Harrison v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to a ministerial letter refusing to recognise a factual claim necessary to establish entitlement to British citizenship. The court held that Article 6(1) of the European Convention on Human Rights does not require an independent administrative tribunal to determine questions of entitlement to citizenship where the Secretary of State has no statutory power to make a conclusive determination of that legal right. The proper forum for resolving disputed antecedent facts that give rise to an entitlement to citizenship is the ordinary courts by proceedings for a declaration, not judicial review of the department's provisional view. The judgment considered sections 32(5), 12(1) and 12(2) of the British Nationality Act 1948, and section 11(1) of the British Nationality Act 1981 in relation to automatic acquisition of citizenship, and concluded that the Minister's letter did not itself determine the appellant's civil rights for the purposes of Article 6.

Background and parties. The appellant, born in New Zealand in 1946 and resident in the United Kingdom since 1969, asserted that his father was born aboard a British-registered ship in 1897. If proven, that fact would have made the father a CUKC under the British Nationality Act 1948 and the appellant himself entitled to British citizenship under the 1981 Act. The Secretary of State replied by letter rejecting the claim on evidential grounds and stating there was no automatic claim to citizenship. The appellant sought permission for judicial review of that letter and, in addition, sought establishment of an independent tribunal to determine disputed claims to British citizenship relying on Article 6 ECHR.

Procedural posture. Permission to seek judicial review was refused by Sir Richard Tucker. Chadwick LJ granted limited permission to appeal on the sole issue whether the right to be recognised as a citizen is a civil right within Article 6(1). The appeal proceeded to the Court of Appeal.

Issues framed. (i) Whether entitlement to be recognised as a British citizen constitutes a "civil right" within Article 6(1) ECHR; (ii) if so, whether the absence of an independent and impartial tribunal established by law to determine factual disputes about entitlement breaches Article 6; and (iii) whether the ministerial letter amounted to a "determination" of civil rights engaging Article 6.

Court's reasoning and conclusions. The court rejected the appellant's broad argument that Article 6(1) covers all non-criminal rights, noting that Strasbourg jurisprudence and recent Grand Chamber authority (notably Ferrazzini v Italy) distinguish public-law matters that do not amount to "civil rights" for Article 6 purposes. Even if the right to citizenship were arguable as a civil right, the court emphasised that Article 6(1) applies only "in the determination" of civil rights. The Secretary of State had no statutory power to make a conclusive determination under the relevant nationality provisions (including sections 32(5), 12(1), 12(2) of the 1948 Act and section 11(1) of the 1981 Act). Where a claimant asserts a legal right to citizenship arising automatically on proven facts, the proper remedy is a declaratory proceeding in the courts, which constitute an independent and impartial tribunal able to determine facts and law. The ministerial letter was at most an expression of the department's view and did not constitute the determination that would engage Article 6. The court therefore dismissed the appeal and declined to require the Secretary of State to establish a statutory tribunal for such claims.

Appeal dismissed. The court held that (1) it was not appropriate to adopt a wide construction of "civil rights" under Article 6(1) so as to bring claims to citizenship within automatic Article 6 protection, having regard to Strasbourg Grand Chamber authority and consistent jurisprudence; (2) more importantly, Article 6(1) is engaged only where there is a "determination" of civil rights by the authority concerned, and the Secretary of State had no statutory jurisdiction to make a conclusive determination of entitlement to citizenship under the 1948 and 1981 Acts; (3) disputed antecedent facts establishing a statutory entitlement to citizenship are for the courts to decide by declaratory proceedings, and the ministerial letter was merely the department's provisional view and did not breach Article 6(1).

Permission to seek judicial review was refused by Sir Richard Tucker in the Administrative Court. Chadwick LJ granted limited permission to appeal solely on the issue whether the right to be recognised as a British citizen is a civil right within Article 6(1). The appeal was heard in the Court of Appeal (this judgment, [2003] EWCA Civ 432) and dismissed.