Harrison, R (on the application of) v Secretary Of State For Home Department

Permission to appeal may properly be granted where an important Convention issue requires authoritative determination, even though the underlying challenge appears hopeless on its evidential merits. The possible application of Article 6 to a claim for recognition as a citizen was sufficiently arguable to justify an appeal, despite authority concerning immigration cases suggesting that Article 6 is generally unavailable where public law rights are involved. Permission should be confined to the genuinely arguable issue. An administrative error does not itself establish a breach of natural justice, although failure to consider an uncontradicted contention may potentially do so.

The applicant challenged the Secretary of State’s refusal to reopen his claim to British citizenship. He asserted that his father had been born aboard a British-registered vessel in 1897, but could provide no documentary or corroborative evidence and had previously given inconsistent accounts of his father’s birthplace.

Burton J refused permission on paper. Sir Richard Tucker refused renewed permission at an oral hearing, holding that the citizenship claim was unfounded and that Article 6 did not apply. The applicant sought permission to appeal, principally arguing that recognition of citizenship was a civil right requiring determination by an independent and impartial tribunal.

1. Permission granted in part. Lord Justice Chadwick confined permission to the question whether Article 6 of the Convention applied to a claim for recognition as a citizen.
2. The challenge to the Secretary of State’s evidential assessment was hopeless. The applicant had no documentary or corroborative evidence of his father’s alleged birth aboard a British-registered vessel. The court’s grant of permission did not indicate that the underlying citizenship decision was arguably unlawful on its merits.
3. The authorities concerning immigration cases, including Maaouia v France (9 BHRC 205) and MNM v Secretary of State, indicated that Article 6 distinguishes private law rights, which fall within Article 6(1), from public law rights, which do not. However, the court was not prepared to conclude, without fuller assistance, that a claim to recognition as a citizen was necessarily outside Article 6.
4. The possible engagement of Article 6 raised an important question requiring authoritative consideration by the Court of Appeal. That constituted a compelling reason for an appeal to be heard.
5. Ground 2 disclosed no arguable breach of natural justice. An administrative error in maintaining records would not, without more, establish such a breach. There could be a potential breach if the Secretary of State failed to consider the applicant’s account of events in circumstances where it was not contradicted, but that was not the case advanced.
6. Permission to appeal was granted, to be heard before two Lords Justices, with a time estimate of four hours.

• Administrative Court: Burton J refused permission to apply for judicial review on paper.
• Administrative Court: Sir Richard Tucker refused renewed permission at an oral hearing on 4 July 2002.
• Court of Appeal (Civil Division): permission to appeal granted, confined to the Article 6 issue.