MB (Bangladesh) v Secretary of state for the Home department

Where a child born outside the United Kingdom claims British citizenship by descent through a father, the statutory definition may require proof that the child was legitimate. A polygamous marriage entered into abroad is void under Matrimonial Causes Act 1973 section 11(d) if either party was domiciled in England and Wales. A child of such a marriage may nevertheless be treated as legitimate under section 1 of the Legitimacy Act 1976, including its presumption of reasonable belief in the marriage’s validity. Tribunals must address that provision and decide whether the presumption has been rebutted. Where the evidence is materially disputed, the appellate court should remit the case for factual determination.

The appellant, a child living in Bangladesh, sought a certificate of entitlement to a right of abode as the alleged daughter of a deceased British citizen. Her application was refused for documentary deficiencies. The First-tier Tribunal dismissed her appeal in June 2010, and the Upper Tribunal dismissed a further appeal in January 2011.

DNA evidence established that the deceased was her father. The central issue became whether she was legitimate, given that her mother’s marriage to him was polygamous and potentially void under English law. The tribunals had not considered the statutory presumption in section 1(4) of the Legitimacy Act 1976. Further evidence, including an archive letter, created factual disputes requiring determination by the Upper Tribunal.

Appeal allowed and case remitted to the Upper Tribunal for redetermination on all evidence relating to legitimacy.

1. Regulation 6 of the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 required the appellant to establish a right of abode under section 2(1) of the Immigration Act 1971. Her citizenship claim depended on section 2(1) of the British Nationality Act 1981. Under the pre-amendment section 50(9), the relationship of father and child existed only between a man and his legitimate child. The later amendment did not apply to this child.
2. Under section 11(d) of the Matrimonial Causes Act 1973, a polygamous marriage entered into outside the United Kingdom is void if either party was domiciled in England and Wales. It was open to the tribunals to find that the father’s domicile in Bangladesh had not been established and that the marriage was void, or at least that its validity had not been proved.
3. Section 1 of the Legitimacy Act 1976 could nevertheless treat a child of a void marriage as legitimate where, at the relevant time, both or either parent reasonably believed that the marriage was valid, subject to the statutory domicile condition.
4. For a child born after the commencement of section 28 of the Family Law Reform Act 1987, section 1(4) created a presumption that one party reasonably believed the marriage valid, unless the contrary was shown. The tribunals’ failure to consider that presumption and assess whether it had been rebutted was an error of law.
5. The evidence, including the mother’s use of false documents and the disputed 1998 archive letter, required factual evaluation. The Court of Appeal rejected the contention that only one conclusion was reasonably available. The Upper Tribunal was to decide admissibility, weight and effect of the letter. The documentary objections otherwise fell away if legitimacy was established.

• Court of Appeal (Civil Division): allowed the appeal and remitted the case to the Upper Tribunal for redetermination on the legitimacy issue.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the further appeal in January 2011.
• First-tier Tribunal: dismissed the original appeal in June 2010.