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

A claim concerning nationality acquired automatically by operation of law is determined by the court as a question of precedent fact. The court must decide for itself whether the claimant has established the facts giving rise to that status, without deference to the Secretary of State’s factual assessment. The civil standard is the balance of probabilities. Guidance issued to passport examiners provides evidential assistance, but it is not a checklist. The evidence must be evaluated in the individual case, including cultural and linguistic explanations for variations in names and dates. Where the statutory conditions are established, the Secretary of State has no discretion to refuse the corresponding passport.

Four siblings claimed to have been born in Aden before 14 August 1968 to Somali parents. They sought declarations that they were British Overseas citizens and orders quashing refusals of their applications for British Overseas citizen passports.

The Secretary of State relied principally on discrepancies in identity documents, names and dates of birth, and on the applicants’ interview answers. The claims were linked because the applicants were members of the same family and relied on common evidence. The central issue was whether, on the evidence, each claimant had established the identity, parentage, nationality, date and place of birth necessary to acquire British Overseas citizen status.

1. The claims succeeded. Each claimant established, on the balance of probabilities, that he or she was born in Aden before 14 August 1968 to Somali parents. Each therefore remained a citizen of the United Kingdom and Colonies after the application of the British Nationality (People’s Republic of Southern Yemen) Order 1968 and became a British Overseas citizen on 1 January 1983. Declarations were granted accordingly.
2. Following R. (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432, the issue was one of precedent fact. The court was required to resolve the facts and law for itself, rather than review the rationality of the Secretary of State’s assessment or afford deference on factual issues. The Secretary of State had no discretion to refuse a passport where the claimant possessed the status as a matter of law.
3. The burden rested on the claimants, applying the civil standard, as stated in R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin). The court considered the evidence in the round, including authentic Aden birth certificates, the BP Refinery family clinic card, a Somali Embassy family certificate and passports.
4. The 2013 Guidance supplied suggested evidential tools and techniques. It did not create a tick-box exercise. The examiner had to evaluate the evidence and exercise judgment in each case. Variations in Somali, Arabic and English spellings, the absence of conventional family names, differing cultural approaches to birth dates, and inconsistencies in documents did not necessarily undermine identity.
5. The court applied the approach to lies and dishonest evidence explained in MA (Somalia) v SSHD [2010] UKSC 49. The significance of a lie depended on its connection with the central issues and on the evidence as a whole. The claimants’ admitted alterations to dates of birth did not outweigh the substantial independent documentary evidence.