Miah, R (on the application of) v Secretary of State for the Home Department

Where removal depends on whether a person is a British citizen or has a right of abode, that issue may justify judicial review rather than an out-of-country appeal. This is especially so where there are special or exceptional circumstances, including a prior judicial determination of the same issue. A right of abode is a statutory right and cannot be created or removed by ministerial decision, the issue being determined by the statutory conditions. A person already judicially found to be the lawful child of a British citizen cannot be removed as an illegal entrant merely because documents later produced for another purpose are considered unreliable.

The claimant challenged the Secretary of State’s decision to remove him as an illegal entrant under Schedule 2 to the Immigration Act 1971. He claimed British citizenship by descent and a right of abode through his father, who had been naturalised as a British citizen before the claimant’s birth.

The claimant had entered the United Kingdom in 2002 using a certificate of entitlement issued after an Immigration Tribunal allowed his appeal and found that he was the lawful son of a British citizen. The Secretary of State later relied on allegedly unreliable family documents when refusing or delaying a British passport application and concluded that the original entry had been unlawful. The central issues were whether judicial review was appropriate despite an out-of-country appeal and whether the earlier Tribunal determination resolved the claimant’s citizenship and right of abode.

1. Application of judicial review. The court rejected the submission that the claimant’s adequate remedy was an out-of-country appeal. Although the authorities generally support that procedure for foreign nationals disputing breaches of leave conditions or deception, this case concerned the precedent fact of British citizenship and right of abode. The prior Tribunal determination constituted a special and exceptional circumstance supporting judicial review.
2. Effect of the prior determination. The Tribunal had found, on evidence independent of the documents later criticised by the Secretary of State, that the claimant was the lawful son of a British citizen and entitled to a certificate of entitlement. That determination rendered the issue res judicata. It would be unfair, wasteful and absurd to remove the claimant and require him to establish the same matter again abroad.
3. Statutory status. Right of abode is a statutory right, not a matter of ministerial discretion. On the established parentage, the claimant was a British citizen by descent under sections 2(1) and 5(1) of the British Nationality Act 1948, and therefore had a right of abode under section 2(1)(a) of the Immigration Act 1971. The burden of proof under section 3(8) did not justify disregarding the prior determination.
4. Removal decision. The Secretary of State’s critical assumption—that the documents later found unreliable were the documents used for the claimant’s 2002 entry—was false. The claimant was not an illegal entrant, and the removal provisions in Schedule 2 to the Immigration Act 1971 did not apply. The removal decision dated 16 October 2014 was unlawful and was quashed. The Secretary of State was ordered to pay the claimant’s costs.

Permission for judicial review was initially refused on the papers but was granted after an oral hearing on 18 February 2016. The present judgment was a first-instance decision of the High Court (Administrative Court).