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

Registration under section 4B of the British Nationality Act 1981 is an entitlement where the statutory conditions are met. The Secretary of State must be satisfied that the applicant has no other citizenship or nationality, but that fact-finding exercise is subject to heightened judicial scrutiny because citizenship is fundamental and the provision addresses historic injustice. The court reviews the reasonableness of the fact-finding exercise, rather than applying proportionality. Possession of a foreign passport is prima facie evidence of nationality. The applicant bears the burden of showing, on the balance of probabilities, that it was not validly issued or does not establish nationality. The assessment remains fact-specific and must take account of the relevant historical and political context.

Four British Overseas Citizens of Somali heritage, born in the former Crown Colony of Aden, sought registration as British citizens under section 4B of the British Nationality Act 1981. They had no right of abode in the United Kingdom and had used Somali passports, although they contended that they had never acquired Somali nationality. Somali nationality law required acquisition by descent, declaration or grant, generally involving renunciation of foreign nationality.

The Secretary of State was not satisfied that the claimants lacked Somali nationality and refused their applications. The central issues were the intensity of judicial review, the effect of possession of Somali passports, and whether the evidence displaced the resulting prima facie inference.

1. Outcome. Permission to apply was granted, but all four claims for judicial review were dismissed.
2. Applicable review. Section 4B registration is by entitlement, not discretion, if its conditions are satisfied. The Secretary of State’s satisfaction remains reviewable. Given the fundamental importance of citizenship, the absence of any other right of abode and the provision’s purpose of remedying historic injustice, heightened scrutiny was required. However, the appropriate review was an intensive reasonableness review of the fact-finding exercise, not proportionality review.
3. Foreign nationality. The question whether an applicant possesses another nationality must be assessed by reference to the relevant foreign law and the evidence. The Secretary of State may make findings of fact. The burden lay on each claimant to establish, on the balance of probabilities, that the Somali passport was not validly issued or did not establish Somali citizenship.
4. Three claimants holding Somali passports. Their passports were prima facie evidence that the Somali authorities had issued them on the basis that they were Somali citizens. The embassy letters stating that the passports had been issued in error were brief and unexplained. The evidence did not adequately explain the passport applications, the checks undertaken, or why current passports had not been cancelled. In the circumstances, the Secretary of State was entitled not to be satisfied that the claimants lacked Somali citizenship.
5. Ameen. His case was that the passport was forged. The application did not adequately explain the circumstances of its acquisition, discrepancies in dates, or the absence of verification by Somali officials. Important supporting documents were produced only in the judicial review proceedings and were not before the decision-maker. The Secretary of State was therefore entitled to reach the same conclusion.
6. The decisions were lawful on the material before the Secretary of State. The claimants could consider making fresh applications supported by fuller evidence.

Not stated in the judgment. This was a first-instance judicial review decision.