Harrison v Secretary of State for the Home Department

The claimant, Peter Daniel Harrison (“Mr Harrison”), was born in Wellington, New Zealand, on January 30, 1946. His birth certificate gives his father’s name as Charles Stanley Mark Harrison, who is said to be 48 with his place of birth in Adelaide, South Australia. That is consistent with his father’s birth certificate, which gives his father’s date of birth as December 28, 1897 in Mary Street, Ungley (a suburb of Adelaide), South Australia, which was then a Crown Colony, prior to the Commonwealth of Australia Act 1900, which established the Commonwealth of Australia from January 1, 1901. Charles Harrison’s father (Charles Francis Harrison) was born in England.

In 1946, when Mr Harrison was born, New Zealand had the status of a self-governing colony. In 1947 New Zealand adopted the Statute of Westminster providing for legislative independence, and became an independent Commonwealth country on January 1, 1949.

This is the latest of many proceedings in which Mr Harrison has sought to establish, or obtain, British citizenship. In the present proceedings Mr Harrison seeks a declaration that he is a British citizen, or, alternatively, that he has a right to British citizenship by registration.

The claim for a declaration that he is a British citizen is as follows. His father was born in 1897, and his birth was registered in South Australia in 1898. His father’s birth was within the Crown’s dominions, and he was a British subject at common law, and became a citizen of the United Kingdom and Colonies under the British Nationality Act 1948. Mr Harrison became entitled to the same status by descent.

His claim to a right to British citizenship by registration is that his applications in 1976 and 1987 for registration as a United Kingdom citizen were wrongly refused. The 1976 application was refused in 1981 on the ground that the Secretary of State was not satisfied that Mr Harrison complied with the requirement for registration in section 5A(2) of the British Nationality Act 1948 (as inserted by the Immigration Act 1971, Schedule 1, Appendix A) that the applicant intends, if registered, to reside in the United Kingdom. Mr Harrison contends that he was entitled to registration under the combined effect of section 6(1) of the British Nationality Act 1948, and the transitional provisions in the Immigration Act 1971. The detailed provisions are set out below.

The 1987 application was refused on the ground that Mr Harrison had not satisfied the requirement that he shall have been ordinarily resident in the United Kingdom throughout the period from December 31, 1972 without restriction on the period he might remain, since he was not granted indefinite leave to enter or remain until November 9, 1987. The Secretary of State indicated that his avenue to British citizenship would be through naturalisation under the British Nationality Act 1981, section 6. Mr Harrison contends that no legal restrictions could have been properly applied to his right of entry in 1986, and that he qualified for citizenship under section 7(1)(a) of the British Nationality Act 1981.

The Secretary of State says that the only route to British citizenship for Mr Harrison is to apply for naturalisation, and that Mr Harrison is relying on an alleged right to a declaration as to citizenship or a right to registration (rather than apply for naturalisation and attend an interview) for reasons which it is unnecessary to set out in this judgment. The Secretary of State made an application dated February 23, 2005 that Mr Harrison’s claim be struck out, or that summary judgment be granted. It came on for hearing before David Richards J on March 18, 2005. The Secretary of State attended the hearing by solicitor and counsel. Mr Harrison did not attend.

At the hearing, David Richards J stated that he considered that Mr Harrison’s failure to attend was unacceptable and that Mr Harrison had given no good reason for his failure. However, to avoid satellite litigation about the propriety of continuing the hearing in Mr Harrison’s absence, he directed that the hearing be refixed with a time estimate of half a day before a judge. The order recited that the court was satisfied that Mr Harrison had not provided the court with any good reason for his failure to attend the hearing but that an adjournment was appropriate to provide him with a further opportunity to attend. It was ordered that the application be adjourned to the first available date (except for May 3 to May 24, 2005 inclusive).

Following the hearing on March 18, 2005 the order made on that day was served on Mr Harrison by email on March 29, 2005 and letter to his PO Box address on March 30, 2005. Notice of the hearing on April 21, 2005 was given to Mr Harrison by email and letter on April 1, 2005.

By a letter dated April 12, 2005 Mr Harrison wrote to the court to say that, as he was “currently servicing a work contract in the Sudan Republic” he could not attend any hearings before May 24, 2005, and that fact was known to the court and the Treasury solicitor.

At the hearing yesterday I decided that the application should proceed. My reasons are set out in a separate judgment.

In 1996 (R v Secretary of State for the Home Department, ex parte Harrison) Mr Harrison sought to quash the refusal by the Secretary of State to grant him British citizenship following his application in 1993 for naturalisation under the British Nationality Act 1981. He had refused to comply with a request for a substantial body of information, on the ground that as a matter of principle he should not have been obliged to be interrogated. He had also refused to be interviewed by the police. Sedley J held that that there was no basis for holding that the Secretary of State’s requirements were unlawful. On July 16, 1997 Thorpe LJ refused him leave to appeal from the judgment of Sedley J: Sedley J’s conclusion was unassailable, and there was no real prospect of a successful appeal.

In 2001 Mr Harrison brought proceedings (Harrison v Home Office and Secretary of State for the Home Department) against the Secretary of State for misfeasance in public office and negligence. Master Leslie struck out the proceedings on December 4, 2001, and Morison J refused permission to appeal on January 29, 2002.

In 2001 Mr Harrison claimed that he was entitled to British citizenship on the ground that his father had been born, not in South Australia as his birth certificate said, but on a British-registered ship sailing between Bristol in England and Port Chalmers in New Zealand, and that his original birth certificate was issued by the master of the vessel prior to embarkation at Adelaide. On January 18, 2002 the Secretary of State stated that Mr Harrison was not eligible for British citizenship following his claim that his father had been born in 1897.

Mr Harrison sued Lord Rooker, who had written the letter on behalf of the Secretary of State, and his own MP, Mr Frank Dobson, for libel: Harrison v Rooker and Dobson. The claims were struck out by Master Eyre, and Rafferty J refused permission to appeal on April 11, 2003.

Mr Harrison also sought judicial review of the letter: Harrison v Secretary of State for the Home Department. Sir Richard Tucker refused permission for Mr Harrison to seek judicial review. The judge held that the Secretary of State was entitled to conclude that the assertion that Mr Harrison’s father was born on a British ship was unfounded. Permission was granted to appeal limited to the argument that the right to be recognised as a citizen was a civil right within the scope of Article 6 of the European Convention on Human Rights.

The appeal was dismissed, on the ground that the letter from the Home Office did not determine Mr Harrison’s rights, irrespective of whether they were civil ones or purely public law rights: [2003] EWCA Civ 432. In the Court of Appeal it was accepted that if his father had been born on a British ship, then the father would initially have been a British subject and then, following the British Nationality Act 1948, Mr Harrison would also have become a citizen of the United Kingdom and Colonies on January 1, 1949, and then in due course a British citizen under section 11(1) of the British Nationality Act 1981. The Secretary of State rejected his claim on the ground that he could not provide any documentary evidence of his father’s birth aboard a British registered ship, and there was no one living who could corroborate the claim. Throughout his subsequent dealings with the Home Office, spanning some 30 years, Mr Harrison had consistently said that his father was born in Australia. Accordingly the Home Office concluded that there was no evidence that he had an automatic claim to British citizenship, and if he wished to become a British citizen he would need to make a fresh application for nationalisation.

But Keene LJ said that if the facts were as Mr Harrison claimed, then the effect of the legislation would have been that he would have become a British citizen. If he could have established the facts, there was no discretion in the Secretary of State. It would be for the courts to decide. The letter was therefore no more than an expression of the view of the Home Office. He said (at para 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 citizenship … In determining that matter the court will itself resolve any issues of fact as well as any issues of law … It will find the facts for itself according to the evidence before it.” But Keene LJ also said (at para 37) that given the state of the evidence he would not encourage Mr Harrison to bring proceedings.

Nevertheless, Mr Harrison subsequently brought proceedings for a declaration in the Chancery Division. On July 12, 2004 Lewison J held that Mr Harrison had not shown that his father was born on a British-registered ship. Mr Harrison had not established his claim on the balance of probabilities. In particular he had not shown that the entries in his father’s birth certificate were inaccurate.

Prior to 1914, nationality within the United Kingdom and colonies was governed by the common law. The whole of the dominions of the Crown shared a single common nationality status: British subject. Any person born within the dominions and allegiance of the Crown became a British subject by birth.

The British Nationality and Status of Aliens Act 1914 (“the 1914 Act”) codified the common law and introduced provision for the naturalisation of aliens. Any person born within the dominions and allegiance of the Crown continued to be a British subject.

In January 1949, New Zealand, Australia and various other countries became independent Commonwealth states. These countries passed their own citizenship laws.

The British Nationality Act 1948 (“the 1948 Act”) created a new citizenship status, a “Citizen of the United Kingdom and Colonies” (“CUKC”).

The scheme of the 1948 Act was that everyone who did not acquire citizenship under a nationality law in a newly independent Commonwealth country would become a CUKC. However, where a person became a citizen of an independent Commonwealth country, he or she would not necessarily become a CUKC. Only persons with a particularly close link to the United Kingdom by birth or descent would achieve CUKC status in addition to becoming a national of an independent Commonwealth country.

Section 12 of the 1948 Act provided:

“(1)

A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he possesses any of the following qualifications, that is to say 

(a)

that he was born within the territories comprised at the commencement of this Act in the United Kingdom and Colonies, and would have been such a citizen if section four of this Act had been in force at the time of his birth;

(b)

that he is a person naturalised in the United Kingdom and Colonies;

(c)

that he became a British subject by reason of the annexation of any territory included at the commencement of this Act in the United Kingdom and Colonies.

(2)

A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if at the time of his birth his father was a British subject and possessed any of the qualifications specified in the last foregoing subsection.”

The 1948 Act also contained registration provisions, allowing a Commonwealth citizen resident in the United Kingdom for prescribed period to apply to be registered as a CUKC. Section 6 provided:

“(1)

Subject to the provisions of subsection (3) of this section, a citizen of any country mentioned in subsection (3) of section one of this Act [including New Zealand] or a citizen of Eire, being a person of full age and capacity, shall be entitled, on making an application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies if he satisfies the Secretary of State either-

(a)

that he is ordinarily resident in the United Kingdom and has been so resident throughout the period of twelve months, or such shorter period as the Secretary of State may in the special circumstances of any particular case accept, immediately preceding his application…”

Section 30 of the 1948 Act provided that “colony” did not include any of the countries mentioned in section 1(3), which include New Zealand and Australia.

By the Immigration Act 1971 (“the 1971 Act”) the right of abode was limited to: (1) CUKCs with a close family link to the United Kingdom; and (2) Commonwealth citizens with a parent who was a CUKC by virtue of his or her birth in the United Kingdom (section 2). Section 2 provided:

“(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 that citizenship at the time of the birth or adoption, and the parent either

(i)

then had that citizenship by his birth, adoption, naturalisation, or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(ii)

has been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or

(c)

he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more; or

(d)

he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

…”

The 1971 Act also imposed substantial restrictions on the right to apply for registration under the 1948 Act.

Schedule 1 to the 1971 Act (which came into force on January 1, 1973) curtailed the scope and operation of section 6 of the 1948 Act, subject to transitional provision in paragraph 2:

“1.

The law with respect to registration as a citizen of the United Kingdom and Colonies shall be modified as follows:-

(a)

in the British Nationality Act 1948, immediately before section 6, there shall be inserted as section 5A the provisions set out in Appendix A to this Schedule, and no person shall be entitled to be registered under or by virtue of section 6(1) of that Act except in the transitional cases allowed for by paragraph 2 below…

2.

Notwithstanding anything in paragraph 1 above or any repeal made by this Act (but subject to paragraph 3 below), a person who would but for this Act have been entitled under or by virtue of section 6(1) of the British Nationality Act 1948 to be registered as a citizen of the United Kingdom and Colonies shall be entitled to be so registered in the United Kingdom if he satisfies the Secretary of State that at the date of his application to be registered he had throughout the last five years or, if it is more than five years, throughout the period since thecoming into force of this Act been ordinarily resident in the United Kingdom without being subject, by virtue of any law relating to immigration, to any restriction on the period for which he might remain.”

The 1971 Act (Schedule 1, Appendix A) added section 5A to the 1948 Act:

“(1)

… a citizen of any country mentioned in section 1(3) of this Act, being a person of full age and capacity shall be entitled, on making an application therefore to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies if he satisfies the Secretary of State that-

(a)

he is patrial within the meaning of the Immigration Act 1971 by virtue of section 2(1)(d) of that Act or of the reference thereto in section 2(2); and

(b)

he fulfils the conditions in sub-section (3) below.

(2)

On an application made to the Secretary of State in the prescribed manner, the Secretary of State may cause to be registered as a citizen of the United Kingdom and Colonies any person of full age and capacity who satisfies the Secretary of State that…

(a)

he is a citizen of a country mentioned in section 1(3) of this Act…; and

(b)

he fulfils the condition in subsection (3) below; and

(c)

he is of good character; and

(d)

he has sufficient knowledge of the English or Welsh language; and

(e)

he intends in the event of his being registered to reside in the United Kingdom or a colony or protectorate or to enter into or continue in relevant employment.

(3)

The condition that a person is required by subsection (1)(b) or (2)(b) above to fulfil is that throughout the period of five years ending with the date of his application to be registered, or such shorter period so ending as the Secretary of State may in the special circumstances of any particular case accept, he has been ordinarily resident in the United Kingdom, or engaged in relevant employment, or partly the one and partly the other.”

The British Nationality Act 1981 (“the 1981 Act”) created the new status of British citizen from commencement on January 1, 1983. British citizenship was granted to any CUKC with the right of abode in the United Kingdom. Section 11 provides:

“11.(1) … a person who immediately before commencement

(a)

was a citizen of the United Kingdom and Colonies; and

(b)

had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force

shall at commencement become a British citizen.”

Time-limited transitional provisions provided for persons entitled to register as a CUKC by their residence in the United Kingdom to apply for registration as British citizens. Section 7(1)(a) provided:

“7.

(1) A person shall be entitled, on an application for his registration as a British citizen made (subject to sub-sections (6) and (7)) within five years after commencement, to be registered as such a citizen if either of the following requirements is satisfied in his case, namely

(a)

that, if paragraphs 2 and 3 (but not paragraph 4 or 5) of Schedule 1 to the Immigration Act 1971 had remained in force, he would (had he applied for it) have been, on the date of the application under this sub-section, entitled under the said paragraph 2 to be registered in the United Kingdom as a citizen of the United Kingdom and Colonies; …”

The claim raises two issues: (1) Is Mr Harrison a British citizen by operation of law? (2) If not, is Mr Harrison entitled to be registered as a British citizen?

The Secretary of State says that (a) Mr Harrison is a citizen of New Zealand, and he does not have sufficiently close links with the United Kingdom to be a British citizen by operation of law; (b) Mr Harrison does not fulfil the criteria for registration (and never has); and (c) Mr Harrison’s proper remedy if he has a complaint about registration is a claim for judicial review. The present claim is an abuse of process.

As I have said, Mr Harrison was born in Wellington, New Zealand on January 30, 1946. He is a citizen of New Zealand. Mr Harrison’s father, Charles Harrison, was born in the Crown Colony of South Australia in 1897.

Mr Harrison was granted indefinite leave to remain (“ILR”) in the United Kingdom on July 21, 1975. ILR is not a citizenship status. It permits a foreign national to enter and remain in the United Kingdom. The Secretary of State may withdraw ILR. Mr Harrison was absent from the United Kingdom between December 1977 and July 1986. On his return, he was admitted to the United Kingdom but pursuant to Rule 56 of the Immigration Rules, a restriction was placed on his leave to enter the United Kingdom and his ILR was withdrawn. Mr Harrison was re-granted ILR on November 9, 1987.

Mr Harrison has made a number of applications for citizenship:

I am satisfied that Mr Harrison has no arguable case that he is a British citizen by operation of law. He has already failed to persuade Lewison J that he is a British citizen by virtue of the alleged birth of his father on board a British-registered ship. If he had any claim to British citizenship by operation of law, it should have been raised in those proceedings, and these proceedings would be an abuse of the process: Johnson v Gore Wood & Co [2002] 2 AC 1.

In any event, once the question of the place of birth of his father has been decided, there is no basis for a claim to British citizenship.

Mr Harrison is a New Zealand citizen, but not a British citizen. Mr Harrison’s father, Charles Harrison, was born in the Crown Colony of South Australia in 1897. Under the common law, Charles Harrison was born within the dominions and allegiance of the Crown and was thus a British subject by birth. On the coming into force of the 1948 Act, Charles Harrison became a CUKC by virtue of section 12(2) of the 1948 Act because Charles Harrison’s father was born in the United Kingdom.

Mr Harrison was born in New Zealand in 1946, at a time when it was a colony within the Crown’s dominions. Accordingly, Mr Harrison was born within the dominions and allegiance of the Crown and was thus a British subject by birth pursuant to section 1(1)(a) of the 1914 Act.

On the coming into force of the 1948 Act on January 1, 1949, Mr Harrison did not become a CUKC as neither he nor his father were born in the United Kingdom or within the Colonies (as defined in section 30 of the 1948 Act as excluding New Zealand and Australia). On the coming into force of the 1948 Act, Mr Harrison became a citizen of the independent commonwealth country of New Zealand pursuant to section 16(1)(a) of the British Nationality and New Zealand Citizenship Act 1948, an Act of the Parliament of New Zealand.

On the coming into force of the 1971 Act, Mr Harrison lost his right of abode in the United Kingdom because he was neither a CUKC nor a Commonwealth citizen born to a parent who was a CUKC by virtue of his or her birth in the United Kingdom (section 2).

As Mr Harrison had no right of abode in the United Kingdom, he did not become a British citizen on the coming into force of section 11 of the 1981 Act.

Accordingly, I am satisfied that there is no possible basis for Mr Harrison’s claim to citizenship as of right.

The other claims are claims for declarations that the refusal in 1981 of his 1976 application for registration, and in 1989 of his 1987 application, were unlawful.

Mr Harrison contends that he is entitled to registration as a CUKC under the 1948 Act. But Schedule 9 to the 1981 Act substantially repealed the 1948 Act. In any event, Mr Harrison was never entitled to registration under the 1948 Act.

Any application under section 6(1) of the 1948 Act would have been refused as Mr Harrison was only granted indefinite leave to remain in the United Kingdom on July 21, 1975. At the date of the application, he had not been ordinarily resident in the United Kingdom, free from any restriction on the period for which he might remain, for at least five years.

However, even if the 1948 Act (as amended) were in force now, any application for registration would fail because Mr Harrison had not throughout the period since the coming into force of the 1971 Act been ordinarily resident in the United Kingdom or free from restrictions on the period for which he may remain in the United Kingdom: 1971 Act, Schedule 1, para 2.

No application for registration under section 5A(1) of the 1948 Act (as inserted by the 1971 Act, Schedule 1, Appendix A) could have succeeded, since section 5A(1)(a) requires the applicant to be patrial (that is, a person with the right of abode in the United Kingdom). Mr Harrison was not patrial in the United Kingdom under section 2(1)(d) of the 1971 Act because he was not born to a parent who was a CUKC by birth in the United Kingdom. Mr Harrison’s father was born in Australia.

Mr Harrison’s 1976 application was therefore considered under section 5A(2) of the 1948 Act (as inserted by the 1971 Act, Schedule 1, Appendix A), which is at the discretion of the Secretary of State. Section 5A(2) requires an applicant to satisfy the Secretary of State that (inter alia) he is patrial for the purposes of the 1971 Act, that he intends in the event of his being registered to reside in the United Kingdom, and that throughout the period of five years ending with the date of his application to be registered, or such shorter period so ending as the Secretary of State may in the special circumstances of any particular case accept, he has been ordinarily resident in the United Kingdom, or engaged in relevant employment, or partly the one and partly the other.

Mr Harrison went to New Zealand in December 1977 and failed to satisfy the Secretary of State that he intended, in the event of his being registered, to reside in the United Kingdom.

Following the rejection of this application in 1981, Mr Harrison did not return to the United Kingdom until July 1986.

Mr Harrison’s 1987 application under section 7 of the 1981 Act was refused. Registration under the 1981 Act was only available during a transitional period to persons (a) who were entitled to register as CUKCs under the 1948 Act (as amended); or (b) who had the right of abode in the United Kingdom.

As Mr Harrison was not entitled to register as a CUKC under the old law, and did not have the right of abode, he was not entitled to register as a British citizen during the transitional period.

Any registration application under the 1981 Act would have no prospect of success. Since the expiry of the transitional provisions in section 7 of the 1981 Act which, in Mr Harrison’s case, ended on or before December 31, 1990, adult citizens of Commonwealth countries (including New Zealand) may only acquire British citizenship by naturalisation. Registration has been phased out.

The decision whether to accept an application for registration under sections 5A or 6 of the 1948 Act or under section 7 of the 1981 Act was one for the Secretary of State having received an application made in the prescribed manner and upon payment of the proper fee pursuant to the British Nationality Regulations (as issued and amended on numerous dates). Mr Harrison does not have a legal right to registration as a citizen by operation of law or through the legal remedy of a declaration.

In my judgment there is no room for doubt that if the Secretary of State errs in determining a registration application, the sole proper route of challenge is an application for judicial review, and not (as Mr Harrison has sought) a claim for declarations: O’Reilly v Mackman [1983] 2 AC 237.

It would not be right for me to transfer these proceedings to the Administrative Court as an application for permission to bring proceedings for judicial review, since any application for judicial review of these decisions would inevitably fail. It is obvious that the claim has not been made promptly (CPR 54.5(1)(a)), and is over 23 years out of time in the case of the 1976 application and over 15 years out of time in the case of the application under the 1981 Act (CPR 54.5(1)(b)). Nor do I see any basis for any serious argument that the decisions were flawed or otherwise open to judicial review. The 1976 application was refused on the basis that he had failed to satisfy the Secretary of State that he intended, in the event of his being registered, to reside in the United Kingdom, and Mr Harrison has not put forward any material which could form the basis of a successful challenge. The contention by Mr Harrison that he was entitled to registration as a CUKC pursuant to the 1948 Act is therefore unsustainable.

Following the rejection of this application in 1981, Mr Harrison did not return to the United Kingdom until July 1986. Since he was not granted indefinite leave until November 9, 1987, there is similarly no basis for a challenge to the 1989 decision, which was that he had not fulfilled the requirement that he be ordinarily resident in the United Kingdom, without restriction on the period for which he might remain, throughout the period from December 31, 1972.

For these reasons the claim form and the particulars of claim will be struck out.