Secretary of State for the Home Department v Ize-Iyamu

Factual and Procedural Background

This appeal concerns the legal framework governing the acquisition of the right of abode in the United Kingdom, which allows unrestricted residence and entry without formal leave. The Respondent was born abroad to parents who were originally citizens of the United Kingdom and Colonies but whose statuses changed following Nigeria's independence in 1960. The Respondent applied for a Certificate of Entitlement to the right of abode, which was refused by the Secretary of State on the basis that neither parent had acquired the right of abode by birth in the United Kingdom, thus barring the Respondent from inheriting it by descent.

The Respondent appealed to the First-tier Tribunal, which allowed the appeal, holding that both parents had acquired citizenship and right of abode, and that the Respondent could derive right of abode from them. The Secretary of State appealed to the Upper Tribunal, which dismissed the appeal, endorsing the reasoning that the Respondent had acquired right of abode by descent from his mother.

The Secretary of State now appeals against the Upper Tribunal's decision.

Legal Issues Presented

1. Whether the Respondent has the right of abode in the United Kingdom by virtue of descent from his parents under the Immigration Act 1971 and subsequent nationality legislation.
2. The interpretation of the phrase "so had it" in section 2(1)(b)(ii) of the Immigration Act 1971 concerning acquisition of right of abode through grandparents.
3. Whether amendments, particularly section 45 of the Borders, Citizenship and Immigration Act 2009, remove discriminatory effects relating to citizenship acquisition by descent from mothers as opposed to fathers.
4. The proper application of the British Nationality Acts 1948 and 1981, and the Immigration Act 1971, to the facts concerning citizenship and right of abode status of the Respondent’s parents and the Respondent himself.

Arguments of the Parties

Appellant's Arguments

• The Respondent cannot acquire British citizenship by descent from his father because his father lost United Kingdom and Colonies citizenship upon Nigeria's independence before the Respondent's birth.
• The Respondent cannot acquire British citizenship by descent from his mother because he has not made the necessary application for registration under section 4C of the British Nationality Act 1981, and even if he had, he would fail to meet the conditions relating to right of abode and citizenship acquisition by descent.
• The phrase "so had it" in section 2(1)(b)(ii) of the Immigration Act 1971 means that the grandparent must have acquired citizenship in the United Kingdom, not abroad, limiting the right of abode to those with direct or indirect links to the United Kingdom itself.
• Section 45 of the Borders, Citizenship and Immigration Act 2009 does not extend the right of abode to the Respondent by equating descent from a mother to that from a father beyond the statutory conditions which the Respondent cannot satisfy.
• Section 1(5) of the Immigration Act 1971, which restricts rule-making powers, does not create any substantive right of abode for children of parents settled in the United Kingdom.
• The successful registration of the Respondent’s brother as a British citizen does not create any legitimate expectation or ground for the Respondent’s claim.

Appellee's Arguments

• The Respondent argued that the phrase "so had it" should be interpreted broadly to include grandparents who acquired citizenship of the United Kingdom and Colonies abroad, such as in St. Kitts, Nevis and Anguilla.
• The Respondent relied on the effect of section 45 of the Borders, Citizenship and Immigration Act 2009 to remove discrimination against maternal descent, effectively reading "father" as "father or mother" for citizenship acquisition purposes.
• The Respondent sought to rely on being a Commonwealth citizen who had the right of abode immediately before the 1981 Act commencement under section 2(1)(d) of the Immigration Act 1971.
• The Respondent emphasized section 1(5) of the Immigration Act 1971 as supporting settled Commonwealth citizens’ rights to enter and remain freely.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Bhawan) v Secretary of State for the Home Department [2009] EWHC 469 (Admin)	Interpretation of the phrase "so had it" in section 2(1)(b)(ii) of the Immigration Act 1971 as requiring that citizenship be acquired in the United Kingdom, not abroad.	The court accepted this precedent as correctly decided and applied its interpretation to reject the Respondent’s broader interpretation, emphasizing the need for a direct or indirect link to the United Kingdom itself for right of abode acquisition.

Court's Reasoning and Analysis

The court began by examining the statutory framework governing the right of abode, focusing on the Immigration Act 1971, the British Nationality Acts 1948 and 1981, and subsequent amendments. It identified two primary routes to right of abode: as a British citizen or as a Commonwealth citizen with right of abode immediately before the 1981 Act's commencement.

Regarding descent from the father, the court found that the Respondent’s father lost his United Kingdom and Colonies citizenship upon Nigerian independence before the Respondent’s birth, thus could not pass on citizenship or right of abode.

Regarding descent from the mother, the court noted the Respondent had not applied for registration under section 4C of the 1981 Act, and even if he had, he would fail the statutory conditions requiring that the mother would have had right of abode before 1983, which she did not by birth in the United Kingdom.

The court interpreted the phrase "so had it" as requiring that the grandparent must have acquired citizenship in the United Kingdom itself, rejecting the Respondent’s broader interpretation that would allow acquisition through grandparents born in colonies abroad.

The court rejected the submission that section 45 of the Borders, Citizenship and Immigration Act 2009 effectively equated maternal descent with paternal descent for citizenship acquisition beyond the statutory provisions, emphasizing Parliament’s chosen conditions which the Respondent could not satisfy.

The court found no merit in reliance on section 1(5) of the Immigration Act 1971, which did not create substantive rights but merely limited rule-making powers, and was repealed in any event.

Finally, the court addressed the Respondent’s brother’s successful registration but held it did not create any legitimate expectation or ground to challenge the refusal of the Respondent’s own application.

Accordingly, the court concluded that the Respondent does not have the right of abode and is not entitled to a Certificate of Entitlement.

Holding and Implications

The court ALLOWED the Secretary of State's appeal and overturned the decisions of both the First-tier and Upper Tribunals.

The direct effect of this decision is that the Respondent is not entitled to the right of abode in the United Kingdom and his application for a Certificate of Entitlement is refused. The court found that the previous tribunals erred in their interpretation of the relevant legislation. No new legal precedent was established beyond the application of existing statutory interpretations.