Harrison v Secretary of State for the Home Department

A statutory right to British citizenship arising automatically from established facts is determined by the courts, not by the Secretary of State. The court may determine the relevant facts and law in proceedings for a declaration, without affording administrative deference.

A departmental letter expressing a view about whether the facts establish citizenship is not a determination of rights for the purposes of article 6(1) of the European Convention on Human Rights. In any event, full access to an independent court capable of deciding the merits satisfies article 6. Citizenship also falls within the predominantly public sphere and is not a civil right within article 6(1).

The appellant claimed that his father had been born aboard a British-registered ship. If proved, that fact would have caused the appellant to acquire citizenship automatically through the British Nationality Act 1948 and the British Nationality Act 1981. The Home Office rejected the claim because the supporting evidence was insufficient and inconsistent with an Australian birth certificate.

Sir Richard Tucker, sitting in the Administrative Court, refused permission to seek judicial review. Permission to appeal was confined to whether recognition as a British citizen was a civil right within article 6(1) of the European Convention on Human Rights and whether the absence of a specialist independent tribunal infringed that provision.

1. Appeal dismissed unanimously. Keene LJ gave the leading judgment. Arden LJ and May LJ agreed.
2. The relevant statutory provisions confer British citizenship automatically where the prescribed facts exist. They give the Secretary of State no power to determine authoritatively whether a person is already a citizen under section 11(1) of the British Nationality Act 1981. This differs from naturalisation under sections 6(1) and 6(2), where the Secretary of State must be satisfied of specified matters and may grant a certificate if thought fit.
3. A dispute about an existing statutory right to citizenship may be resolved through ordinary proceedings for a declaration. The court determines the relevant facts and law for itself. It gives the Secretary of State no margin of appreciation or deference on disputed facts. Section 44(3) of the British Nationality Act 1981 expressly preserves the courts’ jurisdiction over rights arising under that Act.
4. Article 6(1) of the European Convention on Human Rights applies to the determination of civil rights, not merely whenever such rights are involved. The ministerial letter did not determine the appellant’s citizenship. It expressed the department’s view and was, at most, provisional. The authoritative determination remained available from a court.
5. Even if the letter amounted to a determination, proceedings for a declaration would give full access to an independent and impartial court with jurisdiction to determine the merits. That access would satisfy article 6(1).
6. Keene LJ was also minded to hold that citizenship is not a civil right within article 6(1). Citizenship is closely connected with immigration and belongs to the predominantly public sphere of state authority. May LJ agreed, while observing that the availability of declaratory proceedings made it unnecessary to determine that issue.
7. No specialist tribunal was required for claims to existing British citizenship. The appeal was dismissed, with no order as to costs.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2003] EWCA Civ 432.
2. Administrative Court: Sir Richard Tucker refused permission to seek judicial review. He held that the Minister could reject the asserted facts and that article 6 was not engaged in citizenship cases.