No right of abode for CUKCs from Penang

By Asad Ali Khan, BA, MSc, MA, LL.B (Hons) & LL.M on January 1, 2023

Murugason v Secretary of State for the Home Department [2022] EWHC 3160 (Admin) (14 December 2022)

Philip Mott KC has held that in section 2(1)(b)(i) of the Immigration Act 1971 a person who was a Citizen of the UK and Colonies (CUKC) by descent was only granted a right of abode in the UK if their parent had obtained that citizenship by either birth, adoption, naturalisation or registration in the United Kingdom, and the words “in the United Kingdom” apply to all four methods of obtaining citizenship. The court was of the view that the claimant Mr Indran Murugason’s father, who had become a CUKC by being born in Penang in 1948, before it became part of Malaysia, therefore did not come within section 2(1)(b)(i), so Mr Murugason did not have a right of abode and had not become a British citizen under section 11 of the British Nationality Act 1981. Mr Murugason had applied for judicial review of the defendant SSHD’s decision that he had no right of abode in the UK under section 2(1) of the 1971 Act as originally enacted. Mr Murugason’s father had been born in Penang in 1948; he was deemed to be a natural-born British subject under section 1 of the British Nationality and Status of Aliens Act 1918. The British Nationality Act 1948 came into force in 1949, and under section 12(1)(a) Mr Murugason’s father automatically became a CUKC. Later in 1957, Malaysia became an independent state, and his father, who was still in Penang, was allowed to retain his CUKC status despite independence.

Mr Murugason was born in 1972 in Penang, under section 5(1) of the 1948 Act he became a CUKC by descent through his father’s status. The 1971 Act came into force and divided British subjects into patrials and others; patrials had the right of abode, while others, even if CUKCs, did not. Section 2(1)(b)(i) of the 1971 Act provided that a person had a right of abode in the UK if he was a CUKC born to or adopted by a CUKC parent who had that citizenship at the time by his birth, adoption, naturalisation or … registration in the United Kingdom. Under section 11 of the 1981 Act those who had been CUKCs and had the right of abode became British citizens, so the question whether he had become a British citizen depended on whether section 2(1)(b)(i) of the 1971 Act had given him the right of abode. Mr Murugason’s submissions concentrated on section 2(1)(b)(i). It was argued that he had a right of abode because (i) he was a CUKC who was (ii) born to a parent who had that citizenship at the time of the birth and (iii) the parent had that citizenship by his birth. Refusing judicial review, Philip Mott KC examined the language of the provision and the wider context of the 1971 Act which was to impose the same restrictions on all CUKCs, requiring a direct UK connection through birth, adoption, naturalisation or registration. The special arrangement provided for in the 1971 Act had been to extend CUKC status to those born after independence, but not to provide them all with a right of abode.

The 1971 Act came into force on 1 January 1973 and patrials enjoyed the right of abode, which allowed them “to live in, and to come and go into and from, the United Kingdom without let or hindrance”. Other persons—even if CUKCs—did not have that right, and could only “live, work and settle in the United Kingdom by permission” and the change was in immigration status, not citizenship or nationality. The two became separate.

Statutory language

Philip Mott KC followed the recent judgment in Project for the Registration of Children as British Subjects & O v SSHD [2022] UKSC 3 (see here) and said that statutory context was the primary aid to interpreting statutes and therefore external aids to interpretation therefore must play a secondary role.

As to the language of the subsection, the court said that the linguistic analysis of s.2(1)(b)(i) suggested that if Parliament had intended that the qualifying words should apply only to “registration”, it would have included an additional comma after “naturalisation”, so that it read “by his birth, adoption, naturalisation, or registration in the United Kingdom”. It would have been even clearer if it had read “birth, adoption or naturalisation, or by his registration in the United Kingdom”.

The fact that a provision could have been expressed more clearly did not show that it bore the opposite of its natural meaning, if that meaning was sufficiently clear. Philip Mott KC held that:

17. Conversely, Mr Malik submits that, if Parliament had wanted the qualifying words to attach to all the possible ways of acquiring CUKC status, they should have appeared immediately after the words “that citizenship”. But then the provision would read as follows:

“(i) then had that citizenship in the United Kingdom or in any of the Islands by his birth, adoption, naturalisation or (except as mentioned below) registration”

That would be a nonsense. Whether the words are intended to qualify all four ways of acquiring CUKC status, or just registration, it is clear that they must apply to the route to acquiring citizenship, not to the citizenship itself. I accept that Mr Malik’s submission would make sense with the addition of further words, as follows:

“(i) had acquired that citizenship in the United Kingdom or in any of the Islands by his birth, adoption, naturalisation or (except as mentioned below) registration”

18. The fact that a statutory provision could have been more clearly expressed does not show that it bears the opposite of its natural meaning, if that meaning is sufficiently clear. In my judgment, the language of section 2(1)(b)(i) taken in isolation points clearly towards the qualifying words “in the United Kingdom or in any of the Islands” being intended to apply to all four of the options “birth, adoption, naturalisation or … registration”.

Next, the court considered the wider context of the 1971 Act.

Wider context

Philip Mott KC said that other provisions contained in the 1971 Act pointed towards the construction that the qualifying words qualified all four methods and that section 2(1)(d) provided an alternative method for acquiring a right of abode for a Commonwealth citizen by descent, but only where their parent was a CUKC “by his birth in the UK”. There was no reason—stated the court—why that route should be limited to those with a parent born in the UK if the route under section 2(1)(b)(i) was not. Philip Mott KC held that:

20. Section 2(1)(d) … provides an alternative method of acquiring a right of abode to a Commonwealth citizen by descent, but only where the parent was a CUKC “by his birth in the United Kingdom or in any of the islands”. I can see no logical reason why this route should be limited to those whose parent was born in the UK, but the route under section 2(1)(b)(i) should not, which is what Mr Malik’s submission entails.

The court followed Moore-Bick LJ’s—strictly obiter—but nonetheless extremely weighty analysis of the 1971 Act’s provisions in SSHD v Ize-Iyamu [2016] EWCA Civ 118 where his Lordship said that:

6. Section 2(1) of the Act defined those who had the right of abode. The section has since been amended, but for present purposes it is sufficient to note that as originally enacted such persons included (i) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth in the United Kingdom or any of the Islands, (ii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself acquired it by birth in the United Kingdom or any of the Islands and (iii) citizens of the United Kingdom and Colonies born to a parent who had that citizenship at the time of the birth and had himself been born to a parent who “so had it”… [emphasis added]

“… the broad scheme of the legislation was that the right of abode was restricted to those citizens of the United Kingdom and Colonies who had acquired that status in the United Kingdom, or one of whose parents or grandparents had himself acquired that status in the United Kingdom.”

Moore-Bick LJ went on to paraphrase the effect of section 2(1)(b) in that case. With the substitution of the word “father” for “mother” the same analysis would apply to this case and Mr Murugason and so “17. In order for the respondent to have acquired the right of abode under that section, therefore, it would be necessary for his mother at the date of his birth to have acquired the status of a citizen of the United Kingdom and Colonies in the United Kingdom by birth, adoption, naturalisation or registration …” [original emphasis]

Philip Mott KC accepted the submission that this involves a rewriting of the words of the section. It is not what the Act actually says. But in his judgment it is what the Act means. Moore-Bick LJ continued by setting out the context of the provision in the scheme of the 1971 Act: “18 … The whole thrust of section 2 as originally enacted was to limit the right of abode to those who had a direct or indirect link to this country through the acquisition here of the status of a citizen of the United Kingdom and Colonies.” Philip Mott KC said that he accepted this analysis of Moore-Bick LJ had accurately setting out the context of section 2, and the parliamentary purpose which can be deduced from reading the section in that context. If the qualifying words were not limited to registration, then they had to cover all four methods, and the court had previously proceeded on the clear basis that the qualifying words in section 2(1)(a)—which were the same—applied to naturalisation as well as registration, Philip Mott KC applied the old decision of the Divisional Court in R v Immigration Appeal Tribunal, ex parte De Sousa [1977] Imm.A.R. 6 which created a difficulty for Mr Murugason.

As to the historical context of the 1971 Act, the SSHD submitted that Mr Murugason’s suggested interpretation conflicts with the clear and unambiguous purpose of Parliament in enacting section 2(1) of the 1971 Act. That purpose can be deduced from reading the Act as a whole, and was as described by Moore-Bick LJ in the passages from Ize-Iyamu cited above. If the qualifying words in section 2(1)(a) applied only to registration, that would contrary to parliamentary intention open the door to thousands in Malaysia and other countries who became CUKCs by birth before those countries’ independence. The court held that:

30. If the qualifying words only apply to ‘registration’ in section 2(1)(b)(i), as Mr Malik submits, the same must also be true for the identical wording in section 2(1)(a). The Claimant cannot use this route to a right of abode because he was born after the independence of Malaysia. He therefore only became a CUKC by descent, not by birth. But many thousands of residents of Malaysia and of many other countries, who were born before independence and therefore became CUKCs by birth, would be able to claim a right of abode through that paragraph if Mr Malik’s submissions are correct. That construction of section 2(1)(a) would drive a coach and horses through the clear intention of Parliament in the 1971 Act.

Furthermore, the court’s attention was drawn to the words in section 2(3)(c) of the 1971 Act dealing with children born posthumously. However, that seemed to equate the words “British nationality” with the term “British citizen” which appeared only later, in the 1981 Act. The court’s attention was drawn to section 6 of the 1948 Act as providing a reason why Parliament may have chosen to apply stricter requirements to those whose CUKC status came via registration. Section 6 of the 1948 Act provided coverage to citizens of Eire, which became independent in 1922, and of a series of named countries generally comprising semi-autonomous Dominions, together with wives of CUKCs. Such people, it was submitted, might well have a lesser connection with the UK than other CUKCs. Yet Philip Mott KC held that:

32. … But in my judgment it is clear that Parliament wished to impose the same restrictions on all CUKCs, requiring a direct connection with the United Kingdom through birth, adoption, naturalisation or registration here.

Great emphasis was placed on the unique position of Penang after independence and the historical background is set out in AL & Others v SSHD [2009] UKAIT 00026, starting at paragraph [33], and also in Fransman’s British Nationality Law at B.132. In general, residents of newly independent countries lost their CUKC status. This was not a penalty imposed by the UK, but rather a necessary step to ensuring that the newly independent country was truly independent. Divided loyalties and allegiances would tend to conflict with this independence. The arrangements for Penang were unique, albeit a somewhat strange compromise. Why, Mr Murugason asked rhetorically, would the UK Parliament then wish to withdraw that special arrangement by refusing the right of abode to residents of Penang. On that point, Philip Mott KC concluded that:

34. The answer is that the special arrangement involved only the extension of citizenship in the form of CUKC status. That in turn allowed a new generation of children to become CUKCs, even when born long after independence. This Claimant was a beneficiary of that special arrangement. But there was never any special arrangement concerning the right of abode. Prior to the Immigration Act 1971 this additional status requirement did not exist, so that all CUKCs were treated the same. After the 1971 Act came into force there is no reason why the Penang CUKCs should have been treated any differently from all others when distinguishing patrials from non-patrials. As the Tribunal explained in AL at paragraph [37], there was a very large number of residents of Malaysia who were non-patrials, and became British Overseas Citizens [BOCs].

Sadly, the overall conclusion was that Mr Murugason did not have a right of abode in the UK before the 1981 Act came into force, and therefore had not become a British citizen under section 11 of the 1981 Act. Accordingly, his judicial review challenge failed and it was dismissed.

Comment

It appears that the court decided not to open the door to thousands in Malaysia and other countries who became CUKCs by birth before those countries’ independence. Indeed, as Philip Mott KC held in relation to the 1971 Act, it was Parliament’s intention to close the door to many thousands of residents of Malaysia and of many other countries, who were born before independence and therefore became CUKCs by birth, would be able to claim a right of abode through section 2(1)(a) had Mr Murugason’s submissions been on point.