Muma Sinkala v Secretary of State for the Home Department

The Claimant seeks a declaration of her status as a British Overseas Citizen.

The Claimant’s father and mother were born in Northern Rhodesia in 1958 and 1959 respectively. The Claimant accepts that immediately before Northern Rhodesia became independent as Zambia on 24^th October 1964 her parents were British Protected Persons. However, she contends that they were also Citizens of the United Kingdom and Colonies (“CUKCs”) and says that they did not lose that status on independence. Those with that status subsequently became British Overseas Citizens. The Claimant says that as a consequence her parents became British Overseas Citizens and that she acquired her parents’ status when she was born in the United Kingdom in 1989 because she would otherwise have been born stateless.

The Defendant says that the Claimant’s case is dependent on her contention that her parents were CUKCs before Zambian independence and that she is precluded from advancing that argument by an issue estoppel. This arose, the Defendant says, as a consequence of previous proceedings in which the Claimant had appealed against the refusal of her application for leave to remain. That appeal had been on the basis that the Claimant had a right of abode as a British Citizen and had turned on the issue of whether her parents had been CUKCs. The Upper Tribunal had found against the Claimant on that issue and her application for permission to appeal had been refused.

Alternatively, the Defendant resists the claim on its merits saying that: (a) she does not accept that the Claimant’s parents were ever CUKCs; (b) even if they were, they lost that status on Zambian independence; and (c) the Claimant was not born stateless but, instead, acquired Zambian citizenship on birth.

It follows that there are the following issues to be determined:

Unless the Claimant succeeds on each of those issues her claim will fail. If she does succeed on those issues it will be necessary to address the question of whether her parents were in fact CUKCs before Zambian independence. That will depend on whether their fathers and grandfathers were British subjects within the meaning of the British Nationality and Status of Aliens Act 1914 (“the 1914 Act”).

The Barotseland-North Western Rhodesia Order of 1899 and the North-Eastern Rhodesia Order of 1900 regularized the administration by the British South Africa Company of the territories which subsequently became Zambia. The territories were amalgamated as Northern Rhodesia in 1911 and in 1924 administration was taken over by the Crown with the appointment of a governor.

The Claimant’s mother’s paternal grandfather, Mukala Makashini, was born in 1902.

Kapema Londoni, the Claimant’s mother’s maternal grandfather, was born in 1903.

Maria Londoni, the Claimant’s mother’s maternal grandmother, was born in 1905.

The Claimant’s mother’s paternal grandmother, Chikota Makashini, was born in 1910.

There is no evidence about the places of birth of the Claimant’s mother’s grandparents but I will assume, in the Claimant’s favour, that they were born within the territories which subsequently became Northern Rhodesia.

Section 1 of the 1914 Act deemed various categories of persons to be “natural-born British subjects” including, by section 1(1)(a) “any person born within His Majesty’s dominions and allegiance”. It is apparent that “dominions” was used there in a different sense from that of “the Dominions” listed in the First Schedule to the Act and to which reference was made in sections 8, 9, and 19. The Claimant says that Northern Rhodesia had been “within His Majesty’s dominions and allegiance” from 1900 (if not earlier) alternatively from 1924, and that those born there were British subjects by virtue of the 1914 Act.

Section 1 of the British Protected Persons Order 1934 (“the 1934 Protectorates Order”) defined “territory” as meaning any territory listed in the schedule. The schedule set out a list of protectorates which included Northern Rhodesia. Section 2 of the Order identified persons who were to be “regarded as belonging to the territory” as including:

“(a)

any person born (whether before or after the entry into force of this Order) within the territory who is not, at the time of his birth, a British subject …”

Section 4 provided that any person belonging to the territory who became a British subject should “thereupon cease to be regarded as belonging to the territory”.

The Claimant’s maternal grandfather, Paison Makashini, was born in Northern Rhodesia on 2^nd February 1924.

The Claimant’s paternal grandfather, Wilton Sinkala, was born on 2^nd June 1935 in Northern Rhodesia.

Lisheti Makashini, the Claimant’s maternal grandmother, was born in Northern Rhodesia in 1939.

The Claimant’s paternal grandmother, Faniles Sinkala, was born in 1943 in Northern Rhodesia.

The British Nationality Act 1948 (“the BNA 1948”) replaced the 1914 Act. Section 1 of the Act provided that:

“British nationality by virtue of citizenship

(1)

Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.

(2)

Any person having the status aforesaid may be known either as a British subject or as a Commonwealth citizen ; and accordingly in this Act and in any other enactment or instrument whatever, whether passed, or made before or after the commencement of this Act, the expression "British subject" and the expression "Commonwealth citizen" shall have the same meaning.

(3)

The following are the countries hereinbefore referred to, that is to say, Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.”

Section 4 of the Act provided for those born within the United Kingdom and Colonies after the commencement of the Act to be CUKCs by birth. Then section 5 addressed citizenship by descent in these terms:

“Citizenship by descent

(1)

Subject to the provisions of this section, a person born after the 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 the birth:

Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless—

(a)

that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects ; or

(b)

that person's birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later ; or

(c)

that person's father is, at the time of the birth, in Crown service under His Majesty's government in the United Kingdom ; or

(d)

that person is born in any country mentioned in subsection (3) of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

(2)

If the Secretary of State so directs, a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not obtained before the registration.”

Section 10 made provision for the naturalisation as CUKCs of aliens and of British Protected Persons. Then, section 12 dealt with certain categories of persons who were British subjects before the commencement of the Act with subsections (1) – (3) saying:

Section 30 addressed protectorates and protected states in these terms:

“Protectorates and protected states

(1)

“His Majesty may, in relation to the states and territories under His protection through His government in the United Kingdom, by Order in Council declare which of those states and territories are protectorates and which of them are protected states for the purposes of this Act.

(2)

His Majesty may by Order in Council apply the provisions of this Act to the New Hebrides and to Canton Island as if they were protected states.

(3)

His Majesty may by Order in Council direct that in this Act any reference specified in the Order to protectorates shall be construed as including a reference to such protected states as may be so specified, and that in relation to any protected state so specified any reference in this Act to the Governor shall be construed as including a reference to such person as may be specified in the Order.”

Section 32 provided that “protectorate” had the meaning given section 30 and defined a British protected person thus:

“‘British protected person’ means a person who is a member of a class of persons declared by Order in Council made in relation to any protectorate, protected state, mandated territory or trust territory to be for the purposes of this Act British protected persons by virtue of their connection with that protectorate, state or territory;”

Section 5 of the British Protectorates, Protected States, and Protected Persons Order in Council 1949 (“the 1949 Protectorates Order”) provided that the territories listed in the First Schedule were protectorates for the purposes of the BNA 1948 and of the order. That list included Northern Rhodesia as a protectorate. Section 9(1)(a) of the order provided that:

The 1949 Protectorates Order differed from the 1934 Protectorates Order in that the former did not provide that a British subject could not be or become a British Protected Person.

The Federation of Rhodesia and Nyasaland (“the Federation”) was formed of Southern Rhodesia, Northern Rhodesia, and Nyasaland on 1^st August 1953.

Section 2(1) of the Citizenship of Rhodesia and Nyasaland and British Nationality Act 1957 (“the 1957 Citizenship Act”) defined a British Protected Person and a Protectorate as.

“ ‘British protected person’ means a person who is a member of a class of persons which Her Majesty has declared by Order in Council made under the British Nationality Act, 1948, of the United Kingdom in relation to a protectorate, protected state, mandated territory or trust territory, to be British protected persons by virtue of their connexion with the protectorate, state or territory;

‘protectorate’ means a state or territory under the protection of Her Majesty through her Government in the United Kingdom which has been declared by Order in Council made under the British Nationality Act, 1948, of the United Kingdom to be a protectorate for the purposes of that Act;”

Section 6 provided that:

“A person born in the Federation before, on or after the date of commencement of this Act shall, as the case may be, become a citizen by birth on that date or be a citizen by birth unless—

(a)

at the time of the person’s birth, his father possessed such immunity from suit and legal process as is accorded to an envoy of a foreign sovereign Power accredited to Her Majesty and was not a citizen; or

(b)

at the time of the person’s birth, his father was an enemy alien and —

(i)

his mother was interned in a place set aside for the internment of enemy aliens; or

(ii)

the place of the person’s birth was under occupation by the enemy;

or

(c)

the place of the person’s birth was in Northern Rhodesia or Nyasaland and—

(i)

the person was born out of wedlock; or

(ii)

at the time of the person’s birth, his father was not a British subject.”

Sections 12 and 18 of the Act made provision for the circumstances in which someone who was a British Protected Person by reason of connexion with Northern Rhodesia could become a citizen of the Federation saying:

“12.

(1) A person of full age and capacity who -

(a)

Is a British protected person by virtue of his connexion with Northern Rhodesia or Nyasaland, and

(b)

Makes application in the manner prescribed; shall, subject to the provisions of subsection (2) and section eighteen, be entitled to be registered as a citizen.

(2)

The provisions of this section shall not apply to a person who is the child of an external polygamous marriage”

“18.

... No person referred to in Part III or in section fifteen shall be entitled to be or be registered as a citizen -

(a)

until he has taken an oath of allegiance; and

(b)

if he has previously been a citizen and has been deprived of or has renounced his citizenship, unless he has obtained the written authority of the Minister.”

The Claimant’s father was born in Northern Rhodesia on 26^th March 1958 and her mother was born there on 11^th May 1959. The Claimant contends that her parents became citizens of the Federation by virtue of section 6 of the 1957 Citizenship Act.

Section 1 of the British Nationality Act 1958 provided that:

“Position of Federation of Rhodesia and Nyasaland and its component territories.

(1)

Subject to the following provisions of this section—

(a)

the Federation of Rhodesia and Nyasaland shall be substituted for Southern Rhodesia in subsection (3) of section one of the principal Act (which lists Commonwealth countries with separate citizenship from that of the United Kingdom and Colonies);

(b)

the protectorates of Northern Rhodesia and Nyasaland shall be excepted from the operation of any reference in the principal Act to a protectorate.

(2)

Paragraph (a) of subsection (1) of this section shall not extend the meaning of the term ‘colony’ in the principal Act to include Southern Rhodesia.

(3)

Paragraph (b) of subsection (1) of this section shall not affect the meaning of the term ‘British protected person’ or ‘Crown service under Her Majesty's government in the United Kingdom’ in the principal Act, or affect the operation of subsection (1) of section thirty of the principal Act (which enables Orders in Council to be made as respects protectorates and protected states and on which the meaning of the term ‘protectorate’ partly depends); nor shall that paragraph be taken as applying to references to a protectorate in any enactment or document in which the meaning of the term depends on its meaning in the principal Act.

(4)

Nothing in this section shall affect any provision of the principal Act in so far as it operates with reference to a state of affairs existing before the coming into operation of this section.

(5)

This section shall come into operation on such date as the Secretary of State may appoint by order made by statutory instrument at the request of the government of the Federation of Rhodesia and Nyasaland.”

The Rhodesia and Nyasaland Act 1963 made provision for the Federation to be dissolved by Order in Council. The Federation of Rhodesia and Nyasaland (Dissolution) Order 1963 (“the Dissolution Order”) dissolved the Federation with effect from 31^st December 1963. Article 74(2) of this order said:

It is that provision from which the Claimant derives her parents’ status as CUKCs.

Northern Rhodesia became independent as Zambia on 24^th October 1964 pursuant to the Zambia Independence Act 1964 (“the Zambia Act”)

Section 3(3) of that Act stated that:

“Except as provided by section 4 of this Act, any person who immediately before the appointed day is a citizen of the United Kingdom and Colonies shall on that day cease to be such a citizen if he becomes on that day a citizen of Zambia.”

Section 4 provided for the retention of citizenship of the United Kingdom and colonies by certain Zambian citizens thus:

“Retention of citizenship of United Kingdom and Colonies by certain citizens of Zambia

(1)

Subject to subsection (5) of this section, a person shall not cease to be a citizen of the United Kingdom and Colonies under section 3(3) of this Act if he, his father or his father's father—

(a)

was born in the United Kingdom or in a colony; or

(b)

is or was a person naturalised in the United Kingdom and Colonies; or

(c)

was registered as a citizen of the United Kingdom and Colonies; or

(d)

became a British subject by reason of the annexation of any territory included in a colony.”

The 1964 Constitution was annexed to the Zambia Independence Order 1964. Section 3(1) of the constitution stated that:

The Claimant relies on section 8(2) of the Constitution and says that it had the effect that those who were minors on independence only became citizens when registered as such. Section 8 provides that:

“(1)

Subject to the provisions of this section, any person who—

(a)

has attained the age of twenty-one years or is a woman who is or has been married ;

(b)

is a Commonwealth citizen or a citizen of the Republic of Ireland or a citizen of any country in Africa to which this subsection applies ; and

(c)

has been ordinarily resident in Zambia for the pre- scribed period;

shall be entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Zambia.

(2)

Subject to the provisions of this section, any person who has attained the age of twenty-one years or is a woman who is or has been married shall be entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Zambia if, at the date of his application, one of his parents is a citizen of Zambia.

(3)

An application for registration as a citizen under this section shall not be made by or on behalf of any person who, under any law in force in Zambia, is adjudged or otherwise declared to be of unsound mind.

(4)

The countries in Africa to which subsection (1) of this section applies (other than countries to which section 9 of this Constitution applies) are any countries which are for the time being declared by the Minister, by notice published in the Gazette, to be countries which permit citizens of Zambia to become citizens of those countries by registration.

(5)

Any period during which a person was resident in the former Protectorate of Northern Rhodesia may, if that period was continuous until the commencement of this Order, be taken into account in determining whether that person has been resident in Zambia for the prescribed period.

(6)

In this section “the prescribed period” in relation to any person, means the period of four years immediately preceding that person’s application for registration.”

I need not rehearse the terms of sections 4 – 7 of the 1964 Constitution but it is to be noted that they provided for a number of ways in which various categories of persons could become Zambian citizens.

The 1964 Constitution was superseded by the Constitution of Zambia 1973 (“the 1973 Constitution”). This provided at article 6 that:

“(6)

A person born in or outside Zambia after the commencement of this Constitution shall become a citizen of Zambia at the date of his birth if on that date at least one of his parents is a citizen of Zambia.”

The Citizenship of Zambia Act 1975 (“the 1975 Citizenship Act”) was passed by the Zambian parliament and came into force on 4^th March 1977. Sections 3 – 10 of the Act dealt with the establishment, composition, and functions of the Citizenship Board. Section 11 made provision for a person to become a citizen by adoption. Then, sections 12 – 18 dealt with citizenship by registration. Section 12 provided that:

“Registration of minors

(1)

The Board may cause any person not of full age who is the child of a citizen to be registered as a citizen upon application made in the prescribed manner by a parent or guardian of such person.

(2)

When the Board is satisfied that any person not of full age has associations by way of descent, residence or otherwise with Zambia which would justify his registration as a citizen, the Board may cause such person to be registered as a citizen.”

Section 16(1) and (2) provided that:

“Other persons entitled to be registered as citizens

(1)

A person to whom the provisions of Article 6 of the constitution apply may make an application to the Board for registration as a citizen in such manner as may be prescribed.

(2)

The Board may grant the application for registration as a citizen of a person who applies for such registration under the provisions of subsection (1) if the Board is satisfied that he—

(a)

is, at the date of his application, ordinarily resident in Zambia;

(b)

has, at the date of his application, been ordinarily resident in Zambia for the period of ten years immediately preceding that date;

(c)

is of good character;

(d)

has an adequate knowledge of the English language or any language commonly used by the indigenous inhabitants of Zambia which may be prescribed;

(e)

intends, after the granting of his application, to—

(i)

continue to reside in Zambia; or

(ii)

enter or continue in the service of the Government;

(f)

is willing to renounce any citizenship which he may possess; and

(g)

has not been refused registration as a citizen within the period of five years immediately preceding his application...”

Section 26 of the British Nationality Act 1981 (“the BNA 1981”) provided for certain CUKCs to become British Overseas Citizens saying:

“Citizens of U.K. and Colonies who are to become British Overseas citizens at commencement. 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 Dependent Territories citizen shall at commencement become a British Overseas citizen.”

The Claimant says that her parents became British Overseas Citizens by virtue of that provision.

The Claimant was born in the United Kingdom on 8^th October 1989 and says that she acquired her parents’ status by reason of paragraph 1 of schedule 2 to the BNA 1981 which stated:

“(1)

Where a person born in the United Kingdom after commencement would, but for this paragraph, be born stateless, then, subject to sub-paragraph (3)—

(a)

if at the time of the birth his father or mother is a citizen or subject of a description mentioned in sub-paragraph (2), he shall be a citizen or subject of that description; and accordingly

(b)

if he is born legitimate and at the time of the birth each of his parents is a citizen or subject of a different description so mentioned, he shall be a citizen or subject of the same description so mentioned as each of them is respectively at that time.”

In light of that background the Claimant’s case can be summarized thus. She contends that although Northern Rhodesia was described as a protectorate in the Orders in Council it was properly to be seen as having been a colonial protectorate. She says that meant that a person born there was born “within His Majesty’s dominions and allegiance” for the purposes of the 1914 Act and was, therefore, a British subject. In turn that meant that the Claimant’s grandfathers and great-grandfathers were British subjects for the purposes of the 1914 and 1948 Acts. She says that to the extent that those persons were also British Protected Persons this did not affect their status as British subjects.

On their birth the Claimant’s parents each became, she contends, citizens of the Federation of Rhodesia and Nyasaland by virtue of section 6 of the 1957 Citizenship Act. On the dissolution of the Federation, they became CUKCs by virtue of article 74(2) of the Dissolution Order. They retained that status on Zambian independence because they did not automatically become Zambian citizens. They subsequently became British Oversea Citizens by virtue of section 26 of the BNA 1981. On her birth in the United Kingdom the Claimant did not acquire Zambian citizenship automatically. She was, therefore, potentially stateless and acquired her parent’s status as a British Overseas Citizen by reason of paragraph 1of Schedule 2 of the BNA 1981.

On 13^th May 2014 the Claimant applied for leave to remain. Her application was refused and the Claimant appealed, contending that she was a British Citizen with a right of abode.

The Claimant’s appeal (“the Right of Abode Proceedings”) was dismissed by the First Tier Tribunal. The Claimant appealed that refusal to the Upper Tribunal. The original decision was set aside on the basis there having been an error of law and the issue was reconsidered in the Upper Tribunal by Deputy Upper Tribunal Judge Harris.

At [9] Deputy Judge Harris summarized the issues before him as being:

“Did the Appellant's parents have citizenship of the United Kingdom and colonies status before Zambian independence in 1964?

Was the Appellant's paternal grandfather a British subject on 1^st January 1949?

In any event were the Appellant's parents citizens of the United Kingdom and colonies (CUKCs) after Zambian independence in 1964?

In the alternative - did the Appellant's parents have the right of abode for the purpose of Section 2(I) of the 1971 Act?”

Deputy Judge Harris rejected the appeal and the core of his reasoning appeared thus at [41]:

“I find the arguments in what is a very complex analysis of law of the Secretary of State to be persuasive. It would be necessary for the Appellant to show that her parents were CUKCs prior to Zambian independence in 1964. Nothing has been produced by the Appellant to rebut the contention that the only manner in which that can be done is by showing the Appellant’s parents meet the requirements of Section 5 of the British Nationality Act I948 namely that it would be necessary to show that at the date of her father's birth his father was a CUKC; that the Appellant's paternal grandfather obtained the CUKC by descent from his father and that either the Appellant's father or paternal grandfather were born in a protectorate. I am not satisfied that they were. In order for the Appellant's paternal grandfather to have been a British subject on 1^st January 1949 I agree, having followed the detailed paper trail with the submission made by Mr Jarvis, that it would have been necessary for him to be a “British subject" under the terms of the 1914 British Nationality and Status of Aliens Act. That has not been proven although I acknowledge the great difficulty that would befall such a tracing exercise to the Appellant. Further I agree with the contention made by the Secretary of State that the Zambian Independence Act of 1964 does not provide any assistance to the Appellants and that Section 5 of the Zambian Independence Act 1964 makes plain that any reference in Section 4 is to a colony, protectorate or a protected state does not include a reference to Zambia although it is difficult to construe what that section was referring to if it does not refer to Zambia. In any event a strong argument is put forward that the Appellant's parents did not have a right of abode pursuant to Section 2(1) of the '1971 Act and strong reasons are given for this by the Secretary of State in particular that the Appellant's father was not a CUKC after 1964, that there is no documentary evidence to show that the Appellant's paternal grandfather was a CUKC on 26^th March 1958, that the Appellant has never claimed that her paternal grandfather's CUKC status was ever registered in the UK and could not be regarded as a ‘patrial’.”

The Claimant sought to appeal that decision to the Court of Appeal. On that appeal she sought to advance arguments akin to those on which she relied in the current proceedings. In refusing permission Burnett LJ (as he then was) pointed out that those were very different from the arguments which had been advanced before the Upper Tribunal. In any event he refused permission in robust terms stating that the substantive point which the Claimant was seeking to raise was totally without merit. At [10] Burnett LJ said that the core issue in those proceedings was “what the status of somebody born in Northern Rhodesia became on Zambian independence.” He said that this question was determined by the decision in Motala with the consequence that the effect of sections 3 and 4 of the Zambia Act was that the Claimant’s parents became Zambian nationals on independence.

The Defendant submitted that those circumstances gave rise to an issue estoppel. She said that although the Claimant now seeks a different outcome namely a declaration of her status as a British Overseas Citizen rather than asserting a status as a British Citizen the core issue is the same. That issue is the status of the Claimant’s parents and in particular their position as CUKCs and the effect of Zambian independence on their status. Although the Defendant asserts this issue estoppel, Mr Deakin accepted the significance of a finding as to the Claimant’s nationality status and accepted that if I were to conclude that the Claimant was in fact a British Overseas Citizen then it would be open to me to make a declaration to that effect notwithstanding the Right of Abode Proceedings.

Various objections which the Claimant advanced to the Defendant’s invocation of issue estoppel can be disposed of shortly.

First, the Claimant said that it was not open to the Defendant to raise the point at this stage in the proceedings and that if the Defendant wished to rely on that argument she should have applied earlier for the striking out of the claim. That contention is wrong both as a matter of principle and by reference to the procedural history of this case. In Olympic Airlines SA v ACG Acquisition XX LLC [2014] EWCA Civ 821 at [40] Rimer LJ explained that it was legitimate for a party asserting an issue estoppel to leave that defence to be determined at trial provided the matter had been properly pleaded before. The current proceedings began as judicial review proceedings in the Administrative Court. Clive Sheldon KC (as he then was) gave permission and transferred the proceedings from the Administrative Court. The Defendant had already raised the question of whether the claim was precluded by some form of res judicata and Mr Sheldon made it clear both that he was not determining that issue and that it remained open to the Defendant to advance that argument.

Next, the Claimant points to two matters which were not before the Upper Tribunal. The first of those is the argument based on article 74(2) of the Dissolution Order. It is right that this argument was not advanced before the Upper Tribunal but it could have been and that does not prevent an issue estoppel arising if there is otherwise such an estoppel.

The second is an entry in the GCID Record Sheets relating to the Claimant. On 31^st October 2017, the UKVI caseworker made an entry about the advice received from Caroline Hughes, a technical specialist in the Defendant’s Nationality Department, made this entry:

“I am advised that possibly the parents will have retained CUKC status, as the reps claim, but this would not after the app’s claim to citizenship: ‘If the parents did not become Zambian when Zambia attained independence in 1964 (which would appear to be the case if they subsequently registered as Zambian), they will have retained CUKC status. But because they had no right of abode in the UK, on 1^st January 1983 they will have become British Overseas Citizens (BOC). BOCs do not need a visa to enter the UK, but are subject to immigration control, and are normally granted 6m leave to enter on arrival with no permission to work or recourse to public funds’.”

Mr Ijezie sought to rely on this passage as new material which was not available to the Claimant at the time of the Right of Abode Proceedings. However, this also does not advance matters. It appears to be an entry in which the UKVI caseworker recorded advice which she had been given by Miss Hughes. That advice cannot affect my assessment of the correct position flowing from consideration of the history and the relevant legislation. In any event the advice is uncontentious in setting out what the position would have been if the Claimant’s parents had not obtained Zambian citizenship on Zambian independence. It then appears to be expressing the view that they did not obtain such citizenship on independence because they were subsequently registered as citizens. That argument will have to be addressed on its merits in due course but the fact that this view was expressed in a document of which the Claimant was not previously aware does not advance matters and does not prevent an issue estoppel arising.

In R (Abidoye) v Secretary of State for the Home Department [2020 ] EWCA Civ 1425 the Court of Appeal considered the operation of issue estoppel in the context of immigration applications and appeals. As explained by Andrews LJ at [43] – [46] the doctrine of res judicata does not apply with full rigour in such cases. That is because of the requirement that questions of rights to remain, removal, or asylum and related matters be determined by reference to the circumstances as they are at the time of the decision in question. However, the finality of litigation remains desirable in such cases as elsewhere. It follows that an earlier decision “will be treated as final and binding on the parties to it unless there is some legal justification for departing from it”.

The current case concerns the Claimant’s nationality status. That is closely akin to but distinct from the questions of the kind which were considered in Abidoye. The question of whether the Claimant is a British Overseas Citizen was not considered in the Right of Abode Proceedings but the answer to that question turns on the conclusion reached on the status of the Claimant’s parents as CUKCs and that was considered in those proceedings. There is considerable force in the contention that these proceedings amount to a reconsideration of the matters which were addressed and determined in the earlier proceedings. Ultimately, the doctrine of issue estoppel is an aspect of the court’s power to control its procedure and to prevent abuse of process. The position here is that as a matter of law the Claimant either is or is not a British Overseas Citizen and there has not yet been any ruling on that question. If the effect of a proper analysis of the law and of the facts is that the Claimant has that status then that is her status regardless of the decision made in the Right of Abode Proceedings. If she has that status then a declaration to that effect should be made. I am satisfied that it would be contrary to the interests of justice for this court to decline to address the Claimant’s arguments on the basis of an issue estoppel and that the need to prevent abuse of process does not require that course to be taken. It is of note that although the Defendant contended that there was an issue estoppel, Mr Deakin did not in the last analysis seek to dissuade me from addressing the arguments on their merits.

The Claimant accepts that both her parents were British Protected Persons immediately before Zambia became independent. However, she says that they were also CUKCs. She says that section 3(3) of the Zambia Act did not cause them to lose that status on independence because they did not become Zambian citizens automatically on independence. Her case is that the effect of section 8(2) of the 1964 Constitution was that those, such as her parents, who were minors on 23^rd October 1964 did not become Zambian citizens until they were registered as such pursuant to that section.

At first sight the decision in Motala is conclusive against that contention. The plaintiffs in that case had been born in Northern Rhodesia in December 1962 and June 1964. Their father was a CUKC by registration and the plaintiffs acquired that status on birth. The issue in the case was whether they lost that status on Zambian independence. The central dispute in the case was whether the plaintiffs were British Protected Persons as well as CUKCs. The House of Lords concluded that the combined effect of the BNA 1948 and the 1949 Protectorates Order was that the plaintiffs had become British Protected Persons on birth in Northern Rhodesia. It also held that this status and that of being CUKCs were capable of co-existing and had done so in that case. The House then concluded that the combined effect of section 3 of the Zambia Act and section 3 of the 1964 Constitution was that the plaintiffs had become Zambian citizens automatically on independence and had, therefore, lost their status as CUKCs. The plaintiffs had sought to argue as a fall-back position that although they had lost their status as British Protected Persons on Zambian independence they had retained the status of CUKCs. Lord Bridge (with whom the other members of the House agreed) rejected that argument in robust terms saying:

“What I have earlier referred to as Mr. Collins' subsidiary argument and what he himself described as his ‘last ditch’ argument, perhaps because it was not advanced in either court below, runs as follows. Section 3(2) operates to deprive a person of his status as a British protected person however and whenever he becomes a citizen of Zambia. Thus Safiya and Faruq lost their status as British protected persons when they became citizens of Zambia on the appointed day. But section 3(3) only operates to deprive a person of his separate status as a citizen of the United Kingdom and Colonies if the constitution contains a provision whereby he becomes a citizen of Zambia on the appointed day by virtue of that separate status. I cannot accept this construction. It requires that one should read into subsection (3) some such words as ‘by virtue of his citizenship of the United Kingdom and Colonies’ and I can see no reason for making such an implication. The Zambia Independence Act 1964 preceded the Zambia Independence Order 1964 and made provision, which was common to such statutes, that, however the new citizenship law was drafted, which would depend on what classes of person the new state wished to admit immediately to its citizenship, those who automatically became citizens of the new Commonwealth country, henceforth to be included in the list of countries in section 1(3) of the British Nationality Act 1948 with their own separate citizenship laws, should automatically cease to be citizens of the United Kingdom and Colonies. If there is no escape from the conclusion that Safiya and Faruq became citizens of Zambia on the appointed day under section 3(1) of the Constitution, there is equally no escape from the conclusion that they thereby ceased to be citizens of the United Kingdom and Colonies under section 3(3) of the Act.”

The clear effect of that decision is that children who had been born in Northern Rhodesia to CUKCs before independence became British Protected Persons as well as CUKCs and that they then became Zambian citizens automatically on independence by reason of section 3(1) of the 1964 Constitution. They thereby lost both the status of British Protected Persons and that of CUKCs automatically on independence by reason of section 3 of the Zambia Act. Assuming in the Claimant’s favour that her parents were CUKCs, they were in the same position as the plaintiffs in Motala and the same conclusion must follow with the consequence that they lost that status on independence.

Mr Ijezie contends that I should not regard myself as bound by Motala. He says the case is distinguishable on its facts from the current case. He then says that, even if it is not distinguishable, I should regard it as having been decided per incuriam because the House of Lords failed to take into account the effect of section 8 of the 1964 Constitution. When that section is taken into account the court should hold, he submits, that the Claimant’s parents did not become Zambian citizens automatically on independence and so did not lose their CUKC status. For the following reasons each of those contentions is untenable.

Mr Ijezie says that the facts of Motala are distinguishable from those of the current case. In Motala the plaintiffs’ father had not been born in Northern Rhodesia but had become a CUKC by registration. Conversely, in this case the Claimant’s grandfathers had been born in Northern Rhodesia; had been citizens of the Federation; and had, it is contended, become CUKCs automatically by virtue of article 74 of the Dissolution Order. Whether those factors are considered separately or cumulatively they do not amount to a material distinction between Motala and the current case. Both in Motala and in the current case the relevant persons had been born in Northern Rhodesia as the children of CUKCs and had been minors at the date of independence. The same consequences must follow in each case.

It is of note that, when refusing the Claimant’s application for leave to appeal against Deputy Judge Harris’s decision in the Right of Abode Proceedings, Burnett LJ said that the argument which was being advanced about her parents’ status as CUKCs continuing after Zambian independence was unarguable because of Motala. Burnett LJ said that Motala “decided the very issue which arises as a matter of substance in this case. That issue is what the status of somebody born in Northern Rhodesia became on Zambian independence”. That is also the issue before me.

Next, it is said that Motala was decided per incuriam and that I should decline to follow it on that basis. There are a number of difficulties with that submission. The first is that it is not open to a first instance judge to decline to follow the decision of a higher court on the basis that the decision was reached per incuriam. The doctrine that a court may decline to follow the decision of another court by reason of it having been reached per incuriam is only applicable between courts at the same level. Its principal application is as a consideration which might lead the Court of Appeal to decline to follow one of its own decisions: see Young v Bristol Aeroplane [1944] I KB 718 at 725 and following and Desnousse v Newham LBC [2006] EWCA Civ 547, [2006] QB 831 at [71] and following. That is an end of the matter: if Motala is indistinguishable, which it is, and if the rule it laid down is applicable to the current circumstances, as it is, I am bound to follow it.

Even if it were open to me to treat the decision in Motala as having been reached per incuriam the requirements for doing so have not been satisfied. A decision can only be treated as having been made per incuriam if it was made in ignorance of a relevant provision in circumstances where that provision meant that the decision was wrong and where, if regard had been had to that provision, a different decision would necessarily have been reached (see Desnousse at [71]). That is not the position here.

It is true that no reference was made to section 8 of the 1964 Constitution in the speech of Lord Bridge nor in the arguments addressed to the House of Lords. It is apparent, however, that the House did have regard to the 1964 Constitution and it is verging on the fanciful to suggest that section 8 was relevant but had been overlooked by all counsel and by the judges at every stage in the progress of the case from the President of the Family Division at first instance, through the Court of Appeal (in a constitution of Lord Donaldson and Beldam and Nolan LJJ), to the House of Lords. The true position is that section 8 has no relevance and the Claimant’s argument as to its effect is misconceived.

The words of section 3(1) of the 1964 Constitution are clear: “every person” who is a British Protected Person “shall become a citizen of Zambia on 24^th October 1964”. Section 8(2) is not to be read as in some way qualifying section 3(1) or as placing a limit on its operation. Instead, it is providing a different route to Zambian citizenship for those who did not qualify under section 3. The provision of different routes to citizenship is entirely commonplace in legislation dealing with nationality. The 1964 Constitution did that and by sections 3, 4, 5, 6, 7, and 8 provided a number of different ways in which a person could become a citizen of Zambia. Those were alternative routes and there is no basis for reading the requirements needed for a person to obtain citizenship through the section 8 route as applying to the section 3(1) route. The Claimant’s interpretation of the provisions is not a legitimate grammatical reading of the language used. It would, moreover, have the illogical consequence that, despite the wide wording of section 3(1), the only persons who automatically became Zambian citizens on independence were adult men and those adult women who had never been married. Mr Ijezie accepted that this would be the consequence of his interpretation of the 1964 Constitution but could not explain why such a course should have been adopted other than to point to historic discrimination between men and women in matters of nationality law (this, of course, would not explain why different categories of women were treated differently).

It is an essential element in the Claimant’s claim to be a British Overseas Citizen that her parents remained CUKCs after Zambian independence and subsequently became British Overseas Citizens. She has not established that element. Instead, as a consequence of Motala, the position as a matter of law is that the Claimant’s parents became Zambian citizens on 24^th October 1964 and any status they had as CUKCs ceased automatically on the same date. It follows that the Claimant’s contention that she is a British Overseas Citizen by reason of a status derived from that of her parents must fail.

The route by which the Claimant contended that she had acquired her parents British Overseas Citizen status was through paragraph 1 of schedule 2 to the BNA 1981. For the following reasons, even if contrary to the foregoing analysis the Claimant’s parents had retained their CUKC status on Zambian independence and had subsequently become British Oversea Citizens, this provision would not have operated to pass that status to the Claimant.

The Claimant was born in the United Kingdom in 1989. Paragraph 1 of schedule 2 would have given the Claimant her parents’ British Overseas Citizen status if she would but for that provision “be born stateless”.

Even on the Claimant’s own case her parents had become Zambian citizens by 1989 and were Zambian citizens when she was born. The question, therefore, is whether the Claimant acquired Zambian citizenship on birth. That is a matter of Zambian law. There was no expert evidence before me as to the position under that law. For the reasons I set out in an oral ruling at the start of the hearing I dismissed the Claimant’s eleventh-hour attempt to adduce purported expert evidence of that law. Thereafter, the Claimant’s position was that I should interpret the Zambian legislation as if it were United Kingdom legislation. Subject to one qualification which will appear below I was content to proceed on that basis in order to consider whether there was any potential substance in the contention that the Claimant had been born stateless.

The Claimant was born to a citizen of Zambia. Article 6 of the 1973 Constitution provided that any person born either inside or outside Zambia to a citizen of Zambia should “become a citizen of Zambia at the date of his birth”. Those are clear words and had the effect that rather than being born stateless the Claimant became a Zambian citizen at the moment she was born.

Mr Ijezie submitted that article 6 of the 1973 Constitution was to be read by reference to section 12 of the 1975 Citizenship Act. He contended that this had the effect that a child born to a Zambian citizen did not become a Zambian citizen until he or she was registered as such by the Citizenship Board which the Act created.

That argument based on section 12 of the 1975 Citizenship Act is misconceived. The 1973 Constitution does not give any basis for regarding registration as necessary for a person to become a citizen in accordance with article 6. Indeed, the reference in article 6 to a person becoming a citizen “at the date of his birth” is wholly incompatible with registration being a requirement which must be satisfied for article 6 citizenship to be attained. It is of note that articles 7 and 8 of the 1973 Constitution do make provision for the registration of particular categories of citizens. Those articles provide for the acquisition of citizenship other than by way of birth to a Zambian citizen. The fact that registration is provided for in respect of those other routes to citizenship is an indication, if one were needed, that registration is not required for the article 6 route. Finally, the 1975 Citizenship Act does not (subject to the consideration of section 16 below) purport to provide that registration is required for the acquisition of citizenship under article 6. That Act is making arrangements for those instances where registration was required by the 1973 Constitution but had no relevance to article 6 citizenship which is the citizenship which the Claimant acquired on her birth.

Mr Ijezie submitted that the decision in R (MK) v Secretary of State for the Home Department [2017] EWHC 1365 (Admin) supported his argument. I do not accept that submission. In that case Mark Ockelton sitting as a deputy High Court judge was concerned with whether the claimant had been born stateless for the purposes of paragraph 3 of schedule 2 of the BNA 1981. The claimant there had been born in the United Kingdom to parents who were Indian nationals and the issue was whether she had obtained Indian citizenship on birth. The decision turned on Mr Ockeleton’s analysis of the effect of the provisions of Indian law as to when Indian citizenship was acquired.

At [36] Mr Ockelton said that for the purposes of the BNA 1981 “a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes”. I respectfully agree. The question, however, is whether a given person has a particular nationality when born. Mr Ockelton’s analysis of the provisions of Indian law led him to conclude that although the claimant had a right to Indian citizenship by descent she did not acquire the citizenship on birth. Instead, a child born outside India “is not a citizen unless the birth is registered at an Indian consulate ‘in such form and in such manner as may be prescribed’”. Moreover, possession of the passport of any other country would preclude such registration. The position here is different. As already noted article 6 of the 1973 Constitution expressly provides that a person in the position of the Claimant becomes “a citizen of Zambia at the date of his birth”. It follows that Mr Ockelton’s decision which turned on the effect of the Indian provisions does not assist here.

In his closing submissions Mr Ijezie advanced an argument which had not been foreshadowed in either his skeleton argument or his opening submissions. This was that section 16 of the 1975 Citizenship Act indicated that Zambian citizenship was obtained by registration and not birth. It is right that section 16(2) does appear to provide that persons entitled to Zambian citizenship by article 6 of the Constitution can only be registered as citizens if the requirements of section 16(2) are satisfied. Not only would such a reading be inconsistent with the clear words of article 6 that citizenship derives from the time of birth but the requirements set out in section 16(2) do not appear apt for such cases. The requirements, instead, have the tenor of requirements which would need to be met by a person who was not a Zambian citizen by descent but who was seeking citizenship by virtue of residence in Zambia. The most natural explanation is that something has gone awry in the drafting of the section and that it was intended to apply to those who were not citizens by virtue of article 6. In the absence of expert evidence as to Zambian law I am not prepared to interpret that provision as applying to a person in the position of the Claimant. In that regard it is of note that the burden of showing that she was born stateless lies on the Claimant. That burden has not been discharged by bare reference to the terms of foreign legislation without expert evidence and in circumstances where the reading proposed by the Claimant appears incompatible with the other provisions to which reference has been made.

Thus, the claim fails on this basis even if the Claimant’s parents had become British Overseas Citizens.

In light of my conclusion that even if they were CUKCs before Zambian independence the Claimant’s parents lost that status on independence and did not acquire British Overseas Citizen status it is not necessary to address this issue. However, as the point was fully argued I will address it albeit briefly.

The Claimant’s argument that her parents were CUKCs depends on showing that they were citizens of the Federation who became CUKCs by reason of article 74 of the Dissolution Order. That in turn depends on showing that they had become citizens of the Federation pursuant to section 6 of the 1957 Citizenship Act.

The Claimant’s interpretation of section 6 was that any person born in wedlock in Northern Rhodesia became a citizen of the Federation on birth unless the exceptions in 6(a) or (b), which are not relevant for current purposes, applied.

I do not accept that interpretation. It gives no effect to section 6(c)(ii) with its exclusion of those whose fathers were not British subjects. The plain grammatical meaning of section 6(c)(ii) is that persons born in Northern Rhodesia whose fathers were not British subjects were not capable of becoming citizens of the Federation in accordance with section 6. Not only is that the plain meaning it is the only legitimate meaning of the words used as a matter of language. Mr Ijezie was not able to explain how his interpretation could follow as a matter of language. His argument boiled down to a contention based on his argument that any person born in Northern Rhodesia before 1^st January 1949 (when the BNA 1948 came into force) was born within “His Majesty’s dominions and allegiance” for the purposes of the 1914 Act and so was a British subject by reason of that Act. Following from that proposition the argument was that this meant that almost everyone born in Northern Rhodesia by the time the 1957 Citizenship Act came into effect would have had a father who was a British subject and so it did not make sense for the 1957 Act to be read as imposing that as an additional requirement. Even if the Claimant was right in her argument as to the effect of the 1914 Act (and as will be seen below I have concluded that she was not) that would not justify a wholly unwarranted reading of section 6. In fact, as I will explain below, the terms of the 1957 Citizenship Act provide an indication that the Claimant’s interpretation of the effect of the 1914 Act is wrong.

It follows that to succeed in showing that her parents were citizens of the Federation by reason of the 1957 Citizenship Act the Claimant has to show that their fathers were British subjects. Indeed, it is arguable that the effect of the BNA 1948 is that she will have to show that her great-grandfathers were British subjects.

The Claimant’s case was that when her grandfathers and great-grandfathers were born Northern Rhodesia was a colonial protectorate and as such it was “within His Majesty’s dominions and allegiance” for the purposes of section 1(1)(a) of the 1914 Act. She said that had the consequence that those persons became British subjects on birth having been born there before the BNA 1948 came into force on 1^st January 1949. Mr Ijezie relied on the following material in support of that proposition:

The question is what is meant by “within His Majesty’s dominions and allegiance” for the purposes of the 1914 Act. The material to which Mr Ijezie referred does not assist in addressing that question. It may well be that the concept of a “colonial protectorate” is useful for academic purposes or for the purposes of international law but it is not a term which is used in the legislative provisions relevant here. There are references in those provisions to “protectorates”, “protected states”, “Dominions”, and to “colonies” but not to “colonial protectorates”. Similarly, I do not find the directions which Lord Russell gave in relation to the meaning of “Her Majesty’s dominions” for the purposes of the Foreign Enlistment Act of assistance in interpreting the term “His Majesty’s dominions and allegiance” for the purposes of the 1914 Act. It is true that Lord Russell drew a distinction between different kinds of protectorate. However, he was doing so in order that the jury could address the question of the nature of the Crown’s authority there with a view to considering the operation of the 1870 Act and the jury were expressly directed to have regard to the nature and purpose of that Act.

It is not necessary for these purposes to attempt a comprehensive definition of the extent of the territories “within His Majesty’s dominions and allegiance” under the 1914 Act. I have already explained that “dominions and allegiance” is used there in a different sense from “Dominions” elsewhere in the 1914 Act. I am satisfied for the following reasons that Northern Rhodesia was not “within His Majesty’s dominions and allegiance” for the purposes of the 1914 Act.

First, no authority has been cited to the effect that a person born in Northern Rhodesia was a British subject solely by reason of such birth. Nor was any authority cited which showed a person born in a different protectorate being a British subject on that basis. I did not understand Mr Ijezie to be suggesting that the status of Northern Rhodesia was unique amongst protectorates and if his argument was correct it would be expected that there would be authority demonstrating the position by reference to another protectorate if not to Northern Rhodesia.

Second, the consistent theme of the sundry relevant Acts and Orders in Council is to the effect that:

Third, the exclusion in section 6(c) of the 1957 Citizenship Act would be of very limited effect if all persons born in Northern Rhodesia before 1^st January 1949 had been British subjects by birth. It is also significant that, although section 12 of that Act provided for a person who was a British Protected Person by virtue of connexion with Northern Rhodesia to apply to be registered as a citizen, section 18 provided that such a person could not be registered until he had taken an oath of allegiance. Such an oath would not be necessary if those persons had been born in “His Majesty’s dominions and allegiance”.

The consequence is that the Claimant has not shown that her grandfathers or great-grandfathers were British subjects rather than British Protected Persons. Therefore, even if the other difficulties her case faces had been overcome she would not have been able to show that her parents were CUKCs before Zambian independence.

It follows that the Claimant is not a British Overseas Citizen and her claim for a declaration that she has that status is to be dismissed.