Ramalingum, R (on the application of) v Secretary of State for the Home Department

The exercise of discretion to register a minor as a British citizen may take account of the citizenship or prospective citizenship of the minor’s parents. That does not constitute racial discrimination where the relevant circumstances of the comparator are materially different. A policy directed to family cohesion and the strength of the family’s connection with the United Kingdom may lawfully distinguish between a child with a British citizen parent and one without. The same material difference may justify different treatment under Article 14 of the European Convention on Human Rights. Section 3(1) of the British Nationality Act 1981 confers a broad discretion, subject to reasonable consideration of the Secretary of State’s policy and the individual merits of each case.

The claimant, a Mauritian national born in 1990, arrived in the United Kingdom with her parents in 2003. The family obtained indefinite leave to remain in April 2008. While still a minor, she applied under section 3(1) of the British Nationality Act 1981 for registration as a British citizen.

The Secretary of State refused the application. The policy normally required at least one parent to be, or be about to become, a British citizen, but recognised that exceptional cases should be considered on their merits. The claimant challenged the decision on grounds of racial discrimination under the Race Relations Act 1976, breach of Article 14, irrationality and legitimate expectation.

1. Claim dismissed. The Secretary of State’s policy and its application to the claimant did not breach the Race Relations Act 1976.
2. Section 3(1) of the British Nationality Act 1981 confers a broad discretion. The policy did not create hard and fast rules: each application remained subject to consideration on its merits and all relevant factors and representations had to be taken into account.
3. Applying the approach in R v Immigration Officer at Prague Airport ex parte European Roma Rights Centre [2005] 2 AC 1, the relevant comparison was between the claimant and a notional child with a British citizen parent, or a parent about to become one. The circumstances were materially different under section 3(4) of the 1976 Act. The policy concerned family cohesion, the child’s best interests and the strength of the family’s connection with the United Kingdom, rather than parental nationality as such.
4. The reasoning was consistent with R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289. A difference connected with nationality is not racial discrimination where the underlying circumstances are materially different. The motive behind the distinction was irrelevant once the difference in treatment was shown to be on racial grounds, as explained in Nagarajan v London Regional Transport [2000] 1 AC 501, but the distinction here was not in truth based on nationality.
5. Article 14 added nothing. Assuming, without deciding, that the policy fell within the ambit of Article 8, the material difference between the two categories justified the different treatment, applying the formulation in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173. The rationality and legitimate-expectation arguments therefore also failed.
6. The application for judicial review was dismissed. Costs followed the event, with the defendant’s costs payable by the litigation friend until 4 September 2008 and thereafter by the claimant.

First-instance judicial review. No prior appellate decision is stated in the judgment.