virtue of subsection (5) Mauritius is excluded from the definition of colony or colonies, so that if there were a reference back to the opening words of subsection (2) and the factual situation which the claimant sought to prove was that her father was born in one of the United Kingdom "colonies", that would not avail her because by virtue of subsection (5) Mauritius is not to be included within the definition of that section, and so she would have to prove either that he was born a citizen of the United Kingdom or one of the other colonies.

That is very much a secondary argument. The primary conclusion which I reach is that the construction advanced by the claimant is inconsistent with the plain language of the statute which, with the greatest respect, there is no difficulty in construing. There is no reason why the section should be construed in the way that the claimant suggests. Subsections (1) and (2) contain alternatives, but each of the subsections contain similar alternatives in the sense that subsection (1) sets out four similar alternatives, subsection

Secondly, as the defendant also submits, the construction advanced by the claimant, if correct, would lead to absurd consequences because it would mean probably (although I cannot find this as a matter of fact) that a very large part of the population of Mauritius would continue to be citizens of the United Kingdom with the various rights that that would confer on them, quite contrary to the plain legislative intention behind the Mauritius Independence Act 1968 which was that Mauritius was to become an independent state, that the people living or at least born there were to become citizens, with very limited exceptions. To hold as the claimant suggests would blow a hole in the purpose behind the policy of the Mauritius Independence Act 1968.

Thirdly, I also agree that the construction that is being advanced is inconsistent with the approach taken by the Court of Appeal in the relatively recent case of Ize-Iyamu v theSecretary of State for the Home Department [2016] EWCA Civ 118. Mr Ize-Iyamu was born in Nigeria in 1975 after independence, of parents who had been British subjects. The applicant sought a right of abode in the United Kingdom and the court looked at whether he had acquired this by having become a British citizen by descent. The defendant relies on this decision. The claimant says that it is not on all fours and is distinguishable on both the facts and the law because it related to Nigeria and the separate statute governing the independence of that country, and that it recognised that determination of citizenship of Nigeria was to be undertaken in accordance with the law of that newly-independent state.

In giving the leading judgment, Moore-Bick LJ, with whom Underhill and Beatson LJJ agreed, summarised the effect of the relevant legislative provisions. In paragraph 3 Moore-Bick LJ set out the effect of the British Nationality Act 1948; in paragraph 4 of the Nigerian Independence Act 1960; and in paragraph 8 of the British Nationality Act 1981. In paragraph 4 he said:

Section 20(1) of the Constitution of Mauritius, which I have referred to above, was of similar effect in my judgment to the Constitution of Nigeria as set out by Moore-Bick LJ in paragraph 4 of his judgment. In paragraph 15 of his judgment, Moore-Bick LJ rejected Mr Ize-Iyamu's claim and said, under the heading "British citizenship by descent from his father":

The conclusions which I have reached are also consistent in my judgment with the passage from Fransman's British Nationality Law, third edition at page 1121, cited to me by the defendant, which states that:

When Mauritius became independent on 12 March 1968 the claimant's father lost his status as a citizen of the United Kingdom and Colonies unless he fell within section 3 of the 1968 Act. The claimant's father had been born in Mauritius and, having been a citizen of the United Kingdom and Colonies on the appointed day, became a citizen of the newly independent Mauritius under the Mauritian Constitution for the reasons I have already given. Because he did not fall within any of the exceptions under the 1968 Act, the father ceased to be a citizen of the United Kingdom and Colonies and was not such a citizen at the date of birth of the claimant, who was accordingly not a citizen of the United Kingdom and Colonies by descent.

The Secretary of State's view expressed in the letter of 27 February 2016 was correct. The claimant is not entitled to the relief which she seeks and the claim is dismissed.

MR MALIK: My Lord, I am very grateful for the judgment. My Lord, I have an application for costs. This is a case where the general principle as to costs applies. There is a costs schedule that was filed prior to the substantive hearing. It has now been updated. I have a spare copy (Handed up).

HIS HONOUR JUDGE DIGHT: Mr Rees, what do you want to say about the principle of costs?

PROFESSOR REES: My Lord, I am not in a position to resist costs in the light of your very clear judgment.

HIS HONOUR JUDGE DIGHT: Thank you.

PROFESSOR REES: But I am wondering whether the question of costs can be agreed between the solicitors?

HIS HONOUR JUDGE DIGHT: Well, I can assess them if they cannot be agreed. It is not very much. Do you have a view on quantum?

PROFESSOR REES: I do not. I have just been handed it now, just prior to the start of the hearing.

HIS HONOUR JUDGE DIGHT: Do you want me to rise for five minutes so you can have a look and take instructions?

PROFESSOR REES: No, my Lord, I think it basically looks reasonable and if that is your Lordship's view?

HIS HONOUR JUDGE DIGHT: Well, it seems to me that in the usual way the Government legal services charge-out fees are impressively low and well within the levels which, if they were commercial solicitors, would be chargeable for this sort of work.

PROFESSOR REES: Yes.

HIS HONOUR JUDGE DIGHT: Equally, Mr Malik's fees are well below the figures which the guidance in CPR Part 44 suggests are appropriate for this sort of work, and I would not be inclined to reduce the figure at all.

PROFESSOR REES: Okay, my Lord.

HIS HONOUR JUDGE DIGHT: I will hear you if you have --

PROFESSOR REES: No, I do not have any strong arguments other than that the claimant is impecunious. We know that, and she is going to be in real difficulties paying. This was her last chance to succeed to remain here.

HIS HONOUR JUDGE DIGHT: Yes. I understand that.

PROFESSOR REES: So this is a double blow.

HIS HONOUR JUDGE DIGHT: She cannot work either?

PROFESSOR REES: No.

HIS HONOUR JUDGE DIGHT: Yes, I understand that. All right, thank you very much. Well, in those circumstances I will dismiss the claim and order that the claimant pay the defendant's costs summarily assessed in the sum of £4,762.

I thank you both very much for your submissions.