Begum & Ors, R (On the Application Of) v The Entry Clearance Officer, Dhaka

In a certificate-of-entitlement claim, the court must determine as a precedent fact whether the applicant has the claimed relationship and consequent right of abode. The applicant bears the burden of proving entitlement on the balance of probabilities. Where fraud is alleged, the Secretary of State bears the burden of proving it, also on the balance of probabilities, while properly considering the seriousness of the allegation. Documents specified by the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 are not necessarily indispensable: the Secretary of State may waive the documentary requirement where appropriate and otherwise satisfied of the right of abode. The court may find entitlement even where a particular document is not authentic, provided the relationship and statutory conditions are established by other evidence.

The claimants, a mother and daughter, sought judicial review of decisions refusing certificates of entitlement to the right of abode. The mother relied on an alleged pre-1983 marriage to a man who had become a citizen of the United Kingdom and Colonies by registration. The daughter relied on being his child and therefore a British citizen by descent under the British Nationality Act 1981.

The Entry Clearance Officer considered their marriage and birth certificates non-genuine following document-verification investigations. Earlier applications, appeals and judicial review proceedings had resulted in reconsideration decisions. The present claims challenged refusals dated 18 August 2017. The principal issue was whether the claimants had established the relevant relationships and right of abode as a matter of precedent fact.

1. Claims allowed. The refusals dated 18 August 2017 were unlawful and quashed. The claimants were entitled to certificates of entitlement because they established the relevant rights of abode.
2. The court had to determine as a matter of precedent fact whether the claimants had the claimed relationships with FR. The mother established on the balance of probabilities that her marriage certificate was genuine and that she had married FR on 21 August 1975. The daughter established that her birth certificate was genuine and that she was FR’s daughter.
3. Under section 2 of the Immigration Act 1971, the mother’s claimed marriage to a CUKC who had the right of abode before 1 January 1983 engaged the former section 2(2) route, continued by the current section 2(1)(b). The daughter was a British citizen by descent under section 2(1) of the British Nationality Act 1981, and therefore had a right of abode under the 1971 Act.
4. Regulation 4 of the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 requires specified documents to accompany an application, but regulation 4(2) permits waiver where appropriate and the Secretary of State is otherwise satisfied that the applicant has a right of abode. Regulation 6 requires satisfaction of the right of abode; it does not make authenticity of the specified document an independent absolute condition where entitlement is otherwise established.
5. The claimants bore the burden of proving entitlement on the balance of probabilities. The Secretary of State bore the burden of proving that the documents were fraudulent, also on that standard, with due regard to the seriousness of the allegation. The evidence had to be assessed as a whole. The court gave greater weight to evidence from the relevant registrar concerning the signature and missing records than to an unexplained assertion of non-genuineness.
6. Having resolved the precedent-fact issue, it was unnecessary to determine the alternative public-law grounds, which could at most have resulted in quashing without findings establishing the claimed relationships.

The claims were originally issued in the Upper Tribunal. The mother’s claim was transferred to the High Court because it raised nationality issues outside the Upper Tribunal’s jurisdiction; the daughter’s claim was transferred later. Permission to proceed was ultimately granted to both claimants by UTJ Markus QC sitting as a Deputy High Court Judge. The present judgment determined the substantive judicial review claims.