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

These four claims are brought by four siblings who claim to be Somalis born in the former Crown Colony of Aden and thereby entitled to a British Overseas citizen (“BOC”) passport. The Claimants apply to quash the decisions of the Defendant to refuse their applications for a BOC passport, and apply for declarations as to their British nationality. The Claimants have the same names, and so I will refer to them by their first names, to avoid confusion, and without intending any disrespect to them.

The Claimants applied for their BOC passports, through their solicitor, on about 4 March 2013. On 27 April 2013, the Defendant asked for further information and evidence, which was supplied by the Claimants on 2 July 2013. The Claimants each attended an interview at the British Embassy in Abu Dhabi, United Arab Emirates (“UAE”) on 9 June 2015.

The Defendant refused the applications in March and April 2016.

Following pre-action protocol correspondence, the claims were issued on the following dates: Mohamed – 28 July 2016; Zain – 1 August 2016; Eman – 5 August 2016; Fouzia - 15 August 2016.

HH Judge Elizabeth Cooke, sitting as a Judge of the High Court, granted permission in Mohamed’s claim on 23 September 2016. Ouseley J. granted permission in Fouzia’s claim on 30 November 2016. May J. granted permission in Eman’s claim on 13 December 2016. Andrew Baker J. granted permission in Zain’s claim on 1 February 2017.

On 25 January 2017, the Defendant applied to strike out the Claimants’ claims, along with other similar claims by other individuals, represented by the same solicitors, but otherwise not connected to the Claimants. As a result, Andrew Baker J. ordered a stay of all the claims until the strike-out application was determined on 15 February 2017.

Following a hearing, I dismissed the strike-out application on 12 December 2017, stating that applications to strike out claims for judicial review will only be appropriate in exceptional cases because generally the permission procedure acts as an effective filter to weed out unmeritorious cases. Where permission has been granted, a defendant ought not to seek to have another bite of the cherry by applying to strike out a claim, unless the grounds for strike-out had arisen since the date upon which permission was granted. The legal requirements which the Claimants had to satisfy in order to obtain a BOC passport were not in dispute. The only issue was whether, on the evidence, they could make out their claims to be entitled to BOC passports. These four claims had been found, by four different judges, to be sufficiently credible and arguable to pass the permission test. Therefore I ruled that each claim ought to proceed to a substantive hearing.

By my order of 15 December 2017, the stay was lifted and case management directions given. Because of the family connection between the Claimants, and the evidence in common, these four claims were linked so as to be heard together.

The parties were in agreement as to the legal basis upon which a Somali born in Aden may be a BOC and entitled to a passport accordingly.

Under s.1(1)(a) of the British Nationality and Status of Aliens Act 1914, any person born within His Majesty’s dominions and allegiance was deemed to be a natural-born British subject.

Section 4 of the British Nationality Act 1948 (“the 1948 Act”) materially stated that:

“…..every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth.”

The term “citizen of the United Kingdom and Colonies” is commonly abbreviated to “CUKC”.

By virtue of s.12(1)(a) of the 1948 Act, a person who was a British subject immediately before the commencement of the 1948 Act became a CUKC on commencement if he was born within the territories comprised at commencement in the United Kingdom and Colonies and would have been a CUKC if section 4 of the 1948 Act had been in force at the time of his birth.

The Colony of Aden was a Crown colony as at 1 January 1949, which was the date of commencement of the 1948 Act. So from 1 January 1949, every person born in the colony of Aden became a CUKC.

The Colony of Aden became the State of Aden within the British Protected Federation of South Arabia on 18 January 1963. It continued to be a British colony until independence.

The State of Aden became part of the independent state of the People’s Republic of Southern Yemen (also known as South Yemen) on 30 November 1967. In 1989, South Yemen unified with the former Yemen Arab Republic (North Yemen) to create the Republic of Yemen.

The Aden, Perim and Kuria Muria Islands Act 1967 (“the 1967 Act”) provided for the relinquishment of UK sovereignty over inter alia Aden. Paragraph 1(1) of the schedule to the 1967 Act headed “Change of citizenship” stated that:

“Except as provided by the following provisions of this Schedule, any person who, on such date as may be specified in an order made by the Secretary of State -

(a)

in consequence of his connection with a territory designated by the order, possesses any such nationality or citizenship as may be specified by the order, whether he acquired that nationality or citizenship before that date or acquires it on that date, and

(b)

immediately before that date is a citizen of the United Kingdom and Colonies,

shall on that date cease to be a citizen of the United Kingdom and Colonies.”

The relevant “order” referred to in the 1967 Act that was made by the Secretary of State was the British Nationality (People's Republic of Southern Yemen) Order 1968 ("the 1968 Order"), which provided that:

“For the purposes of paragraph 1 of the schedule to the Aden, Perim and Kuria Muria Islands Act 1967 (which provides, subject to exceptions, for the loss, on such date as may be specified by order, of citizenship of the United Kingdom and Colonies by a person possessing on that date such nationality or citizenship as is so specified by reason of his connection with a territory designated by the order) -

(a)

the People's Republic of Southern Yemen shall be a designated territory;

(b)

in relation thereto the specified nationality shall be Southern Yemeni nationality, and;

(c)

in relation thereto the specified date shall be 14^th August 1968.”

The effect of the 1968 Order was that any person who possessed South Yemeni nationality in consequence of his connection with the People’s Republic of Southern Yemen on 14 August 1968, and was a CUKC immediately before 14 August 1968, ceased to be a CUKC on 14 August 1968.

The question whether a person possessed Southern Yemeni nationality on 14 August 1968 has to answered by reference to Southern Yemen nationality law. Article 1 of the People’s Republic of Southern Yemen ‘South Yemen’ Law of Nationality 1968 (No 4), which came into force on 4 August 1968, materially provided that:

“The following expressions in this law shall have the following meanings...

(b)

‘Republic’: the People’s Republic of Southern Yemen...

(e)

‘Arab’: any person belonging to the Arab nation and holding the nationality of any Arab state.”

Article 2 of Southern Yemen's nationality law provided that:

“The following shall be considered Southern Yemeni by birth...

(b)

any Arab born in the Republic, provided that one or both of his parents has resided in the Republic for at least five years.”

Following the settlement of the judicial review claim in R (Botan) v Secretary of State for Foreign and Commonwealth Affairs CO/1484/2009, the Defendant did not dispute that Somalis born in Southern Yemen were not considered Arab under Articles 1(e) and 2(b) and so did not automatically become Southern Yemenis from 14 August 1968, the date Southern Yemen’s nationality law was applied by the 1968 Order. That meant that for the purposes of the 1968 Order, they did not, as a matter of birth, possess Southern Yemeni nationality on 14 August 1968. Therefore, unless they acquired Southern Yemeni nationality some other way, such as by registration on or before 14 August 1968, they did not cease to be CUKCs on 14 August 1968.

A CUKC who lacked a right of abode in the UK or equivalent right in a remaining British Dependent territory became a BOC from 1 January 1983 by virtue of s.26 of the British Nationality Act 1981. Accordingly, all Somalis born in Aden on or before 14August 1968 who had not acquired Southern Yemeni nationality on or before that date became BOCs from 1 January 1983. As they did not meet the requirements of section 11 of the British Nationality Act 1981, they were not eligible to become British citizens.

BOCs are entitled to a British passport and to request consular protection from the UK Government when travelling abroad. However, they have no right of abode in the UK. Acquisition of citizenship of another country, in this case Somalia, does not result in the loss of British Overseas citizenship.

The Claimants are contending that they are BOCs by operation of law and they claim a declaration to that effect. The Defendant has no discretion to refuse a passport to a person who has the legal right to BOC status. The question whether each Claimant is a BOC is a question of precedent fact for the court to determine on the basis of the evidence before it. The analysis by Keene LJ in R. (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 in respect of British citizens under section 11 of the British Nationality Act 1981 is also applicable to these claims:

“31.

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.

…..

33.

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.

34.

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… 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.”

It is clear from Harrison that the court does not consider whether, applying public law principles, the Defendant was entitled to find that the Claimants had not proved that they were the holders of their claimed identity, but instead considers for itself whether the Claimants have proved that they are the holder of their claimed identity.

The burden of proof rests upon the Claimants to establish that they are BOCs, applying the civil standard of the balance of probabilities: see R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin) per Walker J. at [11]. That is the burden and standard of proof which I have applied in making my findings of fact and reaching my conclusions.

The Defendant’s decision letter refusing Mohamed’s application was dated 16 March 2016 and gave the following reasons:

“Your client has submitted a non contemporaneous Colony of Aden birth certificate dated 17^th February 1959.

Passport numbered 45141/3 issued 05/07/1976 is issued in the name Mohamed Abdillahi Omer year of birth 1959 and shows mother as Serad Mirreh and whereas birth certificate shows claimed name as Muhammad and mother’s name as Sirag Mirai. This passport has not been cancelled.

Passport 87557 issued 30/06/1979 issued in Kuwait in the name of Mohamed Abdullaih OMAR issued in Kuwait has both date of birth and Mother’s name amended.

Passport 317647 issued 27/06/1985 issued in Kuwait shows mother as Sirad Mireh and has had the date of birth amended to what appears to be 03/02/1969.

In your client’s mother’s passport submitted her name is Serat Mireh ODOWA.

Your client is not listed in either mother or fathers passports.

At interview your client was unable to name either of his parents names without reference to documents he had with him. He was also unable to name the person who counter signed his passport application even though that person had declared on the application form they had known your client for ten years.

At interview your client stated that his father was resident in Yemen from 1952 until 1978 when he moved to UAE where he stayed until he passed away in 2004. Two passports submitted for your client’s father show they were issued in Kuwait in 1987 and 1990 and they both show he was domiciled in Kuwait for that period.

When asked about his siblings your client omitted a sibling who is included on the family list submitted with the application who is also named as Mohammed and was born in 1965 in Somalia. Your client’s mothers year of birth is listed as 1939 on the family list but shows as 1938 in her passports.

Fathers British Protected Person passport issued 1958 Aden in name Abdillahi Omer Nooh born 5/11/33 – date of birth differs to Somali passports which all show 1939

The discrepancies as described above and the answers given at interview have not satisfied HM Passport Office that your client is the true holder of the claimed identity and it is for that reason the application has been refused.”

The Defendant’s decision letter refusing Zain’s application was dated 20 April 2016 and gave the following reasons:

“Your client attended an interview on 9^th June 2015. At interview your client was not able to offer satisfactory explanations in relation to various discrepancies in the documents submitted to support his application detailed as follows;

It has been established there are discrepancies with personal details (name and date of birth) on the documents provided;

Aden birth certificate in name Zain born 25/5/61

Father – Abdillahi Umar

Mother – Sirat Miray

Somali passport issued 1978 in name Zain Abdillahi Omer born 25/5/61

Father – Abdillahi Omer

Mother – Sirad Mirreh

Somali passport issued 1993 in name Zain Abdillahi Omer born 25/5/61

Father – Abdillahi Omer

Mother – Sirad Mirreh

Photocopy of Somali passport issued 2012 in name Zain Abdillahi Omer born 25/5/61

Mother – Sirad Mirreh Odowa

Somali ID card in name of Zain Abdillahi Omer born 25/5/61

Yemen Ministry of Education certificate of passing in name Zain Abdillahi Omer born 25/5/61

Yemen Ministry of Education leaving certificate in name Zain Abdillahi Omer born 1961

UAE Ministry of Education examination certificate in name Zain Abdillahi Omer Nouh – differs to all other documents with addition of name NOUH

Fathers Somali passports issued 1987, 1990 and 1999

Passports show discrepancies with fathers name: Abdillahi Omar Nooh and Abdallah Omar Nooh

Included in Mothers Somali passports issued 1976 in name Zain Abdillahi born 1961

Following inconsistent responses when your client was interviewed, which did not alleviate the concerns surrounding the discrepancies in relation to the documents, your client’s identity and subsequent claim to British Citizenship is in doubt. HMPO are unable to establish if your client is genuinely the rightful holder of these documents.

There is no mention of the name NOOH on any of the documents provided, including the Aden birth certificate.

The Aden birth certificate is non contemporaneous but is certified as though it is.

The Aden birth certificate has the entry number crossed through

At the interview, your client provided a different name for the sibling who is deceased; he gave the name Assia instead of Zahra.

The discrepancies as described above and the answers given at interview have not satisfied HM Passport Office that your client is the true holder of the claimed identity and it is for that reason the application has been refused.”

The Defendant’s decision letter refusing Fouzia’s application was dated 26 April 2016 and gave the following reasons:

“Your client attended an interview on 9^th June 2015. At interview your client was not able to offer satisfactory explanations in relation to various discrepancies in the documents submitted to support his application detailed as follows;

During this process it has established there are discrepancies with personal details (name and date of birth) on the documents provided and following inconsistent responses when your client was interviewed, which did not alleviate the concerns surrounding the discrepancies in relation to the documents your clients identity and subsequent claim to British Citizenship, HMPO are unable to establish if your client is genuinely the rightful holder of these documents.

The name NOOH was not stated on some of the documents provided.

The Dependants Registration Card for father, which your client’s details were added on, states father’s nationality as Arab. Hence, this is evidence that Somalis were considered Arab and would have had an entitlement to become Yemeni nationals

Your client was added to both parents Somali passports at the same time, even at the age of 34 when the passports state only children up to the age of 14 should be added.

Your client’s father was issued with a British Protected Person passport in 1958 and valid until 1963, there were no subsequent passports issued which indicates that he lost his claim to this passport after independence.

There were discrepancies in the Date of birth and the Aden birth certificate 31/01/1965, the school reports 30/05/1965 and the training certificates 1966.

The discrepancies as described above and the answers given at interview have not satisfied HM Passport Office that your client is the true holder of the claimed identity and it is for that reason the application has been refused.”

The Defendant’s decision letter refusing Eman’s application was dated 26 April 2016 and gave the following reasons:

“Your client attended an interview on 9^th June 2015. At interview your client was not able to offer satisfactory explanations in relation to various discrepancies in the documents submitted to support her application detailed as follows;

Your client was unable to provide sufficient explanation as to why some key documents were missing or the originals were unavailable.

There are also discrepancies with personal details on the documents provided;

Aden birth certificate in name Iman born 7/7/66 is certified as if it were an original whereas the dates contained on it show that it is not an original certificate as it purports to be issued five days after the birth registration.

The certificate shows parents as:

Father Abdillahi Omer Nooh

Mothers sirad mirrad Odowah

Photocopy of Somali passport issued 29/10/12 in name Eman Abdullah Omer Nooh born 7/7/66 – name differs from birth certificate

mother serat mireh adowa – differs from birth certificate

Passport 315319 issued in the name Serat Mireh ODOWA issued 12^th February 1986 shows an entry for a child inserted between siblings born 1965 and 1967. The entry for the child in between those dates has been overwritten to show the word cancelled. It is not clear from the entry that the name was of your client.

Passport A0021096 issued in the name Serat Mireh ODOWA issued 16/07/1991 shows four children none of whom are your client.

Passport 45142/3 issued in the name Serah Mireh ODOWA issued 5^th July 1976 shows seven children, none of whom are born 1966.

There is one child named Eman Abdillahi who’s year of birth appears to be 1969 although that entry has an amendment made to the year of birth.

The entries of your client into father’s passports A0116989 issued 28^th July 1990 and A0952300 issued 28^th July 1999 is inconsistent with the entries in the mothers passports and all of the entries showing children in father’s passports and mothers passport A0021096 are as adults and should only be included up to the age of 14 according to the passports themselves.

Somali ID Card in name Eman abdullah omar Nooh born 7/7/66 – name differs from birth certificate

Three Abu Dhabi educational institute certificate in name Eman Abdillahi Omer NOOH born 1966 – name differs from birth certificate

UAE Ministry of Education examination certificate in name Eman Abdillahi Omer NOUH – name differs from birth cert

Following inconsistent responses when your client was interviewed, this did not alleviate the concerns surrounding the discrepancies in relation to the documents, your clients’ identity and subsequent claim to British Citizenship. HMPO therefore are unable to establish if your client is genuinely the rightful holder of these documents.

The Aden birth certificate submitted was signed by the same registration officer as sibling, Intissar Abdullahi Omar NOOH, but the handwriting differs.”

In 2013 (Footnote: ¹), the Defendant issued Guidance to civil servants making decisions on applications by BOCs based on birth in Aden. It provided, inter alia:

“Detailed Guidance – Evidence

5.9

When considering an application for a BOC passport from an applicant with connection to Yemen, examiners need to assess whether the applicant became Yemeni on the basis of his own and his parent’s place of birth. If the applicant is of Somali or South Asian descent, examiners should not now assume that the person became Yemeni automatically on independence. However, they should expect to see contemporaneous (documentary) evidence of the parent’s birth in Somalia – normally the birth certificate or passport. Examiners should also request to see evidence of the parents’ marriage. In general, the following should be requested when considering BOC applications with connection to South Yemen (colony of Aden):

•

An original birth certificate indicating that the applicant was born in Yemen, preferably with the contemporaneous official translation;

•

A passport for the father, if the applicant’s birth certificate does not state his place of birth. If the applicant’s father is born in Yemen, we need proof that they did not become Yemeni on independence, such as naturalisation certificate or a Somali passport issued after independence.

•

A range of identity documents for the applicant from different years (preferably different decades) to demonstrate that they are the person that the birth certificate relates to.

5.10

In addition to the documents, examiners should look for consistency of name, date and place of birth in the documents provided. Examiners should also look for a range of photographic identity documents from different times that would give added confident about the identity of the person applying for the passport.”

In my view, it is clear that the Guidance provides examiners with suggested tools and techniques to assist them in reaching a conclusion on the question they have to determine, namely, the identity, nationality, date and place of birth of the applicant. It is not a tick-box exercise. The examiner has to evaluate the evidence and exercise his judgment in each individual case. Thus, it is possible that an examiner may be satisfied as to an applicant’s claimed identity etc. even if not all the documents listed in the Guidance are available or even if the details shown in those documents are not entirely consistent.

I heard oral evidence from each of the Claimants, with the assistance of an interpreter, via video link from Abu Dhabi where they reside. At my request, the Claimants gave detailed oral evidence in chief, referring to each relevant document in the bundle. The Claimants were then extensively cross-examined.

Expert evidence was adduced by the Claimants in the form of written reports. This evidence was not challenged by the Defendant, and so no expert witness gave oral evidence.

All the Claimants produced British Colony of Aden birth certificates which showed that they were born in Aden before 14 August 1968; that they had the same parents; their parents were Somali; and they were living in Aden.

Mohamed’s birth certificate read as follows (I have set out the printed text in bold to distinguish it from the handwritten text but in the original it is printed in red):

“A 12063

COLONY OF ADEN

CERTIFIED EXTRACT FROM REGISTER OF BIRTHS PURSUANT TO THE BIRTHS, DEATHS AND MARRIAGES REGISTRATION ORDINANCE, 1955

Date and Place of Birth

3^rd February 1959

House No. 32 Usama, Manzilla, Little Aden.

Sex

Male

Name of Child

Muhammad or Muhammed (the handwriting is not clear)

Father’s Name, Address, Race, Religion and Occupation

Abdillahi Omar or Omer Nooh (the handwriting is not clear)

Somalia

Muhammadan

Foreman

Mother’s Name, Race and Religion

Sirag Mirah or Mireh (handwriting unclear)

Somali

Muhammadan

Date of Registration

12.2.59

CERTIFIED that the above is a true extract from the entry (I have this day made) in the Register of Births

(N.B. – Delete words in brackets unless the extract is given at the time of Registration)

Dated this 17^thday of February 1959

Handwritten signature which cannot be deciphered

Registrar of Births and Deaths”

Zain’s birth certificate read as follows:

“A 31506

COLONY OF ADEN

CERTIFIED EXTRACT FROM REGISTER OF BIRTHS PURSUANT TO THE BIRTHS, DEATHS AND MARRIAGES REGISTRATION ORDINANCE, 1955

Date and Place of Birth

25^th May 1961

House No. 32 Usama, Manzilla, Little Aden.

Sex

Female

Name of Child

Zain

Father’s Name, Address, Race, Religion and Occupation

Abdillahi Umar

Somalia

Muhammadan

General Foreman

Mother’s Name, Race and Religion

Sirat Miray

Somali

Muhammadan

Date of Registration

3 June 1961

CERTIFIED that the above is a true extract from the entry (I have this day made) in the Register of Births

(N.B. – Delete words in brackets unless the extract is given at the time of Registration)

Dated this 7^thday of June 1961

(Handwritten signature which cannot be deciphered)

Registrar of Births and Deaths Little Aden”

Fouzia’s birth certificate read as follows:

“A 56870

STATE OF ADEN

CERTIFIED EXTRACT FROM REGISTER OF BIRTHS PURSUANT TO THE BIRTHS, DEATHS AND MARRIAGES REGISTRATION ORDINANCE 1955

Date and Place of Birth

31 January 1965

18 AL …anali St. Little Aden (certificate torn, part showing the rest of the address is missing, it appears that the same address is shown fully on Eman’s certificate and the BP Clinic card referred to below)

Sex

F

Name of Child

Foziya

Father’s Name, Address, Race, Religion and Occupation

Abdillahi Omer Nooh

Somali

Muslem

Clerk

Mother’s Name, Race and Religion

Sirad Mireh Odowah

Somali

Muslem

Date of Registration

4.2.65

CERTIFIED that the above is a true extract from the entry (I have this day made) in the Register of Births

(N.B. – Delete words in brackets unless the extract is given at the time of Registration)

Dated this (day cannot be deciphered)day of February 1965

Handwritten signature which cannot be deciphered

Registrar of Births and Deaths”

Eman’s birth certificate read as follows:

“(digit or letter torn off) 85992

STATE OF ADEN

CERTIFIED EXTRACT FROM REGISTER OF BIRTHS PURSUANT TO THE BIRTHS, DEATHS AND MARRIAGES REGISTRATION ORDINANCE (date torn off)

Date and Place of Birth

7 July 1966

H. NO:18, Al-Mutnabbi, Al-Sa’ada, L/Aden

Sex

F

Name of Child

Iman

Father’s Name, Address, Race, Religion and Occupation

Abdillahi Omer Nooh

Somali

Muslem

Clerk

Mother’s Name, Race and Religion

Sirad Mirreh Odowah

Somali

Muslem

Date of Registration

16.7.66

CERTIFIED that the above is a true extract from the entry (I have this day made) in the Register of Births

(N.B. – Delete words in brackets unless the extract is given at the time of Registration)

Dated this 21st day of July 1966

Handwritten signature which cannot be deciphered

Registrar of Births and Deaths”

The Defendant asserted that Mohamed’s birth certificate was not “contemporaneous” and this was given as a ground for refusal of the passport application. The certificate states that Mohamed was born on 3 February 1959 and the birth was registered on 12 February 1959. I do not consider that a delay of 9 days in registering the birth gives rise to any doubt about the authenticity of the certificate or its contents. The date of the certificate was 17^th February which was 5 days later than the date of registration on 12 February 1959. In my view, the explanation for that is plain from the face of the document which indicates that the certificate may either be issued at the time of registration or subsequently. In this case, the relevant authority decided to issue it shortly after registration. I do not consider that this gives rise to any doubt about the authenticity of the certificate or its contents. I take the same view in respect of the dates on the birth certificates of the other Claimants.

The Defendant queried why the handwritten entries on the certificate appeared to be in a different hand, and ink, to the signature of the Registrar. In my view, the likely explanation is that a civil servant filled out the form and the Registrar then signed it. I do not consider that this gives rise to any doubt about authenticity in respect of any of the certificates.

I examined the original documents closely and I have no doubt that they are authentic. They are in the red print, format and wording of birth certificates typically issued in Britain. They have a raised embossed seal, with the words “Township Authority Little Aden” and a crest, over the Registrar’s signature. Little Aden was the district of Aden where the British Petroleum (“BP”) refinery was based, and a township grew up around it. The Claimants’ father worked for BP and the family addresses on the certificates were in Little Aden. The type of paper used, and the way in which the certificates has become aged and slightly battered with the passing of time, appeared genuine. It was common ground before me that birth registration would very probably have been compulsory when Aden was a British colony and that registration would have operated in a manner similar to the UK.

Even taking into account that the handwriting is unclear in places, there are some inconsistencies in the spelling of the parents’ names in the certificates, and in Zain’s birth certificate, her father’s third name ‘Nooh’ has been omitted. However, the home address and the mother’s name are the same as in Mohamed’s birth certificate two years earlier in 1959. I do not consider that these inconsistencies cast doubt upon the reliability or authenticity of the certificates, for reasons which I address later in my judgment.

Mohamed covered the face of his certificate with transparent soft adhesive plastic and he placed strips of transparent tape on its back, which were now peeling off. The plastic and tape both looked aged. This covering had protected his certificate from the wear and tear which the other certificates had suffered over the years and the document was both intact and legible. However, the Defendant’s internal guidance on passport applications advises against accepting laminated documents in support because lamination makes it more difficult to test whether or not they are genuine e.g. by distinguishing watermarks, feeling the quality of the paper etc. Although Mohamed’s certificate was not laminated in the way that modern documents are, it was covered in the way I have described. However, there was no evidence that the Defendant had conducted authentication tests on the other three certificates, which were not covered, but was somehow prevented from authenticating Mohamed’s certificate in the same way because of its covering. As these were birth certificates, not passports, there were no watermarks. The raised embossed seal was clearly visible and could be discerned by touch on all four certificates. As the tape was peeling off the back of Mohamed’s certificate, it was possible to feel and touch the paper on which the certificate was printed. As there is a civil war ongoing in Yemen, it is unrealistic to imagine that Mohamed would be able to obtain a duplicate copy of his birth certificate from there. For these reasons, I do not agree with the Defendant that this birth certificate should be excluded from consideration because of its covering.

Mr Singh QC asked Mohamed in evidence why the birth certificates of his siblings had stamps on them, whereas his birth certificate did not. Mohamed explained that the stamps were endorsements made by the Ministry of Justice in Aden, authenticating the birth certificates so that they would be accepted by the authorities in the UAE when the family relocated there. Mohamed was in Kuwait at that time and so his birth certificate was not endorsed and submitted with those of his siblings. I accepted his explanation.

In closing submissions, having had the benefit of hearing the Claimants give evidence, Mr Singh QC rightly accepted that the Claimants were indeed the persons named in the birth certificates – this was not a case of impersonation. As I am satisfied that they are authentic birth certificates, I consider that they are compelling evidence in support of the Claimants’ claims that they were born in Aden before 14 August 1968.

The Claimants also relied upon other documentation in support of their claim. The Defendant considered that those documents gave rise to doubts about the identity of the Claimants because of discrepancies in the spelling of names. In my view, these discrepancies were largely explained by linguistic differences between the Somali, Arabic and English languages, and cultural differences between the Somali and British people.

The Claimants adduced a report by Dr Markus Hoehne, University of Leipzig, who is an anthropologist with expertise in Somali culture. Dr Hoehne explained that there are no family names in Somali culture. Names are constructed in the following order: a person’s first name, father’s first name, grandfather’s first name. For example, in the case of the Claimant called Mohamed Abdullahi Omar Nooh - Mohamed is his first name; Abdullahi was his father’s first name; Omar was his grandfather’s first name; and Nooh was his great-grandfather’s first name.

When European authorities register Somali names, they tend to adopt the last name as the family name or surname of the person, in an attempt to adjust them to a European taxonomy of naming. So, for example, when the Claimants’ father, Abdullahi Omar Nooh, was granted a British passport in the Colony of Aden in 1958, the passport officials wrote his name as “Mr A.O.Nooh” on the cover. As Dr Hoehne explains, from a Somali perspective, this does not make sense because ‘Nooh’ was his grandfather’s first name, not his family name. Therefore ‘Nooh’ cannot be treated as the Claimants’ surname.

Dr Hoehne’s evidence was that “to include the great-grandfather’s name into one’s own name is very rare in everyday life in Somalia”. The Claimants gave evidence that sometimes authorities used three names, and sometimes four. They themselves began to use their fourth name - Nooh - more frequently once they moved to the UAE in order to distinguish themselves from others there with similar names to them. In the light of that evidence, I find it unsurprising that some of the Claimants’ documents do not include the name Nooh. I do not consider that this inconsistency calls their identity into question.

Dr Martin Orwin, Senior Lecturer in Somali and Amharic, at the School of Oriental and African Studies, provided a report on the writing and spelling of Somali names. The Latin alphabet was introduced as the official writing system for Somali in 1972; prior to that different writing systems were used. He explained that the Somali language has no standard form. It comprises a set of dialects, and there are variations in the ways in which words are spoken and written. In addition, grammatical and spelling errors are commonplace in written Somali. Dr Orwin observed that the “fact that such spelling errors are common means that at times the spelling of names reflects these, and I have seen people use incorrect spelling consistently and inconsistently for their name”. He said, at [30]:

“Whereas in English it is customary to stick to one spelling of a name, in Somali this is not necessarily the case. My own name, Martin, is spelt by some people with a ‘y’: Martyn. Given consistency of spelling in the UK I would never write my name with a ‘y’ and for official purposes such consistency is well established….This is not to say they are not the same name though. When spoken, there is no difference in pronunciation and the etymology of the name, whether written with ‘i’ or ‘y’ is the same. They are two ways of spelling the same name. Consistency of spelling is not something which has permeated Somali writing and written culture generally. The added complications of Anglicizing Somali-written names, the Romanization of Arabic names, Romanising the spelling of the name in an Arabic-speaking country, etc. can all lead to inconsistent spelling of Anglicizations.”

Thus, the problem of inconsistent spelling is exacerbated when Somali or Arabic names are spelt in an English-speaking context, because of the representation, or lack of representation, of sounds found in Somali and/or Arabic, but not in English. Dr Orwin gave the example of the spelling of the Arabic name Muhammad which is spelt in a number of different ways in English e.g. Muhamad, Muhammad, Mohamad, Mohammad, Mohamed, Mohammed, Mahamad, Mahamed etc. He explained that these are not different names, but simply different anglicised spellings of the same name.

These reports were supported by a document from the CJK Dictionary Institute on the various ways in which Arabic names may be romanised (ARAN document) and a note from John Wedderburn on Arabic transliteration. Romanisation is the process of converting a different writing system, such as Arabic, into the Latin alphabet. Transliteration is the representation of one writing system into a different writing system, sign by sign. Transcription refers to the representation of the sounds of language in a recognized writing system.

The inconsistent spelling of names in the documents in this case illustrates the expert evidence given by Dr Orwin. In the Claimants’ birth certificates, Arab and Somali names were written in an English register in a country where the native language of the local civil servants was Arabic. Their father’s name is variously spelt as ‘Omer/Omar’ and there are inconsistencies in the spelling of their mother’s Somali names.

The first name of the Claimant Mohamed was spelt ‘Muhammed’ in his birth certificate issued by the British authorities in the Colony of Aden in 1959. In his Arabic birth certificate issued by the Republic of Yemen Government in 2013, his name was spelt Mahmood or Mahmoud. In his UAE residence card, his name was spelt ‘Mohammed’. In my view, these are different spellings of the same name of the same person, and do not cast any doubt upon his identity.

As the Claimants explained in their evidence, Somali is not an Arabic language and since 1972 it has been written in the Latin alphabet, not in Arabic script. So when their names were written in Arabic, in the Republic of Yemen and in the UAE, different spellings were given for them. For example, their grandfather’s first name, ‘Omar’, was sometimes spelt ‘Omer’ and their great-grandfather’s name ‘Nooh’ was sometimes spelt ‘Nouh’ or ‘Noh’.

In 2013 Mohamed applied for a copy of his Aden birth certificate from the authorities in Yemen. The document which he received was written in Arabic. It was said to be a translation of his Aden birth certificate. However, it spelt his first name as Mahmoud which is a different name to Mohamed and it spelt his grandfather’s name as Noor not Nooh. In my view, this is another illustration of the difficulties in translation between Somali, English and Arabic.

I also note that in Mohamed’s more recent official documents, including his current passport and Somali identity card, his second name is spelt as ‘Abdullahi’ not ‘Abdillahi’ and his third name as ‘Omar’ not ‘Omer’. As these spellings were also used in his BOC application and his witness statement, I assume that he has adopted these spelling variations for his names.

The Claimants’ father’s name ‘Abdillahi’ was sometimes spelt as ‘Abdullahi’, for example, in a letter from the Somali Embassy dated 7 August 1979 listing family members for the purposes of an application for a residents’ visa in Abu Dhabi. Dr Orwin explained in his report that this is an Arabic name, which is spelt differently in Somali and in English. Anglicised spellings of the name from Somali might be Abdullah, Abdullaah, Abdalla, Abdallah, Abdallahi, Abdulla, Abdullah, Abdullahi, Abdullaahi, Abdulla, Abdille, Abdillaahi, Abdillaah.

The Somali name ‘Iman’ is spelt ‘Eman’ in Arabic, although it is pronounced in the same way. The Claimant who calls herself Eman was given the Somali name ‘Iman’ by her father. Her name was written as Iman in her birth certificate issued by the British authorities in the Colony of Aden in 1966. It was also written as Iman in her father’s passports, where she was listed as one of his dependents. However, she now calls herself ‘Eman’ as she is living and working in an Arabic-speaking country, and applied for her own Somali passports in the name of ‘Eman’. More recently, Eman has begun to use the name ‘Abdullah’ as her second name instead of ‘Abdillahi’. Abdillahi is sometimes misconstrued in Arabic to mean ‘servant of Satan’. In Somali it means “servant of God”. Having considered the oral and written evidence, I do not consider that any of these variations in the spelling of Eman’s name cast doubt upon her identity, when the evidence is considered as a whole.

The Claimant who calls herself Fouzia gave evidence that her name was spelt in a number of different ways in the documents: Foziya (birth certificate); Fauzia (school certificates) and also Fowzia. She explained that the different spellings reflected different ways of writing the same Arabic name in English. A name written in the Arabic alphabet may be written in several different ways in the Latin alphabet. Having considered the oral and written evidence, I do not consider that any of these variations in the spelling of Fouzia’s name cast doubt upon her identity, when the evidence is considered as a whole.

The Claimants also gave evidence about the inconsistencies in the spelling of their mother’s name, which I address below.

I am satisfied that these variations in spelling occurred in part because they were being translated into different languages and in part because consistent spelling is not a feature of Somali culture and different spellings of the same name (which we would label ‘mistakes’) are commonplace.

One of the reasons given by the Defendant for refusing Zain’s application was that in interview she referred to her deceased older sister by the name of Assia instead of Zahra. Zain’s evidence was that although her official name was Zahra, they also called her Assia. She said it was common among Somalis to have another name used by family and close friends. This feature of Somali culture was commented upon by the expert, Dr Hoehne, who described the wide use of nicknames and the use of more than one first name within the family. I accepted Zain’s explanation and do not consider that this casts any doubt upon her identity, when considering the evidence about the family as a whole.

In refusing the applications, the Defendant stated that the discrepancies in the birth dates recorded in the documents cast doubt upon the claimed identity of the applicants. In this context, Dr Hoehne’s evidence concerning the lack of importance of dates of birth and birthdays in Somali culture is of particular importance. He said:

“The lack of importance of birthdays and dates of birth to most Somalis.

7.

Dates of birth are usually not registered in Somali culture. Before the advent of colonialism and also during the colonial period, Somalis, most of whom reside in the countryside, were born “under the tree”. There was no citizen registry covering the population. This only gradually changed in the postcolonial period. Most Somalis were still born without official registration. But when they applied for a passport, a birth date was fixed in the document. However, this date represented an approximation of a person’s age. Unusually, the 1 of January was taken as date and month; the year indicated roughly the age of the person. Somalis normally would reckon birth dates according to certain specific phenomena that occurred around their birth. Older people I interviewed myself in northern Somalia for instanced mentioned that they were born around ‘the time of the measles’ or around the time of a certain drought. Through oral history research, one could find out when, approximately, this would have been. Or people would say ‘I was born in the year when Somalia became independent’ (i.e., 1960).

8.

More recently, since the 1980s, many people would at least know the year in which they were born. One reason was that many Somalis had moved to urban settlements in the post-colonial period, received formal education and began to note down important events in books. Therefore, educated parents would note the year in which a child was born. But confusion about this matter has again increased with the outbreak of civil war in the late 1980s. Private property was destroyed, books and files were lost. Families were dispersed, and often the father or the mother was killed, died of a disease or fled and the children were left on their own or with relatives. During my research in northern Somalia from 2002 onward, I met many young Somalis who had only a vague idea about the year in which they were born. A year or two difference were considered normal (e.g.: ‘I was born 1982 or 1983…).

9.

Birthdays play, according to my insights, no important role in Somali society up until today. Birthdays are not celebrated. And if officials need to register a person with a concrete birthday, a date is given by many people which often is but a rough estimation (as outlined above). Of course, if a person knows his/her exact birthday since the parents had noted it and the notes were preserved, this correct date is given. Beyond that, birthdays play no role in Somali society.”

The Claimants adduced evidence regarding their parents in support of their claim that they were Somalis by ethnicity who were born in Aden before 14 August 1968.

As set out above, the Claimants’ birth certificates described both their parents’ nationality as Somali. According to the Claimants’ witness statements and oral evidence, their father (Abdillahi Omer Nooh) was born in Berbera, British Somaliland and their mother (Sirad Mireh Odowa) was born in Burao, British Somaliland. I shall refer to the parents by their first names, for convenience.

Abdillahi’s place of birth was confirmed by the British passport issued by the Governor and Commander in Chief of the Colony and Protectorate of Aden, in the name of the Crown, on 16 October 1958. It stated that he was born in British Somaliland on 5 November 1933 or 1938 – it is not clear from the handwriting whether the final digit is a ‘3’ or an ‘8’. His “national status” was described as “British Protected Person of Somaliland Protectorate”. I saw the original passport – which was similar in appearance to an old-style British citizen passport as issued in the UK – and I am entirely satisfied that it was authentic. In my view, it is compelling evidence that Abdillahi was born in British Somaliland and had become a permanent resident in Aden by 1958, before the Claimants were born.

According to the oral evidence of Mohamed and Eman, Abdillahi’s father, Omar Nooh, moved to Aden from British Somaliland, as did other Somalis, to benefit from better work opportunities and improved living standards in Aden. Mohamed and Eman believed that Omar Nooh moved to Aden in the 1920’s, and that Abdillahi and his mother, Batton Eliyeh, came from British Somaliland to join his father in Aden when Abdillahi was about 2 months old. They believed that Abdillahi was born in 1939.

Their evidence was that Abdillahi grew up in Aden, and commenced work at the BP Refinery in Aden in 1952, where he worked until he began to work in Abu Dhabi in about 1977/1978. He moved from Aden to Abu Dhabi in 1979, and his wife and children joined him in Abu Dhabi in 1980 (apart from Mohamed who was in Kuwait between 1978 and 1986). At some point, he lost his job in Abu Dhabi and so he sent his wife and younger children to live in Cairo, so that they could continue their education. They later returned to Abu Dhabi. In about 1981 Abdillahi began working in Kuwait as well and he maintained residency in both Abu Dhabi and Kuwait. He died in Abu Dhabi on 25 August 2004. His death certificate stated he was born on 25 August 1939, it seems likely that the year of birth ‘1939’ was provided by his family, and the day and month of 25 August (the same as his date of death) were inserted so that the certificate could be fully completed, in the absence of a known day and month of birth.

A certified extract from the marriage register (issued on 10 May 1980) gives the date and place of Abdillahi’s marriage to Sirad as 8 November 1954, in Aden. It states that he was aged 20 (if correct, he was born in 1933) and Sirad was aged 19. As well as confirming the marriage of the Claimants’ parents, this evidence also confirms that they were residing in Aden in 1954. Mohamed gave evidence that this was a marriage contract which pre-dated the marriage. I accept that there was a marriage contract as well as a marriage ceremony – the dowry of 15 camels is likely to have been a term of the marriage contract. However, the document states that the “date of marriage” was 8^th November 1954, not the date of the contract.

On 7 August 1979, the Embassy of the Democratic Republic of Somalia issued a signed and sealed certificate certifying the family members of Abdillahi Omar Nooh who were residing with him in Aden. The certificate was issued at his request, and according to Mohamed’s evidence, it was required for the purposes of obtaining a visa for the family to reside in Abu Dhabi. The list was as follows (with full stops added for clarity):

“1.

Serat Mireh Odowa. Bero. 1939. Wife.

2.

Zahra Abdullahi Omar. Aden. 1957.

3.

Mohammad Abdullahi Omar Nooh. Aden 1959.

4.

Zain Abdullahi Omar Nooh. Aden. 1961.

5.

Ahmed Abdullahi Omar Nooh. Aden. 1963.

6.

Fowzia Abdullahi Omar Nooh. Aden. 1965.

7.

Eman Abdullahi Omar Nooh. Aden. 1966.

8.

Intisar Abdullahi Omar Nooh. Aden. 1967.

9.

Amal Abdullahi Omar Nooh. Aden. 1972.

10.

Manal Abdullahi Omar Nooh. Aden. 1974.

11.

Mohammad Yousuf Nooh. Bero. 1965.”

I did not find it suspicious or that Abdillahi included his eldest son Mohamed on the list, even though in the previous autumn he had gone to study in Kuwait. He was only 20 years of age, he was financially dependent upon his father, and he was still returning to his family home at regular intervals. It seems reasonable for his father to have proceeded upon the basis that Mohamed was a young member of his family who might well wish to live with the family after they relocated to Abu Dhabi, and so he would need to be included on the visa application form.

The final entry at no. 11 was a cousin who shared the same great-grandfather (Mohamed Harir Yousuf Nooh) as the Claimants. He was included on the list because he was residing with the family in Aden. The Defendant erroneously asserted in his decision letter refusing Mohamed’s application that this cousin was a sibling whom Mohamed failed to mention.

In my view, this certificate provides strong supporting evidence of the birth of the Claimants in Aden to their parents, prior to 1968, and that they were members of the same family. I agree with Mr Berry’s submission that, since it long pre-dates any application for BOC passports, there is no reason to assume it was a self-serving document obtained in order to support the BOC application.

The evidence was that Abdillahi was employed by BP in Aden. This was confirmed by the family’s registration card at the Family Clinic which BP operated for its employees and their dependants. Having seen the original, I am satisfied that this document is authentic. As well as passport-style photographs of the family, it gave the following information:

“BP REFINERY (ADEN) LIMITED

FAMILY CLINIC

DEPENDANTS’ REGISTRATION CARD

Employee’s Name Abdillahi Omer Noor.

Employee No: 0154

Address: 18, Al-Mutnabbi St, L/Aden

Nationality: Arab

DEPENDANTS

NAME	Relationship to Employee	Date/Year of Birth	Signatory of Staff/Labour Office representative	Date of Entry
Sirah Merah	Wife	20 Years	…	24.4.58
Zahra	Daughter	12.4.1957		13.7.61
Mohamed	Son	3.2.1959		13.7.61
Zein	Daughter	25.5.1961		13.7.61
Ahmed	Son	24.10.1963		11.11.63
Fawziah	Daughter	31.1.1965		19.3.65
Eiman	Daughter	7.7.1966		6.8.66
Intisar	Daughter	10.12.67		6.1.68
Amal	Daughter	4.10.67		18.10.72
Manar	Daughter	3.6.1974		2.7.74	”

The BP Family Clinic card confirms the evidence of the birth of the Claimants in Aden to their parents, and their relationships to each other. The reference to Abdillahi being an Arab is contrary to all the rest of the evidence, and I consider it must have been entered in error. Although this reference was relied upon by the Defendant when refusing the applications, Mr Singh QC rightly conceded in closing submissions that the Claimants were Somali by ethnicity, and not Arabs.

In 1960 British Somaliland ceased to be a British Protectorate and became part of the Somali Democratic Republic. I was shown a number of Somali Democratic Republic passports held by Abdillahi:

On 17 April 1995, Abdillahi obtained a certified stamped document from the Embassy of the Somali Republic in Abu Dhabi which was called a “Birth Certificate”. In reality, it was a declaration of his name, date and place of birth and his mother’s name, as stated in his passport no. A0116989. I accepted the Claimants’ evidence that Abdillahi did not have a birth certificate because there was no universal system of birth registration in Somaliland when he was born in the 1930’s. This was confirmed by Dr Hoehne (see above), who also described the lack of importance placed on birth dates in Somali culture, and hence the failure on the part of families to record them. It seems likely that Abdillahi obtained this declaration from the Embassy so that he had an official document to confirm his date of birth, if required. It is not plausible that he obtained it on a false basis in order to advance an application for a BOC passport, as he did not apply for a BOC passport, and his children did not make their applications until many years later.

For the same reasons, I accept that Sirad’s date of birth is uncertain. She did not have a birth certificate because birth registration was not required in Somaliland when she was born and the lack of importance attached to birth dates in Somalia culture meant that birth dates were not recorded by families. There was contradictory evidence as to her age. Her date of birth in her passports was 1938. The BP Family Clinic card stated her date of entry as 24.4.58 and her age is given as 20 years (presumably she was not able to give a date of birth). This is consistent with the birth date of 1938 in her passport. However, it appears to contradict the age on the marriage certificate which was given as 19 years in 1954.

On 17 April 1995, Sirad also obtained a certified stamped document from the Embassy of the Somali Republic in Abu Dhabi which was called a “Birth Certificate”. In reality, it was a declaration of her name, date and place of birth and her mother’s name, as stated in her passport no. A0021096. It stated that “Mrs Serat Mireh Odowa, whose mother’s name is Madifo Jama, was born in Buroa, Somalia in 1938”. I accepted that Sirad obtained this declaration from the Embassy so that she had an official document to confirm her date of birth, if required, and there is no reason to believe that it was falsified.

Three original passports were adduced in evidence.

The Defendant pointed to inconsistencies in the spelling of the Sirad’s name as casting doubt on the Claimants’ identities. According to her passports, her name was Serat Mireh Odowa. In the Claimants’ birth certificates, her first name is variously spelt as Sirag/Sirad/Sirat/Serat. Her second name is her father’s name – Mireh - also spelt Mirreh/Mirai/Miray in the Claimants’ birth certificates. Her third name is her grandfather’s name – Odowa - also spelt Odowah in Fauzia’s birth certificate, and omitted altogether in Zain and Mohamed’s birth certificates. Her names are also spelt inconsistently in the Claimants’ passports.

According to the Claimants’ evidence, Sirad’s names were Somali names. Therefore they would not have had any uniform spelling at the time of her birth. Her birth also pre-dated the introduction of the Latin alphabet in Somali. Her Somali names could be translated into Arabic in several different forms. As Fouzia explained, Sirad/Serat written by a Somali means “light/something glowing”. However, if a Somali pronounces the name to an Arab, he will assume either “Sirag”, which is “light/something glowing” in Arabic, or “Serat” which means “the path”.

This evidence was confirmed by Dr Orwin who devoted several paragraphs to the possible romanisations of the name ‘Sirad’ in both English and Somali, particularly for people living in Arabic-speaking countries. The word ‘Sirad’ does not exist in Arabic, and so in Arabic-speaking countries it might be spelt and pronounced as ‘Siraj’ or ‘Sirag’ when romanised. When the name ‘Sirad’ is anglicised, the final ‘d’ (which is virtually voiceless) is likely to be converted to a ‘t’, producing a romanised spelling of ‘Sirat’ or ‘Siraat’. Finally, the vowel ‘i’ lacks accent, meaning it is less stressed, and so it may sound similar to ‘e’, resulting in possible anglicisations of ‘Serad’, ‘Serat’ etc.

I am satisfied that these variations in spelling in Sirad’s name occurred because of the difficulties of translation from Somali into Arabic and English and because consistent spelling is not a feature of Somali culture and different spellings of the same name are commonplace. The likelihood of inconsistent spelling of her name was increased because she has never been able to read or write. She cannot even write her name. So she would never have been able to spell or write her name for the purposes of official documents, nor would she have been aware that her name was being spelt inconsistently.

In conclusion, on considering the evidence, I am satisfied that Abdillahi was Somali and that he was born in Berbera, British Somaliland. I am not sure of his exact date of birth, because the documentary evidence is contradictory and he had no birth certificate. However, the best evidence is that he was born in the 1930’s. He moved to Aden as a young child and grew up there, obtaining employment at the BP Refinery in 1952. He married Sirad Mireh Odowa in Aden in 1954, who was also Somali and born in Burao, British Somaliland. They lived together in Aden and had 9 children there, including the four Claimants. He later moved to Abu Dhabi to seek work, and the family subsequently relocated there. Sirad spent a period of time living in Cairo with the younger children whilst he was out of work. Abdillahi also worked in Kuwait, holding dual residency. I am satisfied that the uncertainty about Abdillahi’s and Sirad’s dates of birth, any inconsistencies in the spelling of their names and their relocation from Aden does not cast doubt upon the Claimants’ claimed identity, parentage and place and dates of birth.

According to Mohamed’s evidence, he was born in Aden on 3 February 1959. He went to school in Aden between the ages of 7 and 17, and then completed his secondary education in Kuwait between 1978 and 1983. He then undertook a diploma course in communications in Kuwait. While he was studying in Kuwait, he lived with his father’s first cousin, Ahmed Saleh. Whilst studying in Kuwait, he visited his family at regular intervals. He produced a number of educational certificates, which confirmed his date of birth as 1959.

In 1986 Mohamed moved to Abu Dhabi, and has lived there ever since. He provided a copy of his UAE residence permit/visa and a copy of his tenancy agreement in support of his application for a BOC passport. He worked for the UAE Air Defence as a signals operator between 1988 and 2003, as evidenced by his armed forces termination certificate, which gave his date of birth as 1959. He then worked for Spark Establishment as an electronic exchange operator, from October 2001 to 1 December 2017 (as evidenced by a letter from his employer). He is married and has three children. Although the date of his marriage was stated as 2007 in his witness statement, this was contradicted by his oral evidence when he said he got married in his mid-thirties. The latter seemed more likely to be correct since his children’s dates of birth were 1994, 1995 and 1997.

As proof of his identity, Mohamed produced his Somalia national identity card and his current and previous passports, which I was satisfied were authentic.

The Defendant’s representative who interviewed Mohamed in Abu Dhabi found him unconvincing because he was unable to name his parents without reference to the documents which he had with him. Mohamed denied this. He also wrongly identified the counter-signatory on his passport application. After hearing Mohamed give evidence over several days, I found him to be a credible witness who was not shaken in cross-examination. He clearly knew the names and family history of his parents. At interview, he mistakenly recalled that the counter-signatory was Mona Bashir, the family friend and BOC passport holder who advised them on applying for BOC passports. However, I was satisfied on the basis of his oral evidence that his counter-signatory, named Mohamud-G Mohamed, was genuinely well known to him, as he was his wife’s sister’s husband. I have no reason to doubt that this individual is employed as a hydrologist geochemist at the National Drilling Co. in Abu Dhabi. His identity could, of course, be verified by the Defendant, and possibly has been.

On considering the entirety of the oral and documentary evidence, I am satisfied that Mohamed was born in Aden on 3 February 1959 to Somali parents. His date and place of birth and his parentage are reliably documented in his Aden birth certificate. These details are also confirmed in numerous other documents. I found the BP Refinery Family Clinic card and the certificate from the Somali Embassy dated 7 August 1979 particularly strong evidence in support of his claim.

Mohamed referred to the benefits of obtaining a BOC passport, namely, the ability to travel more freely. Because of the breakdown of government in Somalia, Somali passports are not recognised in many countries around the world. Mr Berry produced a copy of the Henley & Partners Visa Restrictions Index 2017 which ranks countries according to the travel freedom that their citizens enjoy, without having to apply for a visa. Somalia has a very low ranking – 100 out of 104.

According to Zain’s evidence, she was born in Aden on 25 May 1961 of Somali parents. She went to school in Aden and she produced two school leaving certificates which showed that she enrolled in October 1970 and left in June 1979 because she was travelling abroad. Her date of birth was given as 25 May 1961 and her nationality Somali. In 1980, she relocated to Abu Dhabi with her family and continued her education there. She was awarded a certificate for passing the High School Examination in 1983, and the certificate gave her date of birth as 25 May 1961.

The Defendant considered that there were discrepancies in these documents because the first two certificates did not use the name ‘Nooh’ whereas the name did appear on the third certificate but spelt ‘Nouh’. For the reasons I have given earlier in my judgment, I am satisfied that the omission and inclusion of the name ‘Nooh’ can be explained, and also the inconsistent spelling. I do not consider that these inconsistencies cast any doubt on their authenticity or Zain’s identity.

As proof of her identity, Zain produced her Somalia national identity card and her previous passports, which I was satisfied were authentic.

I was satisfied that Zain gave a truthful account in her evidence of the reasons why her passports gave a date of birth of 1969, and why she was powerless to correct the mistake until she had separated from her husband. She was questioned at length on this issue and so I had ample opportunity to assess the quality of her evidence and to satisfy myself as to its reliability.

Although I have had regard to the concerns as to Zain’s identity expressed by the Defendant, at interview and in his decision letter, I am satisfied that Zain was born in Aden on 25 May 1961 to Somali parents, on consideration of the entirety of the oral and written evidence. Her date and place of birth and her parentage are reliably documented in her Aden birth certificate. These details are also confirmed in numerous other documents. I found the BP Refinery Family Clinic card and the certificate from the Somali Embassy dated 7 August 1979 particularly strong evidence in support of her claim, since they pre-date any application for a BOC passport.

According to Fouzia’s evidence, she was born on 31 January 1965, in Aden, to Somali parents. She was educated in Aden and she produced school certificates from 1978 and 1979 to confirm this. Curiously, the day and month of her birth were stated to be 30 May not 31 January, but the year was recorded as 1965, consistently with her birth certificate. When the family relocated to Abu Dhabi, she continued her education and she produced further educational certificates which stated that she was born in 1965. A word processing certificate issued in December 1989 gave her date of birth as 1966, which I accept was probably a mistake.

In a letter dated 5 June 2013, the UAE Ministry of Labour confirmed that she had been an employee since 2 September 2000.

As proof of her identity, Fouzia produced her previous passports, which I was satisfied were authentic. As I have set out earlier in my judgment, the variations in the spelling of her first name have been explained and they do not cast doubt upon her identity.

In considering the plausibility of Fouzia’s evidence on this issue, I took into account the further information given by Eman who was in a similar situation. Neither of them are married and so they have to support themselves financially. They are foreign residents in the UAE, and as such are not eligible for any state benefits or a pension on retirement. Private sector work is not subject to the same mandatory retirement age as the public sector, where they both work. However, their age would count against them in finding employment.

On hearing her oral evidence, I was satisfied that Fouzia was telling the truth about the reasons for altering her date of birth in her passport. In considering how I should treat her admitted dishonesty when assessing her claim to this Court, I was guided by the judgment of the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49, per Sir John Dyson SCJ, at [32] – [33]:

“32.

Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant's dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…”

33.

Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA's appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant's lies.”

I am alive to the risk that because Fouzia has lied to the passport authorities and to her employer to gain an advantage in the workplace, she may be willing to lie to the Defendant and to this Court to obtain the benefit of a BOC passport. However, there is a substantial amount of documentary evidence which establishes that she is not lying about her date of birth: her Aden birth certificate, the BP Refinery Family Clinic card; the certificate from the Somali Embassy dated 7 August 1979 and her earlier passports. Furthermore, her claim is supported by that of her siblings, to the extent that they are members of the same family, born in Aden to Somali parents, and relying on the same or similar evidence.

Finally, when interviewed by the Defendant’s representative, Fouzia wrongly identified the counter-signatory on her application form as Mona Bashir, the family friend and BOC passport holder who advised them on applying for BOC passports. She said she did not know who had counter-signed the form. I was satisfied on the basis of her oral evidence that the counter-signatory, named Mohamud-G Mohamed, was genuinely well known to her, as Mohamed’s wife’s sister’s husband. She also has a relative called Mohamed, who is the son of her paternal aunt, and in interview she was not clear which Mohamed had signed the form. In my view, this does not cast doubt upon the essential elements of her claim.

On considering the entirety of the oral and documentary evidence, I am satisfied that Fouzia was born on 31 January 1965, in Aden, to Somali parents.

According to Eman’s evidence, she was born in Aden on 7 July 1966 to Somali parents. She was educated in Aden and moved to Abu Dhabi with her family in 1980. She continued her education in Abu Dhabi and produced a High School examination certificate issued on 20 June 1989, which gave her date of birth as 7 July 1966. A word-processing certificate issued in December 1989 gave her date of birth as 1966, as did an English typing certificate and a Telex certificate which were both issued in 1990.

As proof of her identity, Eman produced her previous passports, which I was satisfied were authentic. As I have set out earlier in my judgment, the variations in the spelling of her first name have been explained and I am satisfied that they do not cast doubt upon her identity.

In passport no. A0010898, which was issued on 12 November 1990, and passport no. A0851839, which was issued on 12 February 2005, Eman’s date of birth was altered, at her request, by a relative working in the Consular Section of the Somali Embassy. Initially it was given as 1970 and then 1971.

Eman’s explanation for the alteration was that it was easier for her to obtain work as a younger person, and she was looking for a better job. She also wanted to extend her working life as she faced mandatory retirement at age 60. As a foreigner in the UAE was not eligible for a pension or any state benefits after retirement. She was not married and had to support herself financially.

In 2012 Eman applied for a further passport in 2012, with the date of birth as shown in her Aden birth certificate, in order to support her application for a BOC passport. Although it would show her true age, she believed that she would also find it easier to obtain work with a British passport, than a Somali passport. Passport P00232335 was issued on 29 October 2012. It set out her name and her mother’s name consistently with her birth certificate, and gave her date of birth as 7 July 1966. On the same date, her Somali ID card was issued, which also gave her date of birth as 7 July 1966.

On hearing her oral evidence, I was satisfied that Eman was telling the truth about the reasons for altering her date of birth in her passport. In considering how I should treat her admitted dishonesty when assessing her claim to this Court, I was guided by the judgment of the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49, per Sir John Dyson SCJ, at [32] – [33].

I am alive to the risk that because Eman has been willing to lie about her date of birth to gain an advantage in the workplace, she may be willing to lie to the Defendant and to this Court to obtain the benefit of a BOC passport. However, there is a substantial amount of documentary evidence which establishes that she is not lying about her date of birth: her Aden birth certificate, the BP Refinery Family Clinic card; the certificate from the Somali Embassy dated 7 August 1979 and her earlier passports. Furthermore, her claim is supported by that of her siblings, to the extent that they are members of the same family, born in Aden to Somali parents, and relying on the same or similar evidence.

I was satisfied by the oral and documentary evidence, taken as a whole, that Eman was born in Aden on 7 July 1966 to Somali parents.

Finally, in January 2013, in preparation for the applications for BOC passports, Mohamed asked the Embassy of Somalia in Abu Dhabi to provide him and the other Claimants with a declaration that they were born in Aden on the dates specified in their Aden birth certificates, despite the inconsistencies in the dates shown in their passports. The Consular Section of the Somali Embassy duly provided a document headed “Declaration” which stated as follows:

“Embassy of the Federal Republic of Somalia

Abu Dhabi

TO WHOM IT MAY CONCERN

Subject: Declaration

The Embassy of the Somali Republic in Abu Dhabi in the United Arab Emirates hereby declares that it has amended correctly the birth dates on the passports of the below mentioned family members who were all born in Aden in Yemen, after presenting their birth certificates. Their names and correct dates of births are as follows:-

1-

Mr. Mohamed Abdullahi Omar NOOH, 3^rd February 1959,

2-

Mrs. Zain Abdillahi Omer NOOH, 25^th May 1961,

3-

Mrs. Fouzia Abdillahi Omar NOOH, 31^st January 1965,

4-

Mrs. Eman Abdillahi Omer NOOH, 7^th July 1966,

This declaration was given according to the personal request of the above mentioned family members who earlier recorded their birth dates differently due to unforeseen circumstances, without any liability on this Embassy towards the rights of others at present and in the future.

Abu Dhabi, 23^rd January 2013

Consular Section of the

Somali Embassy in Abu Dhabi”

The evidential value of this document was limited, since it was self-serving, not contemporaneous, and not based upon an independent investigation of the facts. Taken at its highest, it was an official confirmation of the dates of birth in the Aden birth certificates, based upon a perusal of the certificates. The reference to amending the dates of birth in the passports was not quite accurate, since by 2013 no amendments were made, or needed to be made, to the passports. However, it was official confirmation that those dates of birth in earlier passports which were not consistent with the dates in the Aden birth certificates were incorrect.

I am satisfied that the identity of each of the Claimants is as they claim it to be. They were born in the British Colony of Aden prior to 14 August 1968, and as they are of Somali ethnicity, and are not Arabs (as defined), they did not become nationals of the Republic of Southern Yemen from 14 August 1968. They continued to be CUKCs and became BOCs with effect from 1 January 1983. They are entitled to declarations to that effect.