Safa Jama Abdi Al Hashemi & Anor, R (on the application of) v The Secretary of State for the Home Department

British nationality acquired by birth under the British Nationality Act 1948 depends on the status of the territory at the time of birth. Where sovereignty over the territory has passed to an independent state, the former territory is no longer a colony for the purpose of acquiring citizenship by birth. The absence of a replacement nationality does not justify reading the legislation as continuing British nationality. Statutory provisions dealing with preservation or loss of existing citizenship cannot be converted into provisions conferring citizenship on persons born after independence.

The claimants, ethnic Somalis born in Aden in January and February 1968, sought to quash refusals by HM Passport Office to issue British Overseas Citizen passports. They argued that they had acquired Citizen of the United Kingdom and Colonies status under section 4 of the British Nationality Act 1948, because the former nationality law continued to apply until South Yemen enacted nationality legislation in August 1968.

The Secretary of State relied on Aden’s independence on 30 November 1967 and section 1(1) of the Aden, Perim and Kuria Muria Islands Act 1967. The central issue was whether persons born in Aden after independence could acquire British nationality by birth.

1. Claim dismissed. The issue was a question of statutory interpretation for the court.
2. Section 4 of the British Nationality Act 1948 established a jus soli scheme. Acquisition of citizenship depended on birth within the United Kingdom and Colonies. The relevant territorial status had to be determined from the wider constitutional and statutory materials.
3. By the time of the claimants’ births, sovereignty over Aden was no longer British. Under section 1(1) of the Aden, Perim and Kuria Muria Islands Act 1967, Aden had ceased to form part of Her Majesty’s dominions. It therefore could not be treated as a colony for the purposes of section 4 of the 1948 Act.
4. The 1967 Act demonstrated an intention for a swift and clean break with Aden. Its provisions concerning the loss and preservation of existing citizenship did not preserve a power to confer British citizenship on persons born after independence. The independence provisions and nationality provisions could not be artificially separated.
5. Avoiding statelessness was desirable, but it could not justify a construction that contradicted the clear statutory language. There was no dispensing power enabling the court to confer citizenship in the circumstances.
6. The relevant observation in R (Nooh) v Secretary of State for the Home Department [2018] EWHC 1572 (Admin) concerned persons born before independence. It was obiter in relation to acquisition by persons born afterwards and could not govern the present case.