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High Court remedy for woman embroiled in disputed citizenship claim
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High Court remedy for woman embroiled in disputed citizenship claim

Before she travelled to the land of her fathers, Yasmeen Din was born to Pakistani parents in the Churchill Hospital in Oxford on 26 June 1968.

By virtue of section 11(1) of the British Nationality Act 1981, read with section 4 of the British Nationality Act 1948 and section 2(1)(a) of the Immigration Act 1971, Yasmeen was a British citizen.

However, her application for recognition as a British citizen was refused.

The Secretary of State agreed that her name was Yasmeen, but little else besides, relying on the claimant’s own declarations during a visa application to the UK that her name was in fact Yasmeen Sultana, born 4 January 1968, in Sahiwal, Pakistan.

Almost 50 years after the disputed event, the High Court heard argument on the issue of Yasmeen’s citizenship in R (Din) v Secretary of State for the Home Department [2018] EWHC 1046 (Admin).

A Harrison judicial review

In judicial review cases the court plays a supervisory role: it will check whether the public body decision-maker has made a particular decision lawfully. It will not re-make the decision based on the merits, or what it thinks the decision ought to have been.

But as established in Harrison v SSHD [2003] EWCA Civ 432, where a legal right to citizenship is concerned, a person can bring proceedings in the High Court for a declaration that he or she is so entitled.

In determining that matter the court will itself resolve any issues of fact as well as any issues of law. As stated by Lord Justice Keene, giving judgment in Harrison (paragraph 34):

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.

The decision by Michael Fordham QC, sitting as a deputy High Court judge, therefore reads more like a First-tier Tribunal determination, with evaluation of the written and oral evidence before the court, assessment of the competing arguments of the two parties, and reasons for the conclusions reached.

Din or Sultana?

The High Court does not issue spoiler alerts, but the way that the case was reported should give some indication as to its decision.

The key issue was whether Yasmeen was born in the UK in 1968. The main bone of contention for the Secretary of State was the fact that Pakistani documents had been issued to the claimant in what turns out to have been the wrong name, with an incorrect date of birth (January 1968), and incorrect place of birth.

One saving grace was that the same documents recorded the parents correctly. The Secretary of State accepted that Yasmeen’s mother, Razia, was in the UK in 1968 and gave birth to someone called Yasmin Din in June 1968, six months after the date of birth recorded on the Pakistani document.

As well as doing the maths, Fordham J was persuaded by DNA evidence, and heard from a family friend and ex-magistrate of the Oxford bar who grew up with the claimant and was able to identify her. Ultimately he “f[ound] as a fact that the claimant is, as she claims, the Yasmeen Din recorded as born in Oxford on 26 June 1968”.

A powerful remedy

The case is an illustration of the difficulties many individuals face documenting what has happened in their lives to the satisfaction of the immigration authorities.

The issues faced by Yasmeen Din in attempting to make out her claim will be familiar to anyone currently caught up in the Windrush scandal.

But the case is also a useful example of a powerful remedy for individuals whose right to automatic citizenship has been disputed by the state, where evidence is properly and fully evaluated by an impartial court.

 

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