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

Whether a person is a British citizen entitled to a British passport is a question of fact, not an exercise of executive discretion. On judicial review, the court must determine the issue for itself on the evidence and affords no margin of appreciation to the Secretary of State.

The claimant bears the burden of proving citizenship on the balance of probabilities. That burden includes establishing the reliability of documents relied upon. The court must assess the evidence in the round, exercising caution before drawing adverse inferences from demeanour, particularly where evidence is given through an interpreter.

The claimant sought judicial review of the refusal of his application for a British passport. He asserted that he was Taha Riash, the legitimate son of Ali Mohammed, and therefore a British citizen by descent. The Secretary of State contended that he was in fact Taha Al-Suraimi, a former illegal overstayer who had been removed from the United Kingdom.

The central issues were whether the claimant was Taha Riash, whether that person was born on 9 June 1971, whether he was the legitimate son of Ali Mohammed, and whether Ali Mohammed had the requisite British nationality at the time of birth.

1. Applicable legal principles. The effect of section 5(1) of the British Nationality Act 1948, section 2 of the Immigration Act 1971, and sections 11 and 50(9) of the British Nationality Act 1981 was that a legitimate child of a person meeting the statutory nationality requirements was a British citizen. The claimant bore the burden of proving that status on the balance of probabilities, pursuant to section 3(8) of the Immigration Act 1971.
2. The question whether a person was a British citizen was factual rather than discretionary. On a judicial review challenge, the court therefore had to determine the matter itself and could not grant the Secretary of State a margin of appreciation. The approach in R (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 and R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin) was applied.
3. The claimant also had to establish the reliability of the documents relied upon. The principles in MA (Bangladesh) v Secretary of State for the Home Department [2016] EWCA Civ 175, approving Tanveer Ahmed v Secretary of State for the Home Department [2002] UK IAT 00439, were applied.
4. Care was required before attaching weight to demeanour. That caution was heightened because the claimant gave evidence through an interpreter. The judge rejected an adverse inference based on alleged evasiveness, but assessed the adequacy of the claimant’s explanations and the evidential weaknesses in the case.
5. The authentic Yemeni documents, including birth, identity, passport and marriage records, established that Taha Riash existed and was the legitimate son of Ali Mohammed. The gap in Ali Mohammed’s seaman’s record was more probably explained by his return to Yemen than by the Secretary of State’s alternative account. The claimant’s possession of genuine family documents and support from Ali Mohammed’s family were powerful considerations in his favour. The adverse matters, including the absence of DNA evidence and inconsistencies in the 2007 visa material, required caution but were not conclusive.
6. The claimant had proved that he was Taha Riash, that Ali Mohammed was in Yemen when he was conceived, and that he was a legitimate child of Ali Mohammed. He was therefore a British citizen and entitled to relief.