Secretary of State for the Home Department v Ize-Iyamu

The right of abode is determined by the specific statutory conditions in force. A general intention to remove historic sex discrimination does not permit a court to rewrite earlier citizenship provisions or dispense with conditions imposed by later legislation.

In section 2(1)(b)(ii) of the Immigration Act 1971, “so had it” requires the grandparent to have acquired citizenship in the same territorial manner as the parent. A provision preserving the freedom of settled Commonwealth citizens limits rule-making powers only. It does not create a right of abode for their children.

The respondent, born in Nigeria in 1975, applied for a certificate confirming a right of abode in the United Kingdom. He relied principally on descent through his mother, who had been born in St Kitts, Nevis and Anguilla, and alternatively on his father.

The Secretary of State refused the application. The First-tier Tribunal allowed the respondent’s appeal. The Upper Tribunal dismissed the Secretary of State’s appeal, holding that the remedial provisions concerning maternal descent supported the respondent’s claim.

The Secretary of State appealed to the Court of Appeal. The central issue was whether the respondent satisfied any statutory route to the right of abode under the citizenship and immigration legislation.

1. Appeal allowed unanimously. Moore-Bick LJ, with whom Beatson and Underhill LJJ agreed, held that the respondent had no right of abode and was not entitled to a certificate of entitlement.

2. He could not acquire British citizenship through his father. The father had ceased to be a citizen of the United Kingdom and Colonies when Nigeria became independent, before the respondent’s birth. He could not therefore transmit that status for the purposes of section 11 of the British Nationality Act 1981.

3. Nor could the respondent obtain citizenship through his mother under section 4C of that Act. Registration was required, and the statutory conditions included both the counterfactual citizenship requirement under section 5 of the British Nationality Act 1948 and a historic right of abode under section 2 of the Immigration Act 1971. The latter condition was not met.

4. In the historic section 2(1)(b)(ii), “so had it” meant that the relevant grandparent had acquired citizenship in the same way, namely in the United Kingdom or the Islands. It did not mean merely that the grandparent also held citizenship. R (Bhawan) v Secretary of State for the Home Department [2009] EWHC 469 (Admin) was correctly decided on that point.

5. The alternative Commonwealth-citizenship route also failed because it required a parent to have acquired citizenship by birth in the United Kingdom or the Islands. Section 45 of the Borders, Citizenship and Immigration Act 2009 removed the discriminatory effect of the earlier paternal-descent rule only through the conditions Parliament enacted. It did not permit “father” in the former legislation to be read generally as “father or mother”.

6. Section 1(5) of the Immigration Act 1971 did not assist. It confined the Secretary of State’s rule-making power and created no right of abode. The successful citizenship application of the respondent’s brother could not create a legitimate expectation or make the refusal of this application an abuse of power.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and held that the respondent had no right of abode: [2016] EWCA Civ 118.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal from the First-tier Tribunal.

• First-tier Tribunal: Allowed the respondent’s appeal against the refusal of a certificate of entitlement.