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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Navarro v Secretary of State for the Home Department [2015] EWHC 507 (Admin) (02 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/507.html Cite as: [2015] EWHC 507 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LUIS MARIA NAVARRO |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Mr T Eicke QC and Mr M Donmall (instructed by TSols ) for the Defendant
Hearing date: : 12th February 2015
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Crown Copyright ©
Mr Justice Turner:
Introduction
The Background
"Regrettably (it is probably my fault) I do not understand Blake J's reasoning on the construction of the statutes."
The Law
The British Nationality Act 1948 ('the 1948 Act')
"Citizenship of the United Kingdom and ColoniesCitizenship by birth or descent
4 Citizenship by birth
…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 [ subject to two exceptions not relevant to this case ].
5 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—…(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;"
"Rank, profession or occupation of father and claim to citizenship of the United Kingdom and colonies"
with a note:
"To be inserted as fully as possible, followed by full particulars of his claim to citizenship of the United Kingdom and colonies". [Emphasis added].
Regulation 5(4) provided:
"In every case the consular officer must satisfy himself fully that the national status of the person whose birth or death he is requested to register is such that the registration could properly be effected under these Regulations."
In short, the effect of the 1948 Regulations, operating in conjunction with the 1948 Act, was that the birth of a child abroad to a CUKC mother by descent could not be registered per se because that child at the time could have no claim to citizenship. It follows that, under the prevailing law at the time, Dr Navarro could not have been registered with legal effect by the UK consulate in Argentina.
The 1979 Rees policy
"The registration of minor children as citizens of the United Kingdom and Colonies under section 7(1) of the British Nationality Act 1948 is at my discretion. I have decided to make some alterations to the general policy in dealing with applications by women who were born in the United Kingdom and whose children born overseas are still minors. The practice hitherto has been to refuse registration if it appeared that the child was likely to live overseas or if, when the child was living in this country, the father had taken no steps to seek our citizenship for himself.In future, registration will not be refused on those grounds and a woman born in the United Kingdom will normally be able to have her child registered, subject to there being no well founded objection by the father -as there could be, for example, if registration would deprive the child of his or her existing citizenship. The notes for the guidance of intending applicants will be suitably amended.
The whole question of transmission of citizenship in the female line will be a matter to be dealt with in future nationality legislation." (HC Official Report, 7.2.79, cols 203–4)
The British Nationality Act 1981 ("the 1981 Act")
Section 4C of the 1981 Act (as inserted by the Nationality, Immigration and Asylum Act 2002)
"4C Acquisition by registration: certain persons born between 1961 and 1983(1) A person is entitled to be registered as a British citizen if—(a) he applies for registration under this section, and(b) he satisfies each of the following conditions.(2) The first condition is that the applicant was born after 7th February 1961 and before 1st 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 by virtue of section 5 of the British Nationality Act 1948 (c. 56) if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.
(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 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above."
Section 4C (as amended by the Borders, Citizenship and Immigration Act 2009)
"(1) A person is entitled to be registered as a British citizen if—(a) he applies for registration under this section, and(b) he satisfies each of the following conditions.(2) The first condition is that the applicant was born before 1st 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,(b) under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1st January 1949, or(c) under section 12(2) of that Act if one or both of the following had applied—(i) assumption A had applied;(ii) assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1st January 1949.(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.(3B) Assumption B is that—
(a) a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and(b) references in that provision to a father were references to the applicant's mother.(3C) For the purposes of subsection (3B), a nationality status is acquired by a person ("P") by descent where its acquisition—
(a) depends, amongst other things, on the nationality status of one or both of P's parents, and(b) does not depend upon an application being made for P's registration as a person who has the status in question.(3D) For the purposes of subsection (3), it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsection or in subsection (3B) were met.
(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 (c. 77) 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 ."
Deconstructing section 4C
"5 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 [or mother] is a citizen of the United Kingdom and Colonies at the time of the birth:Provided that if the father [or mother] 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—…(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;"
Dr Navarro:Sub-section 3D does no more than to place the burden of proof on the applicant to show on a balance of probabilities that if his (or her) mother had hypothetically been able to pass on citizenship by descent then his (or her) birth would have been registered at the relevant consulate.
The Secretary of State:
Sub-section 3D precludes any unregistered applicant from even raising the hypothesis that he (or she) would have been registered had his (or her) mother been able to pass on citizenship by descent. No registration means no citizenship.
Assumptions
"In my judgment, this makes it plain that the "would" question under s.4A BNA as amended is limited to the direct consequence of the removal of gender discrimination, rather than the two-step approach which exists here. That is to say the question is now confined to the question of whether, if the law had not been gender discriminatory at the time of the defendant's birth, he would have become a British citizen by reason of his birth alone. The answer is he would not because his mother was a British citizen by descent. The fact that there would have been an opportunity to have furthered the continuation of British nationality in his mother's family by registration at a consulate is now excluded from consideration in asking the "would" question."
The position in Scotland
"It appears to me to be undesirable to resort to a construction of language which is accepted as "unnatural" when a natural construction, as here, is possible. In particular the requirement to make assumptions in relation to conduct regarding registration which are of necessity hypothetical, which is implied in the petitioner's construction, is, in my view, inconsistent with general principles of statutory construction and, moreover, fraught with difficulty. No doubt any person seeking to bring themselves within the provision relating to registration would be prepared to assert, as is done in the present case, that a certain state of facts would have existed. I am unclear as to how such an assertion could ever properly be tested or verified. It seems to me that the intention of Parliament cannot have been to introduce such uncertainty into the law. I recognise that in order to ensure compliance with the ECHR and other treaty obligations, a degree of flexibility may require to be introduced to statutory construction. It does not however appear to me to be legitimate to stretch flexibility of language to such an extent that what was accepted to be an "unnatural construction" is preferred over a straightforward, although possibly unattractive, construction. For these reasons I consider that the construction advanced by counsel for the respondents is correct."
Hansard
"I think it important that the conditions laid down by the House in Pepper v Hart should be strictly insisted upon. Otherwise, the cost and inconvenience feared by Lord Mackay of Clashfern LC, whose objections to relaxation of the exclusionary rule were based on considerations of practice not principle (see p 615g), will be realised. The worst of all worlds would be achieved if parties routinely combed through Hansard, and the courts dredged through conflicting statements of parliamentary intention (see p 631f), only to conclude that the statutory provision called for no further elucidation or that no clear and unequivocal statement by a responsible minister could be derived from Hansard."
Although the complex wording of the section did not readily yield up its meaning, I am satisfied in this case that after analysis that meaning is not ambiguous or obscure and it did not lead to an absurdity.
EHCR
"Where a primary Act of Parliament dictates how the Secretary of State should act, the Claimant cannot contend that the exercise of that statutory function is inconsistent with his human rights before this court. This is also sufficient to dispose of this case on any human rights principle, abstractly put. It may be that it can be said refusal of nationality is some aspect of an Article 8 claim to private life which, taken together with Article 14 , gives rise to an arguable claim before the European Court of Human Rights in Strasbourg. There are many other problems that I can foresee, such as the timing of the application, and the margin of appreciation afforded to a state to remedy historic injustice but that is not for this court today. However, this court cannot disapply a provision of primary legislation."
I respectfully agree, with particular emphasis upon the likely problems which Dr Navarro would face in Strasbourg.
"I then raised with the Claimant if that is the case, what else can be done to ameliorate the historic discrimination and I am satisfied that there is no other remedy available to him within the British Nationality Act 1981 , as amended. He, of course, is no longer a child under 18 and therefore cannot pursue a claim for discretionary registration. There is no other provision for discretionary registration that would be applicable to him; registration is now limited to children and other classes of British nationals. Naturalisation is now the primary means by which people who are not born British acquire British citizenship. The Claimant has been present in the United Kingdom as a visitor and he has no claim under the immigration rules to indefinite leave to remain. Settlement is now a prerequisite of the exercise of naturalisation. I cannot consider that there is an arguable case that the Secretary of State should be required to exercise her discretion outside the Immigration Rules to grant the Claimant indefinite leave to remain because in 1973 British nationality law was gender discriminatory. Parliament has addressed the historic discrimination claims in the way outlined above."
"Turning now to the Convention system, the Court reiterates that in some circumstances it has ruled that arbitrary or discriminatory decisions in the field of nationality may raise issues in human rights law in general and under the Convention specifically (see the above-cited cases of Karassev, Riener, § 153, and Genovese, § 34). However, as noted above, neither the Convention nor international law in general provides for the right to acquire a specific nationality. The applicant has accepted this. The Court observes that there is nothing in the Latvian Citizenship Law to indicate that the applicant could unconditionally claim a right to Latvian citizenship (see paragraphs 20, 29 and 63 above) or that the negative decision of the Cabinet of Ministers could be seen as an arbitrary denial of such citizenship (contrast Genovese, cited above, § 34).
"In principle, it cannot be unlawful for the Secretary of State, when responding to a request made in limited terms, to heed the limits imposed. Even where a public body is under a general duty to consider exercising a power—which, in this case, the Secretary of State was not—the duty can be qualified where the request to do so is expressly limited."
It follows that it was impermissible for Dr Navarro to attempt to extend the scope of relief sought from this court to include challenges to the failure to exercise an alleged discretion which the defendant was never invited to consider in the first place.
Conclusion
Note 1 In this context, and strictly by way of passing reference only, I note that the Succession to the Crown Act 2013 eliminates gender discrimination but only in respect of those born after 28 October 2011. Had it applied retrospectively to the year of Queen Victoria’s Golden Jubilee, when Dr Navarro’s English grandfather was born, the Queen would have been succeeded on her death not by Edward VII but by her eldest child, Princess Victoria. She, in turn and after very a short reign, would have been succeeded by her son, Kaiser Wilhelm II of Germany and now King of England and Emperor of India. [Back]