Rasul, R (On the Application Of) v Secretary of State for the Home Department

A certificate of entitlement to the right of abode, or the issue of a British passport, cannot create British citizenship or a right of abode where the statutory conditions are absent. Citizenship acquired by registration or naturalisation remains effective unless deprived or nullified, but citizenship claimed by descent depends on the citizenship of the relevant parent. Where that parent was never a British citizen, the dependent claimant never acquired citizenship or a right of abode. Guidance concerning deprivation or nullity therefore does not apply to a person who was never registered or naturalised. Residence without a right of abode or leave is not lawful residence for the purposes of paragraph 276B of the Immigration Rules. Exceptional personal circumstances may justify leave outside the Rules, but they do not permit the statutory or Rules-based requirements for indefinite leave to remain to be treated as satisfied.

The claimant had entered the United Kingdom believing that she was a British citizen by descent through her father. Her father later admitted that he had fraudulently assumed the identity of a British citizen and had never himself held British citizenship. The claimant’s British passport was revoked.

She challenged the refusal of indefinite leave to remain based on ten years’ continuous lawful residence under paragraph 276B of the Immigration Rules. The Secretary of State had instead granted limited leave outside the Rules on Article 8 grounds. The claim principally concerned whether the Nationality Instructions on deprivation and nullity, including their treatment of non-complicit children, applied and required the claimant to be treated as lawfully resident.

1. The claim was dismissed. The claimant had never been a British citizen. The only possible basis for her right of abode was citizenship under section 2(1)(a) of the Immigration Act 1971, but her asserted citizenship by descent depended on a father who was not a British citizen.

2. A statutory right of abode exists when a statutory condition is satisfied and does not depend on executive recognition. An erroneous belief by the Secretary of State, an endorsement of a certificate of entitlement, or the issue of a British passport cannot confer that right. The reasoning in Christodoulido v Secretary of State for the Home Department [1985] IAR 179 applied.

3. The distinction between citizenship acquired by registration or naturalisation and citizenship claimed by descent was material. Under R v Secretary of State for the Home Department ex p Naheed Ejaz [1994] QB 496, a granted certificate of naturalisation conferred citizenship notwithstanding an underlying false representation, leaving deprivation under section 40 as the relevant mechanism. By contrast, Bibi v Entry Clearance Officer [2008] INLR 683 confirmed that, absent registration or naturalisation in the claimant’s own name, the claim depended on the alleged parent’s status.

4. Chapter 55 of the Nationality Instructions did not apply. The provisions concerning non-complicit children addressed deprivation of existing citizenship, while the nullity guidance concerned registration or naturalisation. The claimant had experienced neither. The policy concerning children registered when a parent registered or naturalised could not assist her.

5. The claimant’s residence was not lawful residence under paragraphs 276A and 276B of the Immigration Rules because she had held neither a right of abode nor leave to remain. The Secretary of State was entitled to address the unusual circumstances by granting limited leave outside the Rules, but could not treat the claimant as satisfying the ten-year lawful-residence requirement.

The claim was initially issued in the Upper Tribunal. Permission was granted on one policy ground by His Honour Judge Cooke on 4 May 2016. On 16 December 2016 Upper Tribunal Judge Worster ordered transfer of the claim to the High Court. The High Court dismissed the judicial review claim.