Harrison v Secretary of State for the Home Department

British citizenship does not arise by operation of law unless the statutory conditions governing the relevant nationality status are satisfied. A person born in a former colony may have been a British subject by birth, but later citizenship depends on the transitional and descent provisions in force at the relevant dates.

Registration under the nationality legislation is not generally an automatic right. Where registration depends on the Secretary of State’s satisfaction or discretion, a challenge to the decision must ordinarily be brought by judicial review. A declaration is not the appropriate substitute. A claim brought many years after the relevant decision, with no arguable public law error, may be struck out as abusive or doomed to fail.

Peter Daniel Harrison sought declarations that he was a British citizen by operation of law or was entitled to registration as a citizen. He relied on his father’s birth in South Australia, his own birth in New Zealand, and applications for registration made in 1976 and 1987.

The Secretary of State applied to strike out the claim or obtain summary judgment. The court considered whether Mr Harrison had acquired citizenship under the historical nationality legislation, whether the transitional registration provisions applied, and whether the earlier registration decisions could be challenged by declaratory proceedings rather than judicial review.

1. Citizenship by operation of law. Mr Harrison was born in New Zealand in 1946 and was therefore a British subject by birth under the British Nationality and Status of Aliens Act 1914. On commencement of the British Nationality Act 1948, however, he did not become a citizen of the United Kingdom and Colonies because neither he nor his father was born in the United Kingdom or in a colony as defined by that Act. He became a citizen of New Zealand under New Zealand legislation.
2. On commencement of the Immigration Act 1971, Mr Harrison did not retain a right of abode under section 2. He therefore did not become a British citizen under section 11 of the British Nationality Act 1981. His claim to citizenship as of right had no arguable basis. The attempt to reopen the issue already determined in earlier proceedings was also an abuse of process within [2002] 2 AC 1.
3. Registration. Mr Harrison had not satisfied the residence and immigration-status requirements applicable to registration under section 6(1) of the 1948 Act or paragraph 2 of Schedule 1 to the 1971 Act. He was not patrial for the purposes of section 5A(1), because his father had not been born in the United Kingdom. His 1976 application was therefore discretionary under section 5A(2), and the Secretary of State was entitled to refuse it because Mr Harrison had not satisfied the requirement concerning intended residence in the United Kingdom.
4. The transitional entitlement under section 7(1)(a) of the 1981 Act was unavailable because Mr Harrison had not been entitled to register as a CUKC under the old law and had no right of abode. The 1987 refusal therefore disclosed no arguable error.
5. Remedy and disposition. A challenge to an erroneous registration decision had to be brought by judicial review, not by a claim for declarations: [1983] 2 AC 237. Transfer to the Administrative Court was inappropriate because the claims were substantially out of time and had no realistic prospect of success. The claim form and particulars of claim were struck out.

This was a first-instance Chancery Division decision. The judgment records earlier proceedings concerning Mr Harrison’s nationality claims, including an appeal dismissed by the Court of Appeal in [2003] EWCA Civ 432 and a Chancery Division decision of 12 July 2004 rejecting his claim based on his father’s alleged birth on a British-registered ship.