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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Taher, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2274 (Admin) (31 August 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/2274.html Cite as: [2018] EWHC 2274 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 August 2018

Mrs Justice Lang :

1. The Claimant applies to quash the decision of the Defendant, made on 28 September 2016, to refuse his application for a passport as a British Overseas citizen ("BOC").
2. The Claimant claims to be a BOC on the basis that he is a person of Somali heritage, born in the former Crown Colony of Aden, prior to 14 August 1968, who did not acquire South Yemeni nationality on or before that date.
3. The Claimant applied for a passport on 22 February 2013. On 15 April 2013, the Defendant sought further information from him. The Claimant sent further information in July 2013. The Defendant's representative interviewed him on 7 June 2015.
4. Following the letter of refusal on 28 September 2016, there was pre-action protocol correspondence and the claim was filed on 30 December 2016, though not issued by the court until 18 January 2017. Permission to apply for judicial review, and an extension of time, was granted by Edward Pepperall QC, sitting as a Deputy Judge of the High Court, on 16 February 2018.
5. On 12 December 2017, I dismissed the Defendant's application to strike out this claim, together with other similar claims.
6. On 27 June 2018, I gave judgment in a lead case involving four claims by members of the Nooh family ("the Nooh litigation") in which I had the benefit of considering detailed submissions on the law and some generic evidence, which were also relevant to this case.

Legal framework

7. The parties agreed the legal basis upon which a Somali born in Aden may be a BOC and entitled to a passport accordingly.
8. Under s.1(1)(a) of the British Nationality and Status of Aliens Act 1914, any person born within His Majesty's dominions and allegiance was deemed to be a natural-born British subject.
9. Section 4 of the British Nationality Act 1948 ("the 1948 Act") materially stated that:

"…..every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth."

The term "citizen of the United Kingdom and Colonies" is commonly abbreviated to "CUKC".

10. By virtue of s.12(1)(a) of the 1948 Act, a person who was a British subject immediately before the commencement of the 1948 Act became a CUKC on commencement if he was born within the territories comprised at commencement in the United Kingdom and Colonies and would have been a CUKC if section 4 of the 1948 Act had been in force at the time of his birth.
11. The Colony of Aden was a Crown colony as at 1 January 1949, which was the date of commencement of the 1948 Act. So from 1 January 1949, every person born in the colony of Aden became a CUKC.
12. The Colony of Aden became the State of Aden within the British Protected Federation of South Arabia on 18 January 1963. It continued to be a British colony until independence.
13. The State of Aden became part of the independent state of the People's Republic of Southern Yemen (also known as South Yemen) on 30 November 1967. In 1989, South Yemen unified with the former Yemen Arab Republic (North Yemen) to create the Republic of Yemen.
14. The Aden, Perim and Kuria Muria Islands Act 1967 ("the 1967 Act") provided for the relinquishment of UK sovereignty over inter alia Aden. Paragraph 1(1) of the schedule to the 1967 Act headed "Change of citizenship" stated that:

"Except as provided by the following provisions of this Schedule, any person who, on such date as may be specified in an order made by the Secretary of State -

(a) in consequence of his connection with a territory designated by the order, possesses any such nationality or citizenship as may be specified by the order, whether he acquired that nationality or citizenship before that date or acquires it on that date, and

(b) immediately before that date is a citizen of the United Kingdom and Colonies,

shall on that date cease to be a citizen of the United Kingdom and Colonies."

15. The relevant "order" referred to in the 1967 Act that was made by the Secretary of State was the British Nationality (People's Republic of Southern Yemen) Order 1968 ("the 1968 Order"), which provided that:

"For the purposes of paragraph 1 of the schedule to the Aden, Perim and Kuria Muria Islands Act 1967 (which provides, subject to exceptions, for the loss, on such date as may be specified by order, of citizenship of the United Kingdom and Colonies by a person possessing on that date such nationality or citizenship as is so specified by reason of his connection with a territory designated by the order) -

(a) the People's Republic of Southern Yemen shall be a designated territory;

(b) in relation thereto the specified nationality shall be Southern Yemeni nationality, and;

(c) in relation thereto the specified date shall be 14th August 1968."

16. The effect of the 1968 Order was that any person who possessed South Yemeni nationality in consequence of his connection with the People's Republic of Southern Yemen on 14 August 1968, and was a CUKC immediately before 14 August 1968, ceased to be a CUKC on 14 August 1968.
17. The question whether a person possessed Southern Yemeni nationality on 14 August 1968 has to be answered by reference to Southern Yemen nationality law. Article 1 of the People's Republic of Southern Yemen 'South Yemen' Law of Nationality 1968 (No 4), which came into force on 4 August 1968, materially provided that:

"The following expressions in this law shall have the following meanings...

(b) 'Republic': the People's Republic of Southern Yemen...

(e) 'Arab': any person belonging to the Arab nation and holding the nationality of any Arab state."

18. Article 2 of Southern Yemen's nationality law provided that:

"The following shall be considered Southern Yemeni by birth...

(b) any Arab born in the Republic, provided that one or both of his parents has resided in the Republic for at least five years."

19. Following the settlement of the judicial review claim in R (Botan) v Secretary of State for Foreign and Commonwealth Affairs CO/1484/2009, the Defendant did not dispute that Somalis born in Southern Yemen were not considered Arab under Articles 1(e) and 2(b) and so did not automatically become Southern Yemenis from 14 August 1968, the date Southern Yemen's nationality law was applied by the 1968 Order. That meant that for the purposes of the 1968 Order, they did not, as a matter of birth, possess Southern Yemeni nationality on 14 August 1968. Therefore, unless they acquired Southern Yemeni nationality some other way, such as by registration on or before 14 August 1968, they did not cease to be CUKCs on 14 August 1968.
20. A CUKC who lacked a right of abode in the UK or equivalent right in a remaining British Dependent territory became a BOC from 1 January 1983 by virtue of s.26 of the British Nationality Act 1981. Accordingly, all Somalis born in Aden on or before 14 August 1968 who had not acquired Southern Yemeni nationality on or before that date became BOCs from 1 January 1983. As they did not meet the requirements of section 11 of the British Nationality Act 1981, they were not eligible to become British citizens.
21. BOCs are entitled to a British passport and to request consular protection from the UK Government when travelling abroad. However, they have no right of abode in the UK. Acquisition of citizenship of another country, in this case Somalia, does not result in the loss of British Overseas citizenship.
22. The Claimant claims to be a BOC by operation of law and applies for a declaration to that effect. The Defendant has no discretion to refuse a passport to a person who has the legal right to BOC status. The question whether each Claimant is a BOC is a question of precedent fact for the court to determine on the basis of the evidence before it. The analysis by Keene LJ in R (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 in respect of British citizens under section 11 of the British Nationality Act 1981 is also applicable to these claims:

"31. What is striking about the present case is that, if the appellant could establish the facts as he alleges them to be, he would have a legal right to be a British citizen. The statutory provisions to which I have earlier referred confer on such a person the status of a British citizen automatically. There is no discretion vested in the Secretary of State. One notes a sharp contrast between those provisions, especially section 11(1) of the 1981 Act, and others in the same Act dealing with applications for naturalisation and registration as a British citizen, such as section 6(1) and section 6(2). In both the latter cases the statute requires the Secretary of State "to be satisfied" of certain matters before he may "if he thinks fit" grant a certificate of naturalisation. In those circumstances, the Secretary of State is in the position of making a decision or a determination. Yet the legislation confers no jurisdiction on the Secretary of State to determine in any authoritative way whether a person is a British citizen by virtue of section 11(1). He is simply not empowered to decide that issue. Nor is there any mechanism or process laid down by statute or regulation whereby he decides whether a person is entitled as of legal right to British citizenship under the 1981 Act. That is perhaps not surprising, because one is here dealing with whether or not that person has a legal right. The contrast is with such processes as registration or naturalisation, where the Secretary of State is empowered by section 41(1)(b) to make provision by means of regulations.

…..

33. Of course, the Secretary of State is very much involved in related matters, such as the issue of passports; and for that reason, as well as for obvious practical ones, it is sensible for any person asserting that he is entitled to the status of a British citizen to raise the matter first with the Home Office. But even on a passport application, the issue of whether a person is a British citizen is a matter of precedent fact where the courts, if there is a dispute, would be prepared to make a decision on the merits.

34. If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship… In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it."

23. It is clear from Harrison that the court does not consider whether, applying public law principles, the Defendant was entitled to find that the Claimant had not proved that they were the holders of their claimed identity, but instead considers for itself whether the Claimant has established the claimed identity.
24. The burden of proof rests upon the Claimant to establish that he is a BOC, applying the civil standard of the balance of probabilities: see R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin) per Walker J. at [11]. That is the burden and standard of proof which I have applied in making my findings of fact and reaching my conclusions.

The Defendant's guidance

25. In 2013^[1], the Defendant issued Guidance to civil servants making a decision on an application by a BOC based on birth in Aden. It provided, inter alia:

"Detailed Guidance – Evidence

5.9 When considering an application for a BOC passport from an applicant with connection to Yemen, examiners need to assess whether the applicant became Yemeni on the basis of his own and his parent's place of birth. If the applicant is of Somali or South Asian descent, examiners should not now assume that the person became Yemeni automatically on independence. However, they should expect to see contemporaneous (documentary) evidence of the parent's birth in Somalia – normally the birth certificate or passport. Examiners should also request to see evidence of the parents' marriage. In general, the following should be requested when considering BOC applications with connection to South Yemen (colony of Aden):

An original birth certificate indicating that the applicant was born in Yemen, preferably with the contemporaneous official translation;

A passport for the father, if the applicant's birth certificate does not state his place of birth. If the applicant's father is born in Yemen, we need proof that they did not become Yemeni on independence, such as naturalisation certificate or a Somali passport issued after independence.

A range of identity documents for the applicant from different years (preferably different decades) to demonstrate that they are the person that the birth certificate relates to.

5.10 In addition to the documents, examiners should look for consistency of name, date and place of birth in the documents provided. Examiners should also look for a range of photographic identity documents from different times that would give added confident about the identity of the person applying for the passport."

26. In my view, it is clear that the Guidance provides examiners with suggested tools and techniques to assist them in reaching a conclusion on the question they have to determine, namely, the identity, nationality, date and place of birth of the applicant. It is not a tick-box exercise. The examiner has to evaluate the evidence and exercise his judgment in each individual case. Thus, it is possible that an examiner may be satisfied as to an applicant's claimed identity etc. even if not all the documents listed in the Guidance are available or even if the details shown in those documents are not entirely consistent.
27. I consider that my analysis is supported by the judgment of the High Court in Bondada, which concerned an application for British citizenship. The Court accepted Mr Berry's submission, which was not disputed by counsel for the Secretary of State for the Home Department, that there were no mandatory requirements as to the evidence that can be relied upon in support of a claim to British citizenship (per Walker J. at [74]).

The Defendant's decision

28. The Defendant's letter of 28 September 2016 gave the following reasons for his decision:

"To satisfy identity we need to be able to assess how your client is seeking to prove that she [sic] is the holder of the claimed identity. This would normally be via contemporaneous documentary evidence confirming a person's name, place and date of birth, their parent's names, place and dates of birth and we also need to be satisfied with the relationship as claimed to the stated parents.

Your client has provided various documents to support his application however he has failed to provide the following:

His original Yemen full birth certificate

His father's full birth certificate

His mother's full birth certificate

His parents' marriage certificate

His father's passport held at the time of conception

His mother's passport held at the time of conception and at the point of entry into Aden from Somalia

…

To satisfy nationality we need to be able to assess how your client is seeking to prove that he is a British Overseas Citizen. Under the British Nationality acts this would normally be via a person's place and date of birth, their parent's place and dates of birth and we also need to be satisfied with the relationship as claimed to the stated parents.

Your client submitted 4 Somali passports for consideration however his identity is not consistent across these documents:

Somail [sic] passport no. 27008/3 shows Abdi Omer TAHER born 27/09/1947

Somali passport no. 348633 shows Abdi Omer TAHER born 27/09/1949, year of birth has been amended with an official stamp

Somali passport no. A0005282 shows Abdi Omar TAHER born 27/09/1949 with unofficial amendments to the second forename and the year of birth

Somali passport A0941088 shows Abdi Omer TAHER born 27/09/1949 with an unofficial amendment to the second forename

In addition, your client's parents in these documents are not consistent as father is shown as Omer TAHER and Omar TAHIR and mother is shown as Fatimo Osman EGEH and Fatima OSMAN.

Your client has submitted a death certificate in respect of his mother, this document shows a different name again as mother is noted as Fadumo Osman IGE.

I note in your letter dated 08/07/2013 you confirm your client changed his date of birth for employment purposes and this is backed up by a statement your client made on 04/07/2013. However, without sight of your client's original birth certificate this cannot be considered for passport purposes. It is also noted that your client continues to use the date of birth 27/09/1949 as all of your client's current identity documents show this date.

In view of the above I am not satisfied with your client's identity, his parent's identity nor has your client provided HMPO with any identity documents in relation to his parents to support the relationship as claimed.

Finally, as your client was born in Aden in 1947, confirming at HMPO interview on 7^th June 2015 he resided there until he was 37 years old, was educated, employed, married, raised a family in Yemen and speaks Arabic it would appear that your client became a citizen of Yemen as an assimilated Arab and therefore lost his entitlement to British Nationality.

In light of your client's failure to provide the documentation as I have listed, the discrepancies across his/his parents identities and no evidence to prove he did not become a Yemen citizen his application has been refused."

Evidence and findings

29. I heard oral evidence from the Claimant by video link from the United Arab Emirates ("UAE"), with the assistance of an interpreter in Arabic. A substantial amount of documentary evidence was also adduced.
30. In summary, the Claimant's evidence was that he was born in the Colony of Aden on 20 September 1947 to parents who were of Somali origin and nationality, and residing in Aden. He did not acquire South Yemeni nationality on or before 1 August 1968. He has a Somali passport. In 1974, he emigrated to the UAE where he has lived ever since.

Expert evidence

31. At the hearing, the Claimant adduced expert evidence on Somali culture which addressed the variations commonly found in the spelling of names.
32. Dr Martin Orwin, Senior Lecturer in Somali and Amharic, at the School of Oriental and African Studies, provided a report on the writing and spelling of Somali names. The Latin alphabet was introduced as the official writing system for Somali in 1972; prior to that different writing systems were used. He explained that the Somali language has no standard form. It comprises a set of dialects, and there are variations in the ways in which words are spoken and written. In addition, grammatical and spelling errors are commonplace in written Somali. Dr Orwin observed that the "fact that such spelling errors are common means that at times the spelling of names reflects these, and I have seen people use incorrect spelling consistently and inconsistently for their name". He said, at [30]:

"Whereas in English it is customary to stick to one spelling of a name, in Somali this is not necessarily the case. My own name, Martin, is spelt by some people with a 'y': Martyn. Given consistency of spelling in the UK I would never write my name with a 'y' and for official purposes such consistency is well established…. This is not to say they are not the same name though. When spoken, there is no difference in pronunciation and the etymology of the name, whether written with 'i' or 'y' is the same. They are two ways of spelling the same name. Consistency of spelling is not something which has permeated Somali writing and written culture generally. The added complications of Anglicizing Somali-written names, the Romanization of Arabic names, Romanising the spelling of the name in an Arabic-speaking country, etc. can all lead to inconsistent spelling of Anglicizations."

33. Thus, the problem of inconsistent spelling is exacerbated when Somali or Arabic names are spelt in an English-speaking context, because of the representation, or lack of representation, of sounds found in Somali and/or Arabic, but not in English. Dr Orwin gave the example of the spelling of the Arabic name Muhammad which is spelt in a number of different ways in English e.g. Muhamad, Muhammad, Mohamad, Mohammad, Mohamed, Mohammed, Mahamad, Mahamed etc. He explained that these are not different names, but simply different anglicised spellings of the same name.
34. Moreover, Somali is not an Arabic language and since 1972 it has been written in the Latin alphabet, not in Arabic script. So, when Somali names are written in Arabic, in the Republic of Yemen and in the UAE, different spellings may be given for them.
35. This report was supported by a document from the CJK Dictionary Institute on the various ways in which Arabic names may be romanised (ARAN document) and a note from John Wedderburn on Arabic transliteration. Romanisation is the process of converting a different writing system, such as Arabic, into the Latin alphabet. Transliteration is the representation of one writing system into a different writing system, sign by sign. Transcription refers to the representation of the sounds of language in a recognized writing system.
36. Dr Markus Hoehne, University of Leipzig, who is an anthropologist with expertise in Somali culture, also provided a report. Dr Hoehne explained that there are no family names in Somali culture. Names are constructed in the following order: a person's first name, father's first name, grandfather's first name. When European authorities register Somali names, they tend to adopt the last name as the family name or surname of the person, in an attempt to adjust them to a European taxonomy of naming. As Dr Hoehne explained, from a Somali perspective, this does not make sense, and gives rise to confusion.
37. Dr Hoehne also described the wide use of nicknames in Somali culture and the practice of parents calling a child by different names.
38. The Defendant, when refusing the Claimant's passport, doubted the Claimant's identity because of inconsistencies/variations in the spelling of his name "Omer" (his father's name) which in some passports was spelt with an "e" and in others with an "a". The Defendant also referred to inconsistencies in the spelling of his parents' names in his passports. His father's name is recorded as Omer Taher and then Omar Tahir. His mother's name is recorded as Fatima Osman Egeh and Fatima Osman. However, on her death certificate her name is recorded as Fadumo Osman Ige.
39. In my judgment, these variations in spelling are likely to have occurred in part because the names were being translated into different languages, and in part because consistent spelling is not a feature of Somali culture and different spellings of the same name are commonplace. In my judgment, these inconsistencies in names did not, taken alone, call into question the Claimant's identity.
40. There were significant discrepancies in the Claimant's date of birth in the documents. Dr Hoehne's evidence concerning the lack of importance of dates of birth and birthdays in Somali culture was relevant. He said:

"The lack of importance of birthdays and dates of birth to most Somalis.

7. Dates of birth are usually not registered in Somali culture. Before the advent of colonialism and also during the colonial period, Somalis, most of whom reside in the countryside, were born "under the tree". There was no citizen registry covering the population. This only gradually changed in the postcolonial period. Most Somalis were still born without official registration. But when they applied for a passport, a birth date was fixed in the document. However, this date represented an approximation of a person's age. Unusually, the 1 of January was taken as date and month; the year indicated roughly the age of the person. Somalis normally would reckon birth dates according to certain specific phenomena that occurred around their birth. Older people I interviewed myself in northern Somalia for instanced mentioned that they were born around 'the time of the measles' or around the time of a certain drought. Through oral history research, one could find out when, approximately, this would have been. Or people would say 'I was born in the year when Somalia became independent' (i.e., 1960).

8. More recently, since the 1980s, many people would at least know the year in which they were born. One reason was that many Somalis had moved to urban settlements in the post-colonial period, received formal education and began to note down important events in books. Therefore, educated parents would note the year in which a child was born. But confusion about this matter has again increased with the outbreak of civil war in the late 1980s. Private property was destroyed, books and files were lost. Families were dispersed, and often the father or the mother was killed, died of a disease or fled and the children were left on their own or with relatives. During my research in northern Somalia from 2002 onward, I met many young Somalis who had only a vague idea about the year in which they were born. A year or two difference were considered normal (e.g.: 'I was born 1982 or 1983…).

9. Birthdays play, according to my insights, no important role in Somali society up until today. Birthdays are not celebrated. And if officials need to register a person with a concrete birthday, a date is given by many people which often is but a rough estimation (as outlined above). Of course, if a person knows his/her exact birthday since the parents had noted it and the notes were preserved, this correct date is given. Beyond that, birthdays play no role in Somali society."

The Claimant's birth certificate

41. The Claimant produced a birth certificate from the Republic of Yemen, Ministry of Interior, Department of Civil Status and Civil Registry, written in Arabic. It was accompanied by a certified English translation. The certificate was issued on 23.12.2012. It records the birth of Abdi Omar Taher. The date of birth is given in the Gregorian calendar as 27 September 1947 and the same date in the Hijri calendar. The place of birth is given as Al-Tawahi, which is in Aden. It records his gender as male. It records his father's name as Omar Taher, his religion as Islam, his nationality as Somali, and his profession as "employee". It records his mother's name as Fatima Osman Egeh, her religion is recorded as Islam, her nationality as Somali, and her profession as housewife. It records her place of residence being Aden.
42. According to the certificate, these details were extracted from "birth registry No. 1, Entry 1150 on 8.10.1947". The Claimant said that it had been drawn up from the Colony of Aden Birth Register, although he had no first-hand knowledge of how the certificate was produced, as it was obtained for him by a colleague. However, I am aware from evidence which I accepted in the Nooh litigation that the Colony of Aden Birth Register has been maintained by the registration authorities in the Republic of Yemen, and duplicate Republic of Yemen birth certificates record the birth details (with some minor differences of wording) which is found in the Colony of Aden Birth Register, including the registration number.
43. According to the Claimant's evidence, the stamps on the birth certificate show that the certificate was authenticated in the following ways. First the Yemen Department of Civil Registration authenticated it. The Ministry of Foreign Affairs in Aden then authenticated the certificate as an official document issued within Yemen. The Yemeni Embassy in Dubai stamped it as evidence that it was accepted as a genuine document issued in Yemen and the Ministry of Foreign Affairs in Dubai stamped it to make it official for use in the UAE.
44. However, on examining the document, I am unable to judge whether or not it is a genuine birth certificate, authenticated in the manner described by the Claimant, because I am unable to read Arabic and I am unfamiliar with the form and content of Republic of Yemen birth certificates. It would require expert evidence for a UK court to determine whether this is an authentic birth certificate or a forgery. In the absence of a Colony of Aden birth certificate, I am also unable to form a judgment as to whether the details in the Republic of Yemen birth certificate correspond to those in the Colony of Aden Birth Register for 1947.
45. In the Nooh litigation, I was able to examine Colony of Aden birth certificates which were written in English and were more or less identical to British birth certificates of that era. I was able to form a judgment that they were authentic, and that the Republic of Yemen birth certificate was based upon the details in the Colony of Aden Birth Register for the relevant dates. That exercise is not possible in this case, as the Claimant does not have a Colony of Aden birth certificate.
46. The Claimant's evidence was that he had an original Colony of Aden birth certificate which he accidentally lost in a house move in 1984. He stored important personal documents in a bag in his bedroom, and his wife disposed of the bag, not realising its importance.
47. The Claimant said he obtained the Republic of Yemen birth certificate in 2012, so that he could apply for a BOC passport. He did not wish to travel to Yemen, because he thought it was unsafe there, so he contacted a former colleague, Mr Abdul Rahmen Ali Hassan, who was living in Yemen and asked him to apply on his behalf. The Claimant gave Mr Hassan his full name, date of birth, and his parents' names, but no documents in support. Mr Hassan told him that he went to the Department of Civil Status and Civil Registry, applied for the birth certificate, paid a fee, and the certificate was issued on 23 December 2012. Mr Hassan arranged for it to be delivered to the Claimant in the UAE by a friend who was travelling from Yemen to the UAE.
48. I accept it is quite possible that the Claimant lost his original birth certificate in a house move, in 1984. But I do find it very odd that he made no attempt to obtain a duplicate until he decided to apply for a BOC passport in 2012. This made me wonder whether he was telling the truth about having a genuine Colony of Aden birth certificate and whether he merely tried to obtain a false birth certificate in 2012 to bolster his application for a BOC passport.
49. I share the Defendant's concern about the lack of any evidence from Mr Hassan, and the apparently casual manner in which he was able to obtain a duplicate birth certificate for someone else.
50. I also find it very surprising that the Claimant was unable to obtain a scanned copy of his original Colony of Aden birth certificate, in addition to his Republic of Yemen birth certificate. In another case which I have just decided (R (on the application of Suleiman) v Secretary of State for the Home Department CO/3162/2016), the Claimant also used the services of Mr Abdul Rahmen Ali Hassan (presumably the same person) to obtain a duplicate birth certificate from the Department of Civil Status and Civil Registry in Yemen. Mr Hassan obtained a scanned copy of the original Colony of Aden birth certificate, in addition to a Republic of Yemen birth certificate. The Claimant's brother also had a scanned copy of his Colony of Aden birth certificate, obtained as a duplicate because he had lost the original.
51. In Suleiman I accepted that it would be unrealistic to expect the Republic of Yemen to reproduce duplicate birth certificates in the British format and language. Therefore I found that a scanned copy of the Colony of Aden birth certificate, accompanied by the Republic of Yemen birth certificate based upon the Colony of Aden Birth Register, was sufficient, provided they were authentic documents. Unfortunately the Claimant in this case does not even have a scanned copy of his Colony of Aden birth certificate.

The Claimant's passports and other evidence

52. The Claimant produced his Somali passport number 27008/3 which was issued on 19 July 1970 and was valid until 18^th July 1973. It records his name as Abdi Omer Taher. It records his father's name as Omer Taher and his mother's name as Fatima Osman Egeh. It records his place of birth as Aden, and his date of birth as 27 September 1947.
53. The Claimant also produced his Somali passport number 348633, which was issued on 10 August 1986 and was valid until 9 August 1989. It was issued by the Embassy of the Somali Republic in Abu Dhabi. It gives his name as Abdi Omar Taher. It records his father's name as Omar Taher and his mother's name as Fatimo Osman Egeh. His place of birth is recorded as Aden. His date of birth is recorded as 27 September 1949 and there appears to be a button seal amendment to that date. The Claimant stated that he applied to amend the year of his birth from 1947 to 1949 at the time he applied for his subsequent passport number A0005282, i.e. in 1990.
54. The Claimant produced Somali passport number A0005282 which was issued by the Somali Embassy in Abu Dhabi on 14 May 1990 and was valid until 13 May 1993. It records his name as Abdi Omar Taher. It records his father's name as Omar Tahir. It records his mother's name as Fatima Osman. It records that the Claimant was born in Aden. It gives his date of birth as 27 September 1949.
55. The Claimant produced Somali passport number A0941088 which was issued by the Somali Embassy in Abu Dhabi on 17 December 1998 and was valid until 26 December 2001. It records his name as Abdi Omar Taher. It records his date and place of birth as 27 September 1949 in Aden. It records his father's name as Omar Taher. It records his mother's name as Fatima Osman.
56. The Claimant produced Somali passport number P0019667 which was issued on 1 March 2009 and was valid until 1 March 2012. It gives his date and place of birth as 27 September 1949 in Aden. It records his name as Abdi Omar Taher. It gives his mother's name as Fatima Osman Egeh.
57. The Claimant produced Somali passport number P00164029 which was issued on 13 March 2012 and was valid until 13 March 2017. It records his date and place of birth as 27 September 1949 in Aden. It records his name as Abdi Omar Taher and his mother's name as Fatima Osman Egeh.
58. When the Claimant applied for his BOC passport, in February 2013, three out of the four passports which he submitted showed his date of birth as 1949. In response to queries from the Defendant, the Claimant made a statement, dated 4 July 2013, which he submitted to the Defendant. He explained the change in his date of birth from 1947 to 1949 as follows:

"4. In 1990, when the Somali Embassy started issuing green passports, I decided to change my date of birth and make myself two years younger. My reason for changing my date of birth was for work purposes. I was a clerk at that time and I was told that my chance of promotion to a customs officer would be better if I was a little younger.

5. When I went to the Somali Embassy to change the year of birth, they told me that I needed to change the passport (348633) to match the date I wanted in the newer green one."

59. The Claimant gave a fuller account of this in his first witness statement, dated 16 June 2018. Despite making the change in 1990, he was not promoted until 1997, which in my view made the Claimant's explanation rather implausible.
60. In a supplementary witness statement, made on 23 July 2018, he raised for the first time a further explanation for changing his date of birth. He said, at paragraph 33:

"…It is not common for Somali persons, who are living in the United Arab Emirates, or even indeed elsewhere in the Gulf, to have to give a date of birth which allows them to retire at a later point. The reason for this is that there is no pension scheme for expats in the UAE. After retirement, an expat either has to leave the UAE or be sponsored by another relative. We have no means of support after retirement apart from our end of service benefit, which is a lump sum based on the number of years a person has worked and his/her final salary. This means that for an expat from an unstable country, such as Somalia and Yemen, it is preferable to try to work for as long as possible…"

61. I was dubious as to whether deferral of retirement was the explanation for him changing his date of birth. In his evidence he stated that he retired in 2007, when he reached the age of 60, as his employers still had his true birth date (1947) on their files. Therefore, changing the date of birth in his passport made no difference, and he must have known that at the time. I consider it is highly significant that his initial statement to the Defendant and his first witness statement only referred to obtaining a promotion as the reason for the change. The additional motive of deferring his retirement was a very late addition, just before the hearing. I am concerned that it may have been added because it was referred to in my judgment in the Nooh litigation as an explanation for changes to dates of birth made by some of the Nooh claimants.
62. The Claimant produced a copy of his current Somali passport number P0581352 which was issued on 9 September 2016 and is valid until 8 November 2021. It records his date and place of birth as 27 September 1947 in Yemen. It records his name as Abdi Omar Taher. It records his mother's name as Fatima Osman Egeh.
63. In order to obtain a passport with the date of birth recorded as 1947, the Claimant went to the Somali Consulate in Dubai and showed them copies of his Republic of Yemen birth certificate and his first passport. He also made a sworn declaration that he was Abdi Omar Taher, born on 27 September 1947.
64. The Claimant produced his UAE driving licence, issued on 10 August 1981 which recorded his date of birth as 27 September 1949. He produced an identity card for the Abu Dhabi Marine Areas Ltd, in which his first name appears to have been spelt differently. He also produced an "Appreciation Certificate" from the Abu Dhabi Customs Department dated 25 August 1991, to prove his employment with them.
65. The Claimant produced documentary evidence which showed that he had lived in Aden, prior to moving to the UAE in 1974. There were documents from the Yemen Central Planning Commission Central Statistical Office which showed that Abdi Omar Taher was employed there from 1 November 1970 to 3 November 1974.
66. He also produced a certificate in book-keeping and a certificate in arithmetic issued in the name of Abdi O. Taher by the Royal Society for Encouragement of Art, Manufactures and Commerce, London in 1969, and a certificate of attendance at the Aden Technical Institute certificate from 1967 to 1968, in the name of Abdi Omer Taher.
67. On the basis of this evidence, I was satisfied that the person called Abdi Omer Taher had studied and worked in Aden and subsequently moved to the UAE where he was employed.

The Claimant's parents

68. The Claimant's evidence was that his father was born in Aden in around 1930 and his mother was born in British Somaliland in around 1931. He admitted that these were only approximate dates as there were no records. He said that, to the best of his knowledge, all four of his grandparents were born in Burao, British Somaliland and they were all of Somali ethnicity.
69. The Claimant was not able to produce any identity documents for his parents, such as passports or birth and marriage certificates, which were needed to support his claim that they were Somalis living in Aden at the date of his birth. He produced his mother's death certificate, but that did not provide the information required. His explanation for the lack of any evidence relating to his father was that he was living abroad in the Netherlands when he died in a car accident in 1994. He had re-married, and his personal documents were in the custody of his widow, and he did not know what happened to them.
70. The Claimant produced evidence which he said related to his father's employment in Aden in the years after his birth. There was a certificate of service at the BP (Aden) Limited Refinery which stated that Omer Taher Liban worked at the refinery from 5 October 1954 to 9 November 1974. This might or might not be the same person as the Omer Taher referred to in the Claimant's passport – there is no evidence as to whether Liban was his name and it is not referred to elsewhere. There were also letters of reference from the Eastern Bechtel Corps in respect of Omar Taher's work on Das Island between 1974 and 1976.

The Claimant's siblings

71. The Claimant was the only child of his parents' marriage. His parents divorced and they both re-married. He has eight half-brothers and a half-sister from his father's re-marriages. He has two half-brothers from his mother's re-marriage.
72. On his father's side of the family, his half-brother Ali was issued with a BOC passport on 28 November 2012. I saw a copy of his Colony of Aden birth certificate, giving a date of birth in December 1963. His father was recorded as Haj Omer Taher, Somali, Mohammadan. This could be the Claimant's father. As Dr Hoehne's report explained, the honourable title "Haj" is used to acknowledge that a person has complied with the Islamic obligation to do the holy pilgrimage to Mecca. However, he does not use the title Haj in the other documents the Claimant relies upon.
73. Another brother, Mahmoud Omar Taher, has applied for a BOC passport but has not yet had a reply.
74. On his mother's side of the family, his half-brother Abdullahi Ismail Hassan applied for a BOC passport but the application was refused on 7 August 2015 as the Defendant did not accept his identity.
75. He produced a charming family photo, which he said was taken in Aden in about 1971, of his father surrounded by his children. The Claimant is the oldest, and has the appearance of a man in his twenties. His brother Ali has the appearance of a young child. This was consistent with his account.
76. As the Claimant is an only child, I find the evidence relating to his siblings to be of limited value.

Conclusions

77. Mr Singh QC rightly did not seek to rely upon the Defendant's final reason for refusal of a BOC passport, namely, that the Claimant had become an "assimilated Arab" because of the length of time he had lived in Aden/Yemen. That is not the correct legal test.
78. The Defendant rightly submits that the Claimant's credibility and honesty is called into question by his conduct, namely, inserting a false date into his passport, and relying on a passport with false particulars when travelling. This deception continued for many years, and was only corrected when the Claimant believed it would be beneficial to do so, in order to obtain a BOC passport.
79. In considering how I should treat his admitted dishonesty when assessing his claim to this Court, I was guided by the judgment of the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49, per Sir John Dyson SCJ, at [32] – [33]:

"32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant's dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…"

33. Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA's appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant's lies."

80. I am alive to the risk that because the Claimant falsified his date of birth, in order to gain an employment advantage, he may be willing to lie to the Defendant and to this Court to obtain the benefit of a BOC passport.
81. From the expert and factual evidence in this case, and in the Nooh litigation, it does appear that Somalis do sometimes give a false birth date in order to gain some real or perceived advantage, and they appear to take a casual and pragmatic attitude towards this practice, rather as if an individual's birth date is not of any particular consequence. I suspect that this attitude probably stems from the lack of importance of birth dates in Somali culture and society, as documented by Dr Hoehne.
82. But even taking the cultural differences into account, the Claimant's account as to how he came to change his birth date from 1947 to 1949 is implausible and inconsistent, for the reasons I have already explained. Mr Berry is correct to say that the Claimant could be eligible for a BOC passport, whether his date of birth was 1947 or 1949. However, this aspect of the evidence is very damaging to the Claimant's credibility.
83. For the reasons I have explained, I am not able to satisfy myself that his Republic of Yemen birth certificate is authentic and that it accurately reflects the records in the Birth Register from 1947. He has neither an original Colony of Aden birth certificate, nor a scanned copy. He claims to have lost the original birth certificate many years ago. That may be so, but I find it suspicious that he never tried to replace it until he wanted to apply for a BOC passport.
84. His Somali passports are evidence of his identity, his place of birth in Aden, his Somali nationality and of his parentage. However, I do not consider that Somali passports are necessarily accurate or reliable, because the evidence in this case, and in the Nooh litigation, is that Consular departments in the Somali Embassy in the UAE are willing to issue passports and change details in passports without carrying out the verification checks which are typically carried out by European countries, and are even willing to produce passports containing details which the Consular officials know to be false.
85. The Claimant has not been able to produce official records of his parents' identity, place and date of birth, Somali heritage or residence in Aden. The records of his father's work in Aden post-date his date of birth.
86. The BOC passport provided to his much younger half-brother, Ali, is of limited evidential value. His half-brother on his mother's side of the family has had his application for a BOC passport refused.
87. The Claimant is not a credible witness, and so I am unable to rely upon his oral evidence unless it is supported by documentary evidence. The Claimant has not been able to produce sufficient documentary evidence to establish his claim that he is a person of Somali heritage who was born in Aden prior to 14 August 1968 who did not acquire South Yemeni nationality on or before that date.
88. For these reasons, the claim is dismissed.

Note 1   The 2013 Guidance has now been replaced by revised Guidance issued in April 2018.    [Back]