Fatima Omar Ali Ahmed Al Hashimi, R (on the application of) v Secretary of State for The Home Department

The Claimant applies for judicial review of the Defendant’s decision, dated 5 June 2024, refusing her application for registration as a British Overseas Citizen (“BOC”). Pursuant to an order made by Chamberlain J. on 27 August 2025, the application has been listed as a rolled-up hearing for permission to apply for judicial review, and for an extension of time to file the claim, to be followed by the substantive hearing, if appropriate.

In summary, the Claimant accepts that the Defendant correctly applied domestic law under the British Nationality Act 1981 (“BNA 1981”), but contends that the relevant provisions, which only allow citizenship by descent through the paternal line, not the maternal line, unlawfully discriminate against the Claimant, in breach of Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 8 ECHR. Under Ground 1, the Claimant seeks a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA 1998”). Under Ground 2, the Claimant seeks to exhaust her domestic remedies, prior to making an application under the provisions of the international Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”).

Section 31(6) of the Senior Courts Act 1981 provides that, where the Court considers that there has been undue delay in applying for judicial review, it may refuse to grant permission or relief if it considers that the granting of the relief sought be likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or be detrimental to good administration.

The underlying reason for the stringent time limits in judicial review is that good public administration requires finality, and public authorities need to have certainty as to the validity of their decisions and actions.

CPR r.54.5(1) requires that a claim must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose.

Time runs from the date on which the grounds to make the claim first arose, even if the Claimant was not aware of the grounds at that date: see R v Department of Transport ex parte Presvac Engineering (1992) 4 Admin LR 121.

In Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin), Chamberlain J. observed, at [68]:

“68.

There has been a debate in the literature about whether the date on which ‘grounds to make the claim first arose’ is the date on which the decision was made or the date on which it is communicated. The Court of Appeal held that it was the former in R v Department of Transport ex p. Presvac Engineering Ltd (1992) 4 Admin LR 121. It has been argued that this may fall to be modified in the light of Lord Steyn’s principle in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, [26], that an administrative decision does not have the character of a legal determination until it has been notified to the person it concerns. It is therefore suggested, applying the principles in Burkett, that it is only upon communication that time starts to run: see Auburn, Moffett & Sharland, Judicial Review: Principles and Procedure, §26.35. It is not necessary or appropriate to enter into this debate here, because I am satisfied that, even if there was a legally effective decision on 15 January 2019, there was on the facts a further decision not to alter it following the internal review.”

The Court has the general power under CPR r.3.1(2)(a) to extend time for compliance with CPR r.54.5. However, in the context of judicial review, the importance of acting promptly at all times has been emphasised by the courts: see R v Institute of Chartered Accountants in England and Wales, ex parte Andreou [1996] 8 Admin LR 557. Depending on the facts of the case, the requirement to act promptly may mean that the claim must be filed before the end of the 3 month longstop period.

If the applicant is unaware of the decision, that may amount to a good reason for delay, but that is on the proviso that the applicant acts expeditiously once they become aware of the decision: see R (BC) v Surrey County Council [2025] EWCA Civ 719, (2025) 28 CCL Rep 391, at [17].

In Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983, Lord Lloyd-Jones gave guidance on the factors to be considered when determining an application to extend time, stating, at [38]:

“…. it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest.”

Lord Lloyd-Jones added, at [39]:

“…. even where there is considered to be a good reason to extend time, leave may nevertheless be refused on grounds of prejudice or detriment. By contrast, if, without taking account of the absence of prejudice or detriment, it is concluded that there is no good reason for extending time, leave will be refused and their absence can never operate to the benefit of a claimant.”

Errors by the applicant’s lawyers will not generally amount to a good reason for delay: R v Secretary of State for Health ex parte Furneaux [1994] 2 All E.R. 652; R (BC) at [17].

In the past, delay arising out of the need to obtain legal aid was regarded as a sufficient justification for delay (R v Stratford-upon-Avon DC ex parte Jackson [1985] 1 WLR 1319). However in R (Kigen) v Secretary of State for the Home Department [2016] 1 WLR 723, which concerned an application for reconsideration of the refusal of permission, Moore-Bick LJ said, at [18]:

“…. Moreover, the change in the climate of litigation which has come about since that case was decided makes it no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. It may still be a factor that can be taken into account (see R(Sacker) v West Yorkshire Coroner [2003] 2 All ER 278), no more…..”

In AP v Tameside Metropolitan Borough Council [2017] 1 WLR 2127, which concerned an application under the HRA 1998, King J. stated, at [89]:

“… delay in the grant of legal aid is not normally a factor which will persuade a court to extend the three-month issue period for the purposes of a judicial review claim: see R(Kigen) v Secretary of State for the Home Department [2016] 1 WLR 723.”

On 1 July 2021, the Claimant’s previous solicitors, Aden & Co. Solicitors, applied to the Defendant for registration as a BOC, together with her brother, Mohamed Al Hashimi.

Under cover of a letter dated 16 March 2022, the Defendant sent a decision letter dated 16 February 2022, which refused the application, but advised of the right to apply for a review.

Aden & Co. applied for a review of the Defendant’s decision but they did not finally complete and send the relevant application forms and fees until 6 November 2023. No response was received from the Defendant and so Aden & Co. sent a reminder letter to the Defendant on 11 June 2024.

By a letter dated 5 June 2024, the Defendant notified the Claimant’s brother that the decision to refuse the application was correct and there were no grounds to reopen it. It is common ground that the letter was intended to address the Claimant’s application as well.

According to the first witness statement of Ms Kate Lewis, solicitor at Aden & Co., the Defendant’s letter of 5 June 2024 was not received by Aden & Co. until 9 July 2024. I accept that 9 July 2024 was the date of receipt because it was date-stamped by Aden & Co. as “Received – 9 July 2024”. I consider it is likely that, although the decision letter was drafted on 5 June 2024, there was an administrative delay in finalising and/or posting it. That is what occurred in 2022, when the Defendant’s decision letter was dated 16 February 2022, but not sent until a month or so later, on 16 March 2022. The Defendant has not adduced any contrary evidence on the date of posting. On the balance of probabilities, I find that the Defendant posted it a few days prior to 9 July 2024.

Aden & Co. advised and took instructions from the Claimant and her brother. Both of them wished to pursue a legal challenge. Aden & Co. ascertained that they would be eligible for legal aid funding but Aden & Co. did not have a legal aid contract. Ms Lewis states that it was difficult to find a solicitor with a legal aid contract with suitable experience in this specialist field and she was not able to do so until September 2024, with the assistance of Counsel.

Ms Lewis sent a pre-action protocol letter on 16 September 2024, in which she explained that the decision letter had not been received until 9 July 2024. The Defendant responded on 25 September 2024, resisting the claim, and identifying that it was made out of time.

Mr Stefan Vnuk, a solicitor at the Coram Children’s Legal Centre, was first contacted by Aden & Co. on 11 September 2024. He was advised by them that the deadline for filing the claim was 8 October 2024. He had discussions with Ms Lewis and Counsel and Ms Lewis provided him with documentation. He received confirmation that the Claimant and her brother wished to instruct him on 6 October 2024. He applied for emergency legal aid on 6 October 2024, expecting to get a positive decision on 7 October 2024, and then filing the claim on 8 October 2024. However, emergency legal aid was refused, and the refusal was upheld on review on 16 October 2024.

Mr Vnuk also submitted a substantive funding application on 23 October 2024. The application was refused on 7 November 2024. Mr Vnuk appealed and sent a further advice from Counsel on 13 December 2024.

The legal aid authorities reconsidered the merits of the application and granted legal aid funding on 23 December 2024, without proceeding to an appeal. Mr Vnuk was away on leave over the holiday period, and only returned on 6 January 2025. He instructed Counsel on 8 January 2025 and also sought a statement from Ms Lewis about the delay. The claim was filed in the Administrative Court on 17 January 2025.

The Claimant submitted she was not aware of the negative review decision until 9 July 2024. The key reasons for the delay were the difficulty in finding a legal aid solicitor and then in securing legal aid funding. Neither the solicitors nor the Claimant were at fault. The solicitors sent a pre-action protocol letter. The delay has not caused any detriment to the Defendant. The issues are important and the case is strong. This is a case where there is continuing illegality.

The Defendant submitted that the claim was hopelessly out of time. The Claimant had to provide an objectively good reason for the delay (Maharaj, at [38]). The Claimant’s explanation related primarily to difficulties in obtaining legal aid which is not an answer. It is a factor which may be taken into account, but no more. It cannot be used as a trump card.

The Claimant’s application to be registered as a BOC has proceeded slowly. The Claimant’s mother was a BOC as she was born in the British Colony of Aden. BOC status only passed by descent through the paternal line. The initial application was made on 1 July 2021; a negative decision was made on 16 February 2022; an application for reconsideration was made on 6 November 2023; and a negative review decision was made on 5 June 2024. The claim was not filed until about 7 months later, on 17 January 2025.

In my judgment, the review decision under challenge was made by the Defendant on 5 June 2024, and the grounds for judicial review arose at that date, not at the date of receipt by Aden & Co. on 9 July 2024. This analysis is consistent with the wording of CPR r.54.5(1) and the authorities which bind me (see paragraphs 5 to 7 above). There is no authority that the Anufrijeva principle applies in these circumstances. I observe that it is commonplace for courts and public bodies to make decisions in writing which are only communicated to the persons affected at a later date. The issue that arises is whether delayed communication has unfairly prejudiced the person affected, and if so, what relief should be given.

I consider that the Defendant’s delay in posting the letter of 5 June 2024 was unfairly prejudicial to the Claimant, given the difficulties she faced in obtaining legal aid, and she should be granted an extension of time to at least 8 October 2024 to reflect that.

In my view, Ms Lewis’ difficulty in finding a legal aid solicitor willing and able to act for the Claimant was an objectively good reason for delay in July to September 2024. This is a highly specialist area of nationality law and the Claimant is a foreign national who resides overseas. The Claimant is impecunious and could not afford to pay for private legal representation. She has difficulty in obtaining regular work because employers in the United Arab Emirates (“UAE”) where she resides are reluctant to sponsor visas for Somali nationals, which is one of the reasons why she wishes to obtain a BOC passport.

Ms Lewis acted properly in sending a pre-action letter to the Defendant once she had found a legal aid solicitor who was willing and able to take on the case.

Once Mr Vnuk had instructions to act, and was satisfied as to the Claimant’s eligibility, he took all necessary steps to progress the application for legal aid. It was not his fault that legal aid was not granted until 23 December 2024. I have carefully considered whether Mr Vnuk ought to have advised the Claimant to make a protective application for judicial review to the Court, explaining the delay in obtaining legal aid and asking for a stay until the funding position was resolved. I accept Mr Vnuk’s explanation that he could not properly advise the Claimant to file a protective claim without legal aid as she would be exposed to the risk of an adverse costs order which she would not be able to meet. In reaching this conclusion, I have taken into account that, before I raised this point at the hearing, the Defendant did not suggest that the Claimant should have filed a protective claim, nor did the Defendant suggest at any stage that she would have consented to a stay and not pursued a claim for costs. This is not a criticism of the Defendant, but it is relevant to the assessment of the risk of an adverse costs order.

It was unfortunate that legal aid was only granted at the beginning of the holiday period, on 23 December 2024, and that Mr Vnuk was away on leave until 6 January 2025, but Mr Vnuk acted speedily on his return. Counsel drafted the papers promptly. In my view, there was no unreasonable delay once legal aid was granted.

In the light of the authorities on legal aid cited above, the difficulty in obtaining legal aid funding was an objectively good reason for the delay. Whether it amounts to a sufficient reason for an extension of time depends upon the overall assessment of the competing factors.

In my view, the delay of over 7 months between the date of the decision and the date of filing, is significant. However, I do not consider that the delay is the result of any fault on the part of the Claimant or her legal representatives.

The Defendant has not asserted any hardship, prejudice or detriment as a result of the delay, and she was right not to do so.

The Claimant submitted that the discriminatory statutory provisions which the Claimant seeks to challenge remain in force and are a continuing illegality. She submitted that this is a factor to take into account in deciding whether to grant an extension.

The Claimant relied on R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin), in which Kerr J. took into account the ongoing breach of the Working Time Regulations 1998 when deciding whether or not to grant relief (at [142]). That case is of limited relevance because it did not concern delay in filing a claim.

The Claimant also relied upon R (Johnson) v Secretary of State for the Home Department [2017] AC 365 in which the Supreme Court rejected the Court of Appeal’s conclusion that the denial of automatic citizenship was a one-off event that happened at birth, before the HRA 1998 came into force, and therefore there was no violation of Convention rights. The Supreme Court, at [28], applied the Strasbourg concept of a “continuing situation which operates by continuous activities by or on the part of the state to render the applicant a victim”. The Supreme Court held that the denial of citizenship to Johnson “had a current and direct effect upon the claimant who is currently liable to action by the state, in the shape of deportation, as a result”. Even if the Court has jurisdiction under the HRA 1998 (which is in dispute), I consider that the Strasbourg concept of a continuing situation is separate both in scope and purpose from the time limits imposed by Member States for filing challenges to violations of Convention rights. Such time limits are, in principle, lawful and are not a breach of Article 6 ECHR.

The position in domestic law was confirmed by the Court of Appeal in R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199, which concerned a challenge to legislation which raised the pension age for a cohort of women. The Court held, at [124]:

“Unlawful legislation is not a continuing unlawful act in the sense that the time limit for challenging it by way of judicial review rolls forward for as long as the legislation continues to apply. If that were the test, there would effectively be no time limit for challenging primary or secondary legislation or for that matter administrative conduct which continues to affect a claimant unless or until the action is withdrawn or revised…. There is no continuing series of acts here. The adoption of each Pensions Act affecting the Appellants’ pension age was a single act which was completed for this purpose at the latest when the legislation was brought into effect.”

In this case, the Claimant is challenging a specific decision made by the Defendant to refuse her application for citizenship and the time limits in CPR r.54(5)(1) apply to that challenge. The legislation does not preclude the Claimant from making another application for registration at a later date, which she may seek to do, particularly if there has been a change of circumstances, such as a change to the law or government policy.

However, in deciding whether or not to grant an extension in this claim, it is important to bear in mind that the allegedly discriminatory legislative scheme continues to have a significant impact upon the Claimant, and upon others who are in a similar position. In my view, the claim arguably has merit and there is a public interest in determining the issues now, rather than requiring a fresh claim to be issued at some later date.

Taking into account all these factors, I have concluded that an extension of time to 17 January 2025 for filing the claim ought to be granted.

The Claimant’s immigration status is not materially in dispute.

The Claimant was born in the UAE on 30 December 1981, and continues to reside there. Her brother Mohamed was born in Aden, Yemen on 18 June 1980.

The Claimant is a national of Somalia, and has a Somali passport but she has never lived in nor visited Somalia.

The Claimant’s connection with the UK is that her mother, Zahra Yousuf Ahmed Al Hashimi, was born in the former Colony of Aden on 1 April 1958. She was a BOC by birth. She held a BOC passport issued on 28 November 2012. She died on 2 January 2024.

The Claimant’s father was born in Hargeisa, Somaliland in about 1949. The Claimant’s parents were divorced when she was very young and she had no further contact with him.

Section 4 of the British Nationality Act 1948 (“BNA 1948”), which came into force on 1 January 1949, stated, so far as is material:

“Subject to the provisions of this section, 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…..”

Aden was a Crown Colony as at 1 January 1949, which was the date of commencement of BNA 1948. So from 1 January 1949, every person born in the Colony of Aden became a Citizen of the United Kingdom and Colonies (“CUKC”). Citizenship initially included a right of abode.

Section 5 BNA 1948 made provision for CUKC status to be acquired by descent from a CUKC father, but not a CUKC mother. It stated:

“5(1) Subject to the provisions of this section, a person born after commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of his birth….”

In Romein v Advocate-General for Scotland [2018] UKSC 6, [2018] AC 585, at [4] – [8], Lord Sumption set out the legislative history of the “exclusion of claims to British citizenship by descent through the female line” which he described as “a curious survivor of redundant social and political priorities”.

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. Following independence, CUKCs did not automatically acquire South Yemeni nationality, as they did not qualify as ethnic “Arabs”, and so they continued to hold British citizenship (see R (Hassan) v Secretary of State for the Home Department [2019] EWHC 1288 (Admin), at [2] and [14] – [16]).

In Hassan, which concerned a group of CUKCs applying for British citizenship, I summarised the evidence as follows:

“119.

In my view, the Claimants’ applications had to be considered in their unique historical and political context. They were ethnic Somalis as their parents or grandparents originally came from British Somaliland, which was a British Protectorate and so they had the status of British Protected Persons. In the first half of the twentieth century, they were offered the opportunity to migrate to the British Colony of Aden, in Yemen, to provide a labour force for the busy Port and BP Oil Refinery. They settled in Aden, and married and raised their children there. For convenience, I shall call them ‘Aden Somalis’. Those who were born in Aden, such as these Claimants, automatically acquired full British citizenship (CUKC) which they passed on to their children, through the male line. However, the evidence in these claims, and other cases concerning Aden Somalis which have been heard in this court (Footnote: ¹), indicates that British passports were not routinely applied for, or issued, during the era of colonial rule.

120.

When British colonial rule ended in Aden, Somalis living in Aden faced an unusual predicament. Generally, inhabitants of Aden ceased to be CUKCs and became citizens of South Yemen. But Aden Somalis did not automatically become citizens of the state in which they had been born and resided all their lives, because they were not Arabs by ethnicity, which was a condition of citizenship under Southern Yemeni nationality law. During this period, if they needed a passport, they could usually only obtain one from the Somali Embassy.

121.

Moreover, in the decades after independence, many Aden Somalis migrated to the UAE, to escape from the extreme economic and social problems which they experienced in the communist state of South Yemen. In order to migrate, they needed a passport or travel document. Frequently they could only obtain such documentation from the Somali Embassy.

122.

Even those Aden Somalis who have become long-term residents in the UAE have no prospect of obtaining citizenship in the UAE. They are a migrant labour force in the UAE, and their continued residence in the UAE is dependent upon the willingness of the UAE authorities to grant them work visas, and their continued ability to work or to become financially self-sufficient.

123.

Many of the second or third generation Aden Somalis have no links to Somalia, and never go there. Somalia has not been seen as a desirable relocation destination, with its struggling economy, chaotic administration, and dangerous conditions, particularly from the commencement of the civil war in 1991. Many of these problems continue to the present day, with some regional variations.

124.

Following the settlement of the judicial review claim in [R(Botan) v Secretary of State for Foreign and Commonwealth Affairs CO/1484/2009] in 2009, the Defendant accepted that Aden Somalis who had not acquired Southern Yemeni nationality when Aden became independent, continued to be CUKCs, and so became BOCs following the BNA 1981.”

The Immigration Act 1971 (“IA 1971”) placed the right of abode on a statutory basis and limited it to full British Citizens and some categories of Commonwealth Citizens. Under these provisions, the Claimant’s mother did not maintain or acquire a right of abode. Section 2 (which was in force until 1 January 1983) provided (so far as is material):

“2 (1) A person is under this Act to have the right of abode in the United Kingdom if –

(a)

he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(b)

he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had citizenship at the time of the birth or adoption, and the parent either –

….”

The BNA 1981 came into force on 1 January 1983, shortly after the birth of the Claimant and her brother. It redefined British nationality and reclassified CUKCs into three new categories of citizenship: (1) British Citizen, (2) British Dependent Territories citizen (since renamed British Overseas Territories Citizen) and (3) BOC.

Section 26 BNA 1981 provided:

“26.

Any person who was a citizen of the United Kingdom and Colonies immediately before commencement and who does not at commencement become either a British Citizen or a British Dependant Territories Citizen shall at commencement become a British Overseas Citizen.”

By application of section 26 BNA 1981, the Claimant’s mother became a BOC. If her children had been able to acquire CUKC status by descent through their mother, prior to the BNA 1981 coming into force, they too would have become BOCs. They would not have been eligible to become British Citizens or British Dependant Territories Citizens as they lacked a UK right of abode or equivalent right in a British Dependant Territory.

The BNA 1981 was amended by the Nationality Immigration and Asylum Act 2002 (“NIAA 2002”) on 30 April 2003. The new section 4C BNA 1981 is concerned with acquisition of citizenship by registration of certain persons born between 1961 and 1983 and materially provides:

“(1)

A person is entitled to be registered as a British citizen if –

(a)

he applies for registration under this section, and

(b)

he satisfied each of the following conditions.

(2)

The first condition is that the applicant was born before 1 January 1983.

(3)

The second condition is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies –

(a)

under section 5 of, or paragraph 3 of Schedule 3 to, the 1948 Act if assumption A had applied,

…..

(3A)

Assumption A is that –

(a)

section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father,

and

(b)

references in that provision to a father were references to the applicant’s mother.

…

(4)

The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 …had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.

(5)

For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to “a citizen of the United Kingdom and Colonies by descent only” includes a reference to a female person who became a citizen of the United Kingdom and Colonies by virtue of –

(a)

section 12(2), (4) or (6) only of the 1948 Act.

(b)

section 13 (2) of that Act

(c)

paragraph 3 of Schedule 3 to that Act, or

(d)

section 1(1)(a) or (c) of the British Nationality (No.2) Act 1964.”

The Claimant and her brother met the first two requirements of section 4C BNA 1981 as they were born before 1 January 1983 and would have been CUKCs by descent had the previous law allowed for mothers to pass on their nationality. However they could not fulfil the third condition as they would not have had a right of abode in the UK by virtue of section 2 of the IA 1971.

The Nationality and Borders Act 2022 (“NABA 2022”) made further amendments to the BNA 1981 to address the historical inability of certain mothers to transmit citizenship but these amendments only relate to British Overseas Territories mothers, not BOC mothers. Section 1 came into force on 28 June 2022 and materially states:

“PART 1

NATIONALITY

British overseas territories citizenship

1.

Historical inability of mothers to transmit citizenship

(1)

Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.

(2)

After section 17 insert-

“17A Registration: remedying inability of mothers to transmit citizenship

(1)

On an application for registration under this section, a person

(“P”) is entitled to be registered as a British overseas territories citizen if the following three conditions are met.

…”

The Claimant and her brother do not qualify for registration under these provisions because neither they nor their mother were British Overseas Territories Citizens.

The Defendant’s decision dated 16 February 2022 refused the application to register as a BOC for the following reasons:

“A person applying under section 4C of the British Nationality Act 1981 is expected to meet certain requirements prior to making the application, i.e. you:

1.

must have been born before 1 January 1983; and

2.

would have become a citizen of the United Kingdon and Colonies by descent, if before 1 January 1983 women had been able to transmit British nationality in the same way as men, and

3.

Had you been a citizen of the United Kingdom and Colonies, would have had the right of abode in the United Kingdom and have become a British Citizen on 1 January 1983.

Your mother was born on 01 April 1958 in Aden Colony. At birth she was a Citizen of the UK and Colonies under section 4 of the British Nationality Act 1948 (BNA 1948). As she did not hold the Right of Abode, on 1 January 1983, she became a British Overseas Citizen.

You were born 30 December 1981 in the United Arab Emirates.

If women had been able to pass on citizenship in the same way as men, you would have become a CUKC under section 5(1) of the BNA 1981. However, you would not have held an entitlement to the right of abode under the Immigration Act 1971.

The right of abode was only held by those who were:

1.

citizens of the UK and Colonies by birth, adoption, naturalisation or registration in the United Kingdom.

2.

citizens of the UK and Colonies born to, or legally adopted by, a parent who was adopted, naturalised or registered in the UK at the time of the birth or adoption.

….

As such you do not meet the requirements to be registered under section 4C.”

The Claimant applied for reconsideration on 6 November 2023, and the submissions in support correctly made the point that the Defendant had not addressed the discriminatory effect of the current provisions.

The Defendant’s reconsideration decision, dated 5 June 2024, upheld the previous decision for the same reasons and added:

“Very careful consideration has been given to your submissions … but the situation remains as above. To be registered under 4C a person must be born prior to 1/1/83. Your client was born in ….1981. Her father was born in Somalia in 1949. Her mother was born in the Yemen in 1958. Your client’s mother was a CUKC under Section 4 of the British Nationality Act 1981 and was able to retain her CUKC status after Yemen’s independence. However, as she did not hold a Right of Abode under the 1971 Immigration Act your client’s mother did not become a British Citizen under the British Nationality Act 1981 but instead became a BOC under s.26 of the 1981 Act.

If a woman had been able to pass on her status your client may have become a CUKC …. but he also would have no entitlement to Right of Abode under Section 2 of the 1971 Immigration Act so would not have become a British Citizen under the BNA 1981.

Therefore having reviewed the consideration given to your clients application and the decision made on it, I am satisfied that the correct procedures were followed and the correct decision was taken to refuse.”

Again, the Defendant did not address the Claimant’s complaint that the provisions were discriminatory.

The Claimant submitted that the refusal to register the Claimant as a BOC amounted to unlawful discrimination under Article 14 ECHR, read together with Article 8 ECHR.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In Re McLaughlin [2018] 1 WLR 4250, Lady Hale PSC identified four questions, at [15]:

The Claimant submitted that the circumstances fell within the ambit of private life under Article 8 ECHR.

By section 5 BNA 1948, there was a discriminatory difference in treatment, on grounds of gender, between a child whose father was a CUKC, who acquired nationality by descent, and a child whose mother was a CUKC, who could not acquire nationality by descent. That resulted in a difference in treatment when the BNA 1981 came into force and CUKCs became BOCs. Subsequent amendments to the BNA 1981 have removed the discrimination for those applying for registration as British Citizens and British Overseas Territories Citizens but not BOCs. Thus, for the purposes of Article 14, the difference in treatment is in part based upon “sex” and in part “other status”. The Claimant submitted that there was no objective justification for the difference in treatment.

The Defendant submitted that there was no differential treatment on the basis of sex. The amendments by the NABA 2022 draw a distinction based on BOC mothers and mothers who are British Overseas Territories Citizens, which is not an identifiable characteristic within the meaning of Article 14. In the alternative, the difference in treatment between the status of the two categories is objectively justified because of the differences between them.

The Defendant submitted that there was no jurisdiction to determine the claim under the HRA 1998 and the ECHR, under Article 1 ECHR and the relevant case law.

In response, the Claimant submitted that the Defendant was applying too strict a test on jurisdiction. Furthermore, it was inconsistent for the Defendant to raise the issue of jurisdiction. Jurisdiction was not a ground relied upon in the decision itself, nor in the Summary Grounds of Defence settled by previous counsel. In applications to the CEDAW Committee, by persons outside the UK raising similar issues to this claim, the UK Government has submitted that the applicants could and should have pursued remedies under the HRA 1998 and the ECHR before applying to the CEDAW Committee. Finally, Tom Pursglove MP, Parliamentary Under-Secretary of State for the Home Department, stated when addressing the Public Bill Committee on the Nationality and Borders Bill on behalf of the Government, that there were remedies for historical unfairness and discrimination in the ECHR (Hansard Nationality and Borders Bill Deb 19 October 2021, col. 196).

By Article 1 ECHR, Convention rights extend to everyone within the “jurisdiction” of the signatory state. The concept of jurisdiction is essentially territorial. For present purposes, the signatory state and territorial area is that of the United Kingdom of Great Britain and Northern Ireland. The reach of the HRA 1998 is the same as the ECHR.

In Al-Skeini v UK (2011) 53 EHRR 18, the ECtHR set out general principles on jurisdiction under Article 1, as follows:

“130.

Article 1 of the Convention reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

 As provided by this article, the engagement undertaken by a contracting state is confined to “securing” (“reconnaître” in the French text) the listed rights and *647freedoms to persons within its own “jurisdiction”.⁵⁸ “Jurisdiction” under art.1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.⁵⁹

(ia)

General principles relevant to jurisdiction under article 1 of the Convention: the territorial principle

131.

A state’s jurisdictional competence under art.1 is primarily territorial.⁶⁰ Jurisdiction is presumed to be exercised normally throughout the state’s territory.⁶¹ Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of art.1 only in exceptional cases.⁶²

132.

To date, the Court in its case law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the state was exercising jurisdiction extra-territorially must be determined with reference to the particular facts.

(ib)

General principles relevant to jurisdiction under article 1 of the Convention: state agent authority and control

133.

The Court has recognised in its case law that, as an exception to the principle of territoriality, a contracting state’s jurisdiction under art.1 may extend to acts of its authorities which produce effects outside its own territory.⁶³ The statement of principle, as it appears in Drozd and the other cases just cited, is very broad: the Court states merely that the contracting party’s responsibility “can be involved” in these circumstances. It is necessary to examine the Court’s case law to identify the defining principles.

134.

First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.⁶⁴

135.

Secondly, the Court has recognised the exercise of extra-territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the government of that territory, it exercises all or some of the public powers normally to be exercised by that government.⁶⁵ Thus where, in accordance with custom, treaty or other agreement, authorities of the contracting state carry out executive or judicial functions on the territory of another state, the contracting state may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial state.⁶⁶

136.

In addition, the Court’s case law demonstrates that, in certain circumstances, the use of force by a state’s agents operating outside its territory may bring the individual thereby brought under the control of the state’s authorities into the state’s art.1 jurisdiction. This principle has been applied where an individual is taken into the custody of state agents abroad.

137.

It is clear that, whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation under art.1 to secure to that individual the rights and freedoms under s.1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.⁶⁷

(ic)

General principles relevant to jurisdiction under article 1 of the Convention: effective control over an area

138.

Another exception to the principle that jurisdiction under art.1 is limited to a state’s own territory occurs when, as a consequence of lawful or unlawful military action, a contracting state exercises effective control of an area outside that national territory…..”

In Smith v Ministry of Defence [2014] AC 52, Lord Hope commented upon the guidance given at [131] – [132] in Al-Skeini, as follows:

“30.

One can take from these paragraphs two important points. First, the word “exceptional” is there not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extraterritorially. It is there to make it clear that, for this purpose, the normal presumption that applies throughout the state’s territory does not apply. Secondly, the words “to date” in para 132 indicate that the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extraterritorially is not closed. In Catherine Smith, para 303 Lord Collins JSC said that Bankovic made it clear in paras 64 and 65 that article 1 was not to be interpreted as a “living instrument” in accordance with changing conditions. That can no longer be regarded as an entirely accurate statement. The general principles are derived from the application to particular facts of the requirement of jurisdictional competence. The particular facts to which those principles must now be applied may be the product of circumstances that were not foreseen by the framers of the Convention. But that is no reason to disregard them if they can be shown to fall within the general principles relevant to jurisdiction under article 1.”

At [37], Lord Hope referred to the description of state agent authority and control in Al-Skeini, at [137], and observed:

“I do not read the first sentence of this para as adding a further example to those already listed in paras 134-136. No further cases are cited in support of it, which the court would have been careful to do if that were the case.”

The Defendant relied upon the Court of Appeal’s judgments in Secretary of State for the Home Department v Abbas [2018] 1 WLR 533 and R3 v Secretary of State for the Home Department [2023] EWCA Civ 169.

In Abbas, Burnett LJ held:

“23.

I turn briefly to the question of the jurisdiction of the ECHR. I accept Ms Giovannetti's submission that the applicant (and his wife and young children) were not within the jurisdiction of the United Kingdom for the purposes of article 1. That provides: “The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.”

24.

The consistent approach of the Strasbourg court to the question whether someone is within the jurisdiction of a contracting state for the purpose of article 1 is to emphasise that it is primarily territorial. However, in exceptional circumstances acts producing effects outside the territory of a contracting state may constitute an exercise of jurisdiction: see Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 131. None of the exceptions thereafter identified by the Strasbourg court has any bearing on the facts of this case.

25.

In article 8 cases involving family life, even though the spouse or child seeking entry to the territory of a contracting party will be outside that territory, members of the family whose rights are affected are undoubtedly within it. That provides the jurisdictional peg. I have already indicated why that does not read over to private life claims, so no analogous argument relating to jurisdiction can succeed. No other argument to suggest that the applicant and his family were within the jurisdiction of the United Kingdom when making the application for entry clearance could prosper in the face of the decisions of the Grand Chamber of the Strasbourg court in Bankovic v Belgium (2001) 44 EHRR SE5 and Al-Skeini.”

The conclusion reached by the Court of Appeal in Abbas was echoed subsequently in R3, where the claimant was deprived of his British citizenship because of his association with Al Qaeda. At the time of the decision, he was living abroad, but he was born in London, lived there for many years, and had family in the UK. The Court of Appeal reviewed the authorities on territorial jurisdiction at [56] – [79]. It concluded that there was strongly persuasive authority that the claimant was not within the jurisdiction for the purposes of Article 1 when the decision was made, despite his connections with the UK, and therefore he could not rely on Article 8 ECHR in his appeal against it.

In R (Ali) v Upper Tribunal (Immigration and Asylum Chamber) [2024] EWCA Civ 372, [2024] 1 WLR 5097, the Court of Appeal allowed an appeal against refusal of permission to appeal by a Somali national who had been granted indefinite leave to remain with his family when he was a child, but lost his travel documents when travelling abroad, and was refused re-entry to the UK. On the issue of jurisdiction, Andrews LJ (at [39]) distinguished the claimants in Abbas on the basis that “they were nationals of another state who had not established a private or family life in the UK …. there was no jurisdictional connection for private life purposes. The impact on them was purely extra-territorial …”. In contrast, the claimant had a pre-existing private life in the UK.

In this case, the Claimant and her solicitor explain in their evidence that the Claimant accepts that she has no right of abode in the UK and she does not seek to reside in the UK. Having a BOC passport, rather than a Somali passport, would make a significant difference to her prospects of employment in the UAE, because employers are reluctant to sponsor a Somali national for a visa. She has been unable to secure employment since March 2024. Furthermore, nearly all countries require Somali nationals to obtain a visa, which is a costly and lengthy process with no guarantee that it will be granted. In contrast many countries will accept BOC passport holders without a visa, or will grant a visa on arrival. The Claimant would also have the benefit of consular protection from the UK Government when travelling abroad.

Although there is no Convention right to citizenship, I accept that the issue of a passport, and the benefits that may flow from it, can fall within the ambit of a person’s private life under Article 8 ECHR. In R (Johnson) v Home Secretary [2016] UKSC 56, [2017] AC 365, Lady Hale PSC reviewed the authorities at [24] – [27], and concluded that the denial of citizenship, which has such an important effect on a person’s social identity, was sufficiently within the ambit of Article 8 ECHR to trigger the application of the prohibition of discrimination under Article 14 ECHR. However, the claimant in Johnson was within the jurisdiction of the UK when the decision was taken, and no question arose under Article 1 ECHR.

Applying the authorities, I have concluded that the jurisdictional threshold has not been met. The Claimant has at all times resided outside the United Kingdom and she was outside its territory when the challenged decision was made. She has no family or private life in the UK and she will not secure a right of abode even if a BOC passport were to be issued to her. The impact of the decision upon her private life - employment, visas, travel - is and always will be entirely outside the UK.

The Claimant submits that jurisdiction arises from the fact that the decision was made by a UK Minister, in the UK, under UK legislation, who has exclusive control over the Claimant’s application to be registered as a BOC, because of her historic link with the UK through her mother’s birth in the British Colony of Aden. This is an attractive approach, but I have been unable to find any authority which supports it. In my view, it is not in accordance with the guidance in Al-Skeini and Smith or the decisions of the Court of Appeal on Article 8 ECHR. The key point is that the concept of jurisdiction under the ECHR is territorial in nature. The case law demonstrates that“control” arises where there is physical control of the individual by State agents, who are thereby deemed to be exercising jurisdiction, despite being beyond the State’s territorial boundaries. For example, Jamaa v Italy (2012) 55 EHRR 627, where Italy was found to have jurisdiction over Somali refugees picked up in the high seas/international waters by an Italian military vessel staffed by Italian military personnel (cited by Lord Hope in Smith at [49]). The effect of any extension of jurisdiction is significant, and often disputed, because it extends the State’s duties under the Convention to a wider area and/or cohort of people. I have not been able to find any authority with a reasoned decision in favour of extending a State’s jurisdiction beyond its territorial boundaries by virtue of making a decision on nationality in respect of a person who is outside the State’s jurisdiction. Adopting the term used by Lord Burnett in Abbas, on the facts of this particular case, there is no other “jurisdictional peg”, such as family members in the UK, on which the Claimant can mount a claim.

I acknowledge the inconsistencies in the Defendant’s stance on jurisdiction, but they do not enable me to disapply the law. There is nothing to indicate that the issue of jurisdiction was considered on these previous occasions. If I were to find in the Claimant’s favour, I would be acting beyond my proper role by extending the existing law on jurisdiction.

Therefore I conclude that there is no jurisdiction to allow the claim under Article 14 and Article 8 ECHR.

I consider that Ground 1 is arguable and therefore permission is granted, but the substantive claim is dismissed.

The Claimant’s case as originally pleaded sought a declaration that the statutory scheme was in breach of CEDAW.

CEDAW is an international convention, made under the auspices of the United Nations, on 18 December 1979. It came into in force on 3 September 1981. It was ratified by the UK on 7 April 1986. The UK however entered a reservation to CEDAW as follows:

“The British Nationality Act 1981, which was brought into force with effect from January 1983, is based on principles which do not allow of any discrimination against women within the meaning of Article 1 as regards acquisition, change or retention of their nationality or as regards the nationality of their children. The United Kingdom’s acceptances of Article 9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date.”

The UK has acceded to the Optional Protocol to CEDAW. It was signed on 6 October 1999 and came into force on 22 December 2000. It was ratified by the UK on 17 December 2004. As such communications may be presented to the CEDAW Committee by/on behalf of individuals under the jurisdiction of the UK, claiming to be victims of a violation of any rights in CEDAW by the UK. However, it is necessary to exhaust domestic remedies before pursuing such a claim (Salgado v UK (Comm No 11/2006, 22 January 2007, CEDAW/C/37/D/11/2006)).

Articles 1, 2 and 9 of CEDAW materially state:

“Article 1

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

“Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a)

To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle;

(b)

To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c)

To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d)

To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e)

To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f)

To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g)

To repeal all national penal provisions which constitute discrimination against women.”

“Article 9

1.

States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

2.

States Parties shall grant women equal rights with men with respect to the nationality of their children.”

The Claimant relied in particular upon Article 2(f) and Article 9(2).

In response, the Defendant’s Detailed Grounds of Defence stated, at paragraph 24:

“24.

The Claimant’s reliance on CEDAW is misconceived. CEDAW is not part of the law of the United Kingdom since it has not been incorporated directly into domestic law: R (A and another) v. Secretary of State for Health [2016] 1 WLR 331, at §56. CEDAW therefore creates no enforceable rights in domestic courts: R (SG) v. Secretary of State for Work and Pensions [2015] 1 WLR 1449, at §§115 and 235.”

The Claimant’s revised claim, as set out in the Claimant’s skeleton argument, accepts that the Claimant has no enforceable rights in the domestic courts under CEDAW. However, the Court can make findings or reach conclusions that may be relevant to a future CEDAW application, once domestic remedies have been exhausted.

Ground 2 is unarguable and permission is refused.

On Ground 1, permission to apply for judicial review is granted but Ground 1 is dismissed. On Ground 2, permission to apply for judicial review is refused.

The claim for judicial review is dismissed.