JH (Zimbabwe) v Secretary of State for the Home Department

Where a claim to the right of abode depends on being a legitimate child, the validity and recognition of the parents’ marriage may be decisive. A presumption arising from a marriage ceremony followed by cohabitation requires consideration, but its effect depends on the surrounding evidence and legal context. It does not automatically prevail where evidence points against the marriage’s validity. A tribunal must address the relevant presumption and evidence when deciding legitimacy. The Court granted permission to appeal because it was arguable that insufficient weight had been given to the presumption.

This was a renewed application for permission to appeal from an Asylum and Immigration Tribunal decision promulgated on 2 May 2007 after reconsideration. The Tribunal had dismissed the appellant’s appeal against the Secretary of State’s refusal to certify under section 10 of the Nationality, Immigration and Asylum Act 2002 that she had the right of abode.

The appellant, born in Southern Rhodesia to a British father and Rhodesian mother, relied on a 1959 Sunni Muslim marriage ceremony followed by several years of cohabitation. Evidence from Zimbabwe suggested that the ceremony was not valid under the applicable local marriage law. The central issue was whether she was legitimate for the purposes of the statutory right-of-abode provisions and whether the Tribunal had properly considered the presumption of marriage and legitimacy.

1. Permission granted. The Court did not determine whether the appellant ultimately had the right of abode. It decided that the proposed appeal was arguable.
2. The statutory route required a Commonwealth citizen to have had, immediately before the commencement of the British Nationality Act 1981, a right of abode under the relevant provisions of the Immigration Act 1971, and not subsequently to have ceased to be a Commonwealth citizen. Section 2(1)(d) required birth to a parent who possessed citizenship of the United Kingdom and Colonies by virtue of birth in the United Kingdom. Section 2(2), concerning female Commonwealth citizens married to such citizens, did not assist the appellant. Her status as a Commonwealth citizen was accepted.
3. Section 50(9) of the British Nationality Act 1981 treated the relationship of father and child as existing only between a man and his legitimate child, subject to an irrelevant qualification concerning subsequent legitimation. The appellant therefore had to establish that she was legitimate. That depended on whether her parents’ marriage was recognised as valid under the law applicable where she was born.
4. The Tribunal had identified legitimacy as the correct issue, but had relied on evidence suggesting that the ceremony was invalid and had stated that the appellant had not proved validity. The Court considered that the presumption arising from a marriage ceremony followed by cohabitation could be material. The presumption did not operate automatically: the evidence and the applicable legal context had to be assessed. FI and Others concerned a case where there was no evidence either way and was factually different. Syed Shanur Ali concerned Muslim law in Bangladesh and could not simply be applied to this case.
5. The more relevant line of inquiry was Chief Adjudication Officer v Kirpal Kaur Bath [1999] EWCA Civ 3008, where the Court had given effect to a presumption of legitimacy, although the factual history differed. It was possible that a full court would conclude that the Tribunal had not given sufficient weight to the presumption here. That justified permission to appeal.
6. By way of a footnote, the Court observed that section 9(1) of the Nationality, Immigration and Asylum Act 2002 introduced a new section 50(9), not then in force in a way that would benefit the appellant. If brought into force, a fresh application might be more productive.

• Court of Appeal (Civil Division): on the renewed application, granted permission to appeal in [2008] EWCA Civ 109.
• Asylum and Immigration Tribunal: after reconsideration, dismissed the appellant’s appeal; the decision was promulgated on 2 May 2007.
• Secretary of State for the Home Department: refused to certify that the appellant had the right of abode under section 10 of the Nationality, Immigration and Asylum Act 2002.