Case No: C5/2007/2008
Neutral Citation Number: [2008] EWCA Civ 109
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: IA/09891/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 24th January 2008

Before:

SIR PAUL KENNEDY
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Between:

	JH (ZIMBABWE)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms H Gore (instructed by Messrs Modsons) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Sir Paul Kennedy:

1.	This is a renewed application for permission to appeal against the decision of the Asylum and Immigration Tribunal promulgated on 2 May 2007, when after reconsideration it dismissed the appellant’s appeal from a decision of the Secretary of State not to certify under Section 10 of the Nationality, Immigration and Asylum Act 2002 that the applicant has the right of abode in the United Kingdom.

2.	That decision was communicated to the applicant in a letter dated 2 August 2006.  The background facts are clear and not in dispute.  The applicant was born on 8 March 1960 in what was then Southern Rhodesia and is now Zimbabwe.  Her father had British nationality and had been born in Luton; her mother was Rhodesian.  They had undergone a ceremony of marriage on 7 July 1959 in Bulawayo under Sunni Muslim law, possibly choosing that form of ceremony because at that time the civil authorities in Southern Rhodesia did not countenance marriages between persons of different races.  In March 2001, at the age of 41, the applicant came to the United Kingdom initially to study and here she has remained.

3.	I turn now to the statutory provision which she sought to invoke.  Section 10 merely provides that the Secretary of State may by regulations make provision for the issue to a person of a certificate that he or she has the right of abode in the United Kingdom; it does not indicate the test to be applied by the Secretary of State when deciding whether or not to issue a certificate.  As envisaged by Section 10, regulations were made in relation to procedural matters such as to how to make an application and what documents should accompany it.  There is no suggestion that the applicant failed to comply with the procedural requirements in this case, but the regulations, the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006, do, in paragraph 6, set out when a certificate of entitlement will be issued.  It will only be issued where the appropriate authority is satisfied that the applicant a) has a right of abode in the United Kingdom under Section 2(1) of the Immigration Act 1971.  

4.	For present purposes I can ignore the rest of paragraph 6, which deals with disqualifications which do not apply to this applicant.  Furthermore the 2006 Regulations were not brought into force until 21 December 2006 so they were not in force when the Secretary of State made his decision in this case.  Section 2(1) of the Immigration Act 1971 as substituted by the British Nationality Act 1981 was, however, in force and, so far as relevant, it provides that:

“A person is under this Act to have the right of abode in the United Kingdom if- 
…
(b) he or she is a commonwealth citizen who- 
(i)	immediately before the commencement of the British Nationality Act 1981 [for all relevant purposes it commenced on 1 August 1983] was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of Section 2 (1)(d) or Section 2(2) of this Act as then in force; and 
(ii)	has not ceased to be a commonwealth citizen in the meanwhile.”

5.	A commonwealth citizen is defined for the purposes of Acts passed  before 1983 by Section 51(1) of the British Nationality Act 1981.  I need not pause to cite that definition because it has always been accepted that the applicant fell within it.  But did she, before 1 January 1983, have the right of abode in the United Kingdom by virtue of Section 2(1)(d) or Section 2(2) of the British Nationality Act 1981 as then enforced?  That requires me to look at those sub sections.  Section 2(1)(d) provided so far as relevant:

“(1) A person is under this Act to have the right of abode in the United Kingdom if-
(d) he is a Commonwealth citizen born to a parent who at the time of the birth had citizenship of the United Kingdom and Colonies by virtue of his birth in the United Kingdom.”

6.	Section 2(2) does not assist.  It deals with the position of female commonwealth citizens married to citizens of the United Kingdom and colonies; so the applicant, if she is to prove that she had such right of abode in the United Kingdom as would entitle her to a certificate, had on the face of it to show that she was born to a parent who at the time of the birth had citizenship of the United Kingdom and colonies.  At first sight one might think that presented no problems because she could rely on her father, but Section 50(9) of the British Nationality Act 1981 provided that for the purposes of that Act subject to a qualification relating to subsequent legitimation which has no application in this case:

“The relationship of father and child shall be taken to exist only between a man and any legitimate child born to him.”

7.	So what the applicant had to establish if she was to obtain a certificate was that at the time of her birth she was legitimate, which she could only be if the marriage of her father to her mother was recognised by the authorities of the state in which she was born.  

8.	Having looked at the legal framework I return now to this applicant’s application.  It caused the Secretary of State to make enquiries in Zimbabwe where the office of the Registrar of Births, Deaths and Marriages advised that the ceremony of 7 July 1959 and the certificate relating to that ceremony did not reflect a marriage solemnized according to the laws of Zimbabwe or rather Southern Rhodesia at the material time, the applicable law at the relevant time being the Marriage Act published as Chapter 150 of the 1939 Statute of Laws of Southern Rhodesia.  

9.	The applicant appealed against that decision and that appeal was heard by the Asylum and Immigration Tribunal on 3 October  2006; it was unsuccessful. Reconsideration was then ordered on the basis that the immigration judge failed to apply his mind to paragraph 14 of the Immigration Rules.  That paragraph reads:

“A commonwealth citizen who has been given limited leave to enter the United Kingdom may later claim to have the right of abode.  The time limit on his stay may be removed if he is able to establish a claim to the right of abode, for example by showing that 
i) immediately before the commencement of the British   Nationality   Act   1981 he was a Commonwealth citizen born to or legally adopted by a parent who at the time of his birth had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or any of the islands; and 
ii) he has not ceased to be a Commonwealth citizen in the meantime.”

10.	I am unable to see what that adds to the statutory provisions to which I have already referred but at the reconsideration hearing the parties agreed that what the Asylum and Immigration Tribunal had to decide was whether the applicant was the legitimate child of her parents.  For the reasons I have explained, that was the right question; and at paragraphs 7 and 8 the Asylum and Immigration Tribunal said:

“7.  In fact the respondent has produced some evidence on this point. There is a letter from solicitors in Harare to the Consul at the British Embassy in Harare stating that the marriage in question would not be valid under the relevant Rhodesian legislation.  What the strength of that evidence would be if there were evidence to the contrary we do not need to decide; it is in fact the only evidence that we have on the point and it suggests that the marriage is not legally binding.”

“8. We do not, however, have to rely on this evidence, for it is for the appellant to prove that the marriage is valid and she has not done so.”

11.	Miss Gore, on her behalf, now complains that the Asylum and Immigration Tribunal did not properly have regard to the presumption of marriage. That presumption is conveniently set out in paragraph  992 and 993 of the 4th Edition of Halsbury’s Laws of England in this form:

“992. Presumption from cohabitation without ceremony. 

Where a man and a woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, even if there is no positive evidence of any marriage ceremony having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.”

“993. Presumption from cohabitation after ceremony. 

Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a Special Licence or the death of a former spouse.  In most cases a certificate of marriage will be available, and this will usually suffice to prove the marriage.”

12.	I am told that there was evidence before the tribunal that the parents of the applicant lived together for over four years after the ceremony of marriage had been completed.  

13.	Miss Gore invited my attention to the decision of the tribunal in the case of FI  and  Others  (Bangladesh-presumptions-marriage-legitimacy) Banglasdesh [2005] UKIAT 00016.  That was a case in which the presumption of marriage was applied in relation to the situation which existed, but on the facts it is clear that that situation was entirely different from the one which arises in the present case.  There was simply no evidence either way, and accordingly it was thought right for the presumption to have effect.  That is not this case.  As I have already indicated, there was evidence before the tribunal and it went against the applicant.

14.	My attention has also been invited to the decision of Syed Shanur Ali v ECO (Dhaka) [1998] App no 18900, a decision of the Immigration Appeal Tribunal.  That relates to the application of Muslim law in Bangladesh, and for example at page 3 of the transcript it says:

“The general rule in Muslim law, as applied in Bangladesh, is that a child born to a valid marriage within 280 days after its dissolution, the mother remaining unmarried, is a legitimate child.”

Again that cannot be applied to the circumstances of the present case.  

15.	There has now been produced before me a letter from a firm of legal practitioners in Harare which has been obtained only this week which suggests that there is a third type of marriage recognised there, namely marriage by customary law, which might be regarded as applying to the circumstances of this applicant’s situation.  

16.	For my part I think a slightly more profitable line of enquiry is     that     indicated     by the decision of this court in the Chief Adjudication Officer v Kirpal Kaur Bath [1999]  EWCA Civ 3008.  In that case the history was entirely different from that with which we are concerned in the present case, but in that case the court did feel able to give effect to the presumption of legitimacy.  It seems to me possible that if this matter were to be reconsidered by the full court they would come to the conclusion that the tribunal had not given as much weight as it should have done to the possibility of that presumption applying in the circumstances of this case; and accordingly I am with some diffidence prepared to grant leave to appeal. 

17.	I should also say by way of a footnote this.  The section which causes the difficulty for this applicant is undoubtedly the section to which I have referred already, that is to say Section 50(9) of the British Nationality Act 1981.  In Section  9(1) of the Nationality Immigration and Asylum Act 2002 there is a new section 50(9) which, so far as I am aware, has not been brought into effect in a way which would benefit this particular applicant.  Were it to be brought into effect, then, as it seems to me, a more profitable course rather than expending further time and money on pursuing an appeal to the Court of Appeal would be to make a fresh application.  Beyond that I say no more so that she may have permission to appeal.

Order: Application granted