The Secretary of State for the Home Department v Tariq

Nationality for registration purposes is a de jure question. It is determined by the foreign state’s law, established through expert evidence, rather than by an agency’s assertion about a person’s nationality. A statutory certificate is conclusive only within the scope given to it by the relevant law. Under Pakistani law, a child under 21 was protected from automatic loss of citizenship arising from dual nationality. Where the applicant reached 21 after the statutory relevant day, failure to elect for the other nationality caused Pakistani citizenship to cease after that day. That amounted to loss through inaction and defeated the registration claim.

The respondent, who held British National (Overseas) status, applied for registration as a British citizen under section 4B of the British Nationality Act 1981. The Secretary of State refused the application on the basis that the respondent remained a Pakistani citizen or had lost that citizenship through inaction after the statutory relevant day.

The Administrative Court held that the requirements were met and quashed the refusal. On appeal, the respondent argued that the case had become academic because of a new immigration route for BNO holders. The Court of Appeal rejected that argument. The central issue was whether the respondent’s Pakistani citizenship had been lost through inaction after 19 March 2009.

Lord Justice Haddon-Cave delivered the judgment, with Lord Justices Coulson and Edis agreeing.

1. Disposition. The appeal was allowed on Ground 2. It was unnecessary to hear argument on Ground 1.
2. Live controversy and burden. The appeal was not academic because registration would confer British citizenship immediately, whereas the alternative BNO route involved a different and slower path to settlement. The applicant bore the burden of proving the facts required by section 4B, and the court had to determine for itself whether those requirements were satisfied.
3. Nationality as a matter of law. Whether a person is a national is a de jure question, determined by the actual law of the foreign state on the basis of expert evidence. It is not determined by what a state agency asserts about the person’s status. The Court applied the principle stated in Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62 and Pham v Secretary of State for the Home Department [2015] UKSC 19.
4. Application of Pakistani law. Under section 14 of the Pakistan Citizenship Act 1951, section 14(1) generally prohibited dual nationality, while section 14(1A) protected persons under 21 from automatic cessation. The unchallenged expert evidence established that the respondent’s Pakistani citizenship ceased when he reached 21 because he had not renounced his BNO status. That occurred after 19 March 2009 and constituted loss through inaction for the purposes of section 4B(2)(c) of the British Nationality Act 1981.
5. Consular letter. The Administrative Court wrongly preferred the Pakistani Consulate’s letter to the expert evidence. Section 19(1) of the Pakistan Citizenship Act 1951 authorised a certificate confirming that a person was a Pakistani citizen. Section 19(2) made the fact recorded in such a certificate conclusive. It did not authorise a negative certificate or make a consular letter conclusive evidence that a person was not a citizen. The refusal decision therefore stood.

• Court of Appeal (Civil Division) Allowed the Secretary of State’s appeal on Ground 2 under [2021] EWCA Civ 378.
• Administrative Court On 10 December 2019, held that the respondent met the statutory requirements for registration and quashed the refusal decision.