Akinfolarin v Secretary of State for the Home Department

A certificate of entitlement to a right of abode confirms, but does not confer, the underlying right. The right arises only where the statutory criteria in section 2 of the Immigration Act 1971 are met. The certificate may therefore be revoked under regulation 9(a) of the 2006 Regulations where the holder does not have that right. Section 2A of the 1971 Act applies to deprivation of an existing right of abode, not to revocation of a certificate issued on a mistaken basis. Under section 3(8), the person asserting British citizenship bears the burden of proving it. A decision based on an unresolved death registration in the claimant’s name, and the absence of evidence undermining that registration, was neither irrational nor unlawful.

The claimant sought judicial review of the Secretary of State’s decision to revoke his certificate of entitlement to a right of abode. The certificate had been issued on the basis of a birth certificate in the name Oladayo Olawanle Akinselure. A death certificate recorded the death of a person with the same name in 1973. The claimant had previously challenged the refusal to renew his British passport, but permission for that claim was refused by Burnett J.

The central issues were whether the certificate conferred the right of abode, whether section 2A of the Immigration Act 1971 governed its revocation, and upon whom the burden of proof lay.

1. The application for judicial review was dismissed. The Secretary of State had revoked the certificate of entitlement, not the claimant’s underlying right of abode.
2. Regulation 9 of the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 distinguishes between a person who does not have a right of abode under section 2(1) of the Immigration Act 1971 and a person deprived of that right by an order under section 2A. The distinction would be unnecessary if the certificate and the right were the same thing.
3. Section 3(9)(e) of the 1971 Act provides a means of proving an existing right of abode. It does not make the certificate the source of that right. Similarly, the former appeal provision in section 82(2)(c) of the Nationality, Immigration and Asylum Act 2002 did not support the claimant’s construction.
4. The burden under section 3(8) of the 1971 Act lay on the claimant, as the person asserting that he was a British citizen. The Secretary of State had no power to confer British citizenship or a right of abode where the statutory criteria were not met.
5. The unresolved death registration in the claimant’s birth name, together with the absence of evidence from those responsible for reporting the death to show that it was erroneous, provided a proper basis for concluding that the certificate had been issued on a false basis. The decision could not be characterised as irrational or unlawful.
6. The earlier letter stating that the claimant had a right of abode did not alter the position. It pre-dated the revocation and could not confer a status which the Secretary of State had no legal power to confer.

The judgment describes earlier judicial review proceedings in which Burnett J refused permission to challenge the refusal to renew the claimant’s British passport. The present claim was a first-instance judicial review of the later revocation decision.