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

For registration under section 4B of the British Nationality Act 1981, the Secretary of State must be satisfied that the applicant has no other citizenship or nationality. That factual assessment is primarily for the Secretary of State and can be challenged on judicial review only for irrationality. A passport apparently lawfully issued by another state is prima facie evidence of that state’s nationality, although the presumption is rebuttable. An applicant asserting that the passport does not establish nationality must provide a cogent explanation and, where appropriate, evidence from the foreign authorities or expert evidence on foreign law. The statutory distinction between British overseas citizens with no other nationality and dual nationals was objectively justified and proportionate for Article 14 purposes.

The claimant, born in Aden in 1966, had become a British overseas citizen and later obtained an Indian passport. Her application for registration as a British citizen under section 4B of the British Nationality Act 1981 was refused and the refusal was maintained on review. The Secretary of State considered that the claimant had not established that she lacked Indian nationality or had not lost it through action or inaction.

The claimant sought judicial review, arguing that the undisputed evidence required registration. In the alternative, she argued that section 4B was incompatible with Articles 8 and 14 of the Convention because it did not permit registration of a dual national.

1. Claim dismissed. The Secretary of State’s conclusion under section 4B(2)(b) of the British Nationality Act 1981 was a factual judgment primarily entrusted to her. It could be impugned only if irrational, namely if no reasonable Secretary of State properly directing herself could have reached it.
2. The claimant’s Indian passport was prima facie evidence of Indian nationality. The Secretary of State was entitled to treat that evidence as generating a rebuttable presumption and to require a cogent explanation of how the passport had been issued and why it did not establish nationality. The claimant had produced neither sufficiently clear written confirmation from the Indian authorities nor expert evidence on Indian law.
3. The court should not undertake its own interpretation or speculation about foreign nationality law. The relevant foreign law and its application to the facts should ordinarily be established by appropriate evidence, including expert evidence where necessary. The materials relied on by the claimant did not make the Secretary of State’s assessment irrational.
4. The challenge under the Human Rights Act 1998 failed. It was doubtful whether the facts fell within Article 8, which was necessary before Article 14 could be invoked. In any event, the distinction between a person with only British overseas citizenship and a dual national pursued the legitimate aim of addressing the position of persons who might otherwise be effectively stateless. It bore a reasonable and proportionate relationship to that aim.
5. The claim was dismissed. The usual costs order in a legally aided case was made, including detailed assessment. Permission to appeal was refused because there was no real prospect of success and no other compelling reason for an appeal.

The judgment itself records no earlier judicial decision in the same proceedings. Permission for judicial review was granted on 7 December 2011. The High Court dismissed the claim and refused permission to appeal.