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. An apparently lawfully issued foreign passport is prima facie evidence of foreign nationality, even where the foreign law generally prohibits dual citizenship. The applicant must rebut that inference with documentary evidence from the issuing authorities. A bare assertion that the passport was issued in error is insufficient. The Secretary of State’s assessment is factual and is reviewable only for irrationality. A complaint about failure to follow procedural guidance concerns fairness rather than rationality and cannot ordinarily be raised for the first time on appeal.

The appellant was born in Aden and became a British Overseas Citizen under the British Nationality Act 1981. She had lived mainly in India, obtained an Indian passport, and used it to enter the United Kingdom before obtaining a British Overseas Citizen passport. The Secretary of State refused her application for registration as a British citizen under section 4B because she was not satisfied that the appellant had no other citizenship or nationality. Singh J dismissed the judicial review claim on irrationality grounds: [2012] EWHC 1841 (Admin). The appeal concerned whether the Indian passport could rationally justify that conclusion and whether the Secretary of State had failed to follow her own procedural guidance.

The appeal was dismissed. Lord Justice Rimer gave the judgment, with Lord Justices Tomlinson and McFarlane agreeing.

1. Section 4B of the British Nationality Act 1981 made registration conditional on the Secretary of State being satisfied that the applicant had no citizenship or nationality apart from British Overseas Citizen status. The question under section 4B(2)(b) was essentially factual. The primary judgment belonged to the Secretary of State, and the decision could be impugned only if no reasonable Secretary of State could have reached it on the evidence while properly directing herself.

2. The Nationality Staff Instructions did not establish that the appellant could not have held Indian citizenship. Although the guidance stated that Indian law generally prohibited dual nationality, it also stated that possession of an apparently valid Indian passport should not be assumed to result from error. The passport raised a presumption of Indian nationality. The appellant therefore had to provide documentary confirmation from the Indian authorities that the passport was issued in error and that she had either never been an Indian citizen or had lost that citizenship on a specified date. Repeated assertions of error were insufficient.

3. The general material about Indian citizenship law was expressly non-definitive. Only the Indian authorities could provide definitive advice on that law. The Secretary of State was therefore entitled to require an explanation from those authorities before being satisfied that the statutory conditions were met. The evidence supplied was exiguous: the appellant did not explain how the passport had been obtained, identify the alleged error, or obtain the requested confirmation. The refusal was consequently rational.

4. The material relied on by the appellant also did not establish that she had not, after 4 July 2002, renounced, relinquished or lost any Indian citizenship, as separately required by section 4B(2)(c). The alternative argument under section 4 of the Human Rights Act 1998 was abandoned.

5. The complaint that the Secretary of State had failed to follow paragraph 2.3 of the guidance concerned procedural fairness, not rationality. It had not been raised before Singh J, in the grounds of appeal, or in the appellant’s skeleton argument. It was a new point and was not entertained.

• Court of Appeal (Civil Division): Appeal dismissed. Lord Justice Rimer gave judgment, with Lord Justices Tomlinson and McFarlane agreeing.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Singh J dismissed the judicial review claim with costs: [2012] EWHC 1841 (Admin).