Nguyen & Anor, R (On the Application Of) v Secretary of State for the Home Department

Registration under the relevant Hong Kong nationality provisions requires the applicant to satisfy the statutory conditions, including that the applicant would otherwise have been stateless at birth where that condition applies. The decision-maker may assess nationality on the evidence available, including evidence given by a parent in earlier immigration and nationality applications. A claimant cannot establish an arguable public-law error merely by asserting that other matters, such as a parent’s refugee history, should have been considered without explaining their legal relevance. Where the evidence establishes that an applicant acquired another nationality at birth, the statelessness condition is not met and it is immaterial whether a parent also held a qualifying British nationality.

The claimants, siblings born in Hong Kong in 1999 and 2000, sought registration as British citizens. Their applications were refused and reconsidered after earlier proceedings. The Secretary of State concluded that their father was Vietnamese when they were born and that, under Vietnamese nationality law, the claimants therefore acquired Vietnamese nationality. They challenged the refusal on the grounds that irrelevant matters had been considered, relevant matters omitted, an excessive burden of proof applied, and the Secretary of State had misunderstood the statutory route to registration. Permission for judicial review had previously been refused on the papers. The renewed application concerned whether either ground was arguable.

1. Permission refused. Neither ground of challenge was arguable.
2. The Secretary of State’s decision was properly reasoned. It set out the relevant evidence, including information supplied by the claimants’ father in his visa and British citizenship applications. The decision-maker did not impose an improper or excessive burden of proof and did not omit any legally relevant consideration.
3. The evidence entitled the Secretary of State to find that the claimants’ father was Vietnamese when they were born. Their mother was either stateless or Vietnamese. Under Articles 16 and 17 of Vietnamese nationality law, the claimants were consequently Vietnamese citizens at birth.
4. Article 6(2) of the Hong Kong (British Nationality) Order 1986 applies only where the person would otherwise have been born stateless. Since the claimants were not stateless at birth, that statutory route was unavailable. It was therefore immaterial whether either parent held British National (Overseas) status at the relevant time.
5. The submission that the father’s status as a refugee should have affected the assessment of his citizenship was not supported by any explanation of its legal relevance.

Permission for judicial review was refused on the papers by Charles Bourne QC, sitting as a Deputy High Court Judge. The renewed application was refused by the Administrative Court.