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

A person asserting British citizenship bears the burden of proving the relevant facts on the balance of probabilities. Documentary evidence, including official documents issued abroad, must be assessed in the round with the other evidence. The question is whether the document can properly be relied on, not merely whether it is forged. An earlier certificate of entitlement is relevant evidence but is not conclusive where its underlying basis is disputed. It cannot prevail where the factual basis for issuing it is later shown to be mistaken. Where that basis remains undisputed, the certificate must nevertheless be weighed with all other evidence.

The claimant sought judicial review of the refusal to issue him a British passport and of a removal notice. He asserted that he was born in Bangladesh in 1975 to Suroth Ali and Mortuza Bibi, and that Suroth Ali had become a citizen of the United Kingdom and Colonies in 1974. The Secretary of State accepted that, if those facts were proved, the claimant was a British citizen by descent.

The central dispute was the claimant’s date of birth. Earlier applications recorded 16 April 1971, while later documents and oral evidence supported a birth in 1975. The court also considered the significance of a certificate of entitlement issued in 2004 and the reliability of Bangladeshi documents.

1. Statutory entitlement. Under section 5(1) of the British Nationality Act 1948, a person born after commencement became a citizen of the United Kingdom and Colonies by descent if his father was such a citizen at the time of birth. The claimant therefore had to prove that he was born after his father acquired that status. The burden under section 3(8) of the Immigration Act 1971 was on the claimant, and the standard was the balance of probabilities, as stated in R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin).

2. Certificate of entitlement. The reasoning in R (Rasul) v Secretary of State for the Home Department [2017] EWHC 1306 (Admin) established that a certificate cannot prevail where it is subsequently discovered that the basis on which it was issued was mistaken. That qualification did not apply here because it was not suggested that Suroth Ali was not a British citizen. The 2004 certificate was therefore relevant, although far from conclusive.

3. Assessment of documents. The court applied the approach in MA (Bangladesh) v Secretary of State for the Home Department [2016] EWCA Civ 175, adopting the principles derived from Tanver Ahmed v Secretary of State for the Home Department [2002] UK 1AT 00439. Documents had to be assessed for both their provenance and their contents, in the context of all the evidence. The absence of detailed enquiries by the Secretary of State created no presumption in the claimant’s favour. The same approach was compatible with Singh v Belgium (33210/11) 2 October 2002 and was appropriate in this nationality case.

4. Result. Weighing the conflicting documents, oral evidence, family evidence, age assessments and the 2004 certificate, the claimant proved on the balance of probabilities that he was born in 1975 and was the son of Suroth Ali and Mortuza Bibi. He was therefore a British citizen. The court granted a declaration to that effect and quashed the challenged decisions.