Hashi vThe Secretary of State for the Home Department

A person challenging a citizenship deprivation order on the ground that it would cause statelessness bears the burden of proving that ground on the balance of probabilities. Genuine doubt does not suffice.

Foreign law is a question of fact. An appellate court should not interfere with a specialist tribunal’s conclusion based on competing expert evidence unless a proper basis for appellate intervention exists. Citizenship is a legal status and must be distinguished from the practical ability to obtain a passport.

Under rule 8(5) of the Special Immigration Appeals Commission (Procedure) Rules 2003, an extension of time is unavailable where the proposed appeal would be pointless and no special circumstances make refusal unjust. Statelessness might, in an appropriate case, constitute a special circumstance.

The Secretary of State deprived the appellant of British citizenship on national security grounds. His appeal to the Special Immigration Appeals Commission was lodged outside the 28-day limit. The Commission refused an extension because it found that deprivation would not make him stateless and that his delay reflected indifference.

The appellant appealed against that refusal. His human-rights ground was conceded to be precluded by S1 v SSHD [2016] EWCA Civ 560. It was also accepted that the challenge to the refusal of an extension could not succeed if the Commission had correctly decided the statelessness issue.

The central question was whether the Transitional Federal Charter had become part of Somali law by February 2004, so that the appellant retained or held Somali citizenship when his British citizenship was removed in June 2012.

1. Appeal dismissed unanimously. Longmore LJ held that the Commission had correctly found that the appellant was not stateless when deprived of British citizenship. Underhill and Lindblom LJJ agreed.

2. The person challenging the Secretary of State’s satisfaction under section 40(4) of the British Nationality Act 1981 bears the burden of establishing statelessness on the balance of probabilities. If the court remains in genuine doubt, the challenge fails. The court endorsed the approach recorded in Al-Jedda v SSHD [2012] EWCA Civ 358.

3. Foreign law is a question of fact. The Commission had heard competing Somali-law experts and was entitled to accept Professor Ahmed’s evidence that the Transitional Federal Charter acquired legal force when approved in February 2004. The appellant’s expert had previously given materially inconsistent evidence in separate proceedings. There was no legitimate basis for appellate interference.

4. The principles in Republic of Somalia v Woodhouse Carey S.A. [1993] QB 54 concerned the criteria by which an English court recognises a foreign state or identifies its representative. They did not determine whether a particular constitutional document had the force of foreign law. Conflicting regimes do not themselves prevent a law from existing.

5. Article 10(2) of the Transitional Federal Charter 2004 entitled a person of Somali origin born in Somalia to Somali citizenship. Read with Article 71(2), it prevailed over inconsistent national law, including the citizenship-loss provision in the 1962 Law. The appellant therefore retained or held Somali citizenship both after acquiring British citizenship and at the date of deprivation.

6. The relevant inquiry concerned de jure citizenship at the date of deprivation. That differed from the issue in Al-Jedda v SSHD [2014] A.C. 253, which concerned a person who might obtain another nationality by applying for it. A passport is evidence of citizenship, but citizenship itself is a matter of law.

7. Because any substantive appeal would have been pointless, refusal to extend time under rule 8(5) of the Special Immigration Appeals Commission (Procedure) Rules 2003 was not unjust. The court observed, without deciding, that actual or arguable statelessness might constitute a special circumstance. Permission to appeal was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the refusal to extend time and refused permission to appeal: [2016] EWCA Civ 1136.

2. Special Immigration Appeals Commission: The Commission refused to extend the 28-day appeal period. It found that deprivation would not make the appellant stateless and that refusal of an extension would not be unjust.

3. Secretary of State: The appellant was deprived of British citizenship under section 40(2) of the British Nationality Act 1981 on the ground that deprivation was conducive to the public good.