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Al Hashimi, R (On the Application Of) v Secretary of State for the Home Department
Summary of Opinion
Factual and Procedural Background
The Appellant was born in The State on 30 December 1981. The Appellant's mother was born in The City and became a British Overseas Citizen under historical nationality legislation. The Appellant is a national of another State but has never resided there and continues to live in The State. The Appellant applied for registration as a British Overseas Citizen; the Respondent rejected the application by letter dated 5 June 2024. The Appellant sought judicial review, arguing that the statutory provisions relied on were unlawfully discriminatory on the basis of sex and incompatible with Article 14 read with Article 8 of the Convention. Lang J (Judge Lang) dismissed the claim for lack of jurisdiction on 4 February 2026. With permission, the Appellant appealed to the Court of Appeal. The appeal was heard on 1 July 2026 and determined on 22 July 2026.
Legal Issues Presented
- Whether the Appellant is within the "jurisdiction" of the United Kingdom for the purposes of Article 1 of the European Convention on Human Rights, so as to enable a claim under Article 14 read with Article 8 challenging the Respondent's refusal to register her as a British Overseas Citizen.
- Whether principles recognising extraterritorial jurisdiction (including those related to diplomatic/consular action or nationality-based links) extend to the circumstances of the Appellant's claim.
Arguments of the Parties
Appellant's Arguments
- Attorney Southey argued that, although jurisdiction is primarily territorial, the list of exceptional extraterritorial circumstances is not closed and international law principles (including analogies with consular/diplomatic jurisdiction) support recognising jurisdiction here.
- The Appellant contended that refusal to recognise nationality rights would leave her no forum to vindicate discrimination claims and that Convention rights should be interpreted to be practical and effective.
- The Appellant relied on the capacity of Article 1 rights to be "divided and tailored" (as in HF) and argued this could support jurisdiction in relation to Article 14 read with Article 8.
Respondent's Arguments
- Attorney Blundell submitted that the relevant authorities require an effective exercise of authority or control over the person or territory; mere capacity to take decisions affecting a person abroad or nationality-based links do not establish Article 1 jurisdiction.
- The Respondent argued the case law (including MN and Agostinho) shows that jurisdiction requires control over the person and that the present facts do not meet the threshold for extraterritorial jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Romein v Advocate General for Scotland [2018] UKSC 6, [2018] AC 585 | Commentary on historical nationality rules and gender discrimination in transmission of citizenship. | Noted as contextual history to the Appellant's statutory position regarding maternal transmission of citizenship. |
| Al-Skeini v United Kingdom (ECtHR) 53 EHRR 18 | Establishes that jurisdiction is a threshold criterion and recognises exceptional extraterritorial circumstances. | Accepted as foundational: jurisdiction is threshold and extraterritorial jurisdiction is exceptional. |
| Agostinho v Portugal (2024) 78 EHRR SE9 | Jurisdiction reflects public international law; emphasises territorial primacy and need to explore link and control. | Relied on to confirm territorial primacy, criteria for extraterritorial jurisdiction and that control over the person (not merely interests) is required. |
| MN v Belgium Application no. 3599/18 (5 March 2020) | Confirms territorial notion and discusses that administrative/embassy control is insufficient and procedural links alone do not establish jurisdiction. | Used to support the proposition that decisions affecting persons abroad (e.g. visa refusals) do not establish jurisdiction absent authority/control over the person. |
| Banković v United Kingdom (2007) 44 EHRR SE5 | Shows travaux and confirms that extraterritorial acts producing effects outside territory are exceptional. | Referred to in support of territorial focus and exceptional nature of extraterritorial jurisdiction. |
| Ukraine and the Netherlands v Russia (Applications 8019/16, 43800/14 and 28525/20) (30 November 2022) | Identifies two criteria for extraterritorial jurisdiction: effective control over an area and State agent authority/control over individuals; elaborates on scenarios. | Adopted to clarify the personal and territorial concepts of extraterritorial jurisdiction and the emphasis on control. |
| X v. Germany [no. 1611/62, Commission decision of 25 September 1965]; X v. the United Kingdom no. 7547/76; S. v. Germany no. 10686/83; M. v. Denmark [no. 17392/90] | Examples where diplomatic/consular acts can in some circumstances engage jurisdiction (actions/omissions of diplomatic or consular officials). | Cited to explain limits of diplomatic/consular analogies and that physical power/control in official capacity may give rise to jurisdiction, but not applicable here. |
| HF v France (2022) 75 EHRR 31 | Demonstrates that Convention rights can be "divided and tailored" and that Article 3(2) Protocol 4 may give rise to jurisdiction in special circumstances. | Distinguished: HF concerned the special nature of Article 3(2) Protocol 4 and does not support establishing jurisdiction for Article 14 in the present facts. |
| Markovic and Others (cited) | Confirms that bringing civil proceedings in a State creates a procedural jurisdictional link for Article 6. | Noted to show procedural links may create jurisdiction for Article 6 but do not establish Article 1 jurisdiction generally. |
| Genovese v Malta (2014) 58 EHRR 25 | Held there was a violation of Article 14 in conjunction with Article 8 in relation to nationality-based discrimination. | Considered but treated as not supportive here because jurisdictional questions were not argued in that case and may have been academic. |
| S1 v Secretary of State for the Homes Department [2016] EWCA Civ 560, [2016] 3 CMLR 37 | Discusses limits of nationality as autonomous basis for jurisdiction and reiterates requirement of authority/control. | Applied to reject nationality-based jurisdiction and to support that authority in international law is not the same as exercising Article 1 jurisdiction. |
| R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, [2014] 1 WLR 2697 | Refused jurisdiction where Foreign Office provided consular assistance but did not exercise authority or control over the individual. | Relied upon to show that diplomatic/consular support or inaction does not amount to authority or control establishing jurisdiction. |
| Soering v United Kingdom (A/161) (1989) 11 EHRR 439 | Principle that Convention rights should be effective; cited generally for interpretive approach. | Referred to by the Appellant for the effectiveness principle, but the court found it did not alter jurisdictional limits here. |
| Smith v Ministry of Justice [2013] UKSC 41, [2014] AC 52 | Explains "exceptional" in Al-Skeini and that list of extraterritorial circumstances is not closed. | Adopted to underline that exceptional does not mean impossibly high threshold but confirms need to apply established criteria. |
| R3 v Secretary of State for the Home Department [2023] EWCA Civ 169 | Affirms that domestic courts must apply ECtHR decisions when assessing jurisdiction for HRA purposes. | Used to support that Strasbourg jurisprudence guides domestic application of Article 1 jurisdiction. |
| R (Al Skeini) v Secretary of State for the Home Department [2007] UKHL 26, [2008] 1 AC 153 | Domestic recognition of ECtHR principles on extraterritorial jurisdiction. | Referred to as authoritative precedent for applying ECtHR principles domestically. |
| Birmingham City Council v Jones [2023] UKSC 27, [2024] AC 168 | Domestic courts may apply Strasbourg principles to novel situations but should not establish new Convention principles. | Relied on to caution against creating new principles of Convention law in novel factual contexts. |
| Re Caoimhe Ni Chuinneagain [2022] NICA 56 | Discusses nationality as a legal bond and a state's prerogative to determine nationality rules. | Quoted to explain the international law context and state sovereignty in nationality matters. |
| Nottebohm (Liechtenstein v Guatemala), judgment of 6 April 1955, ICJ Reports 1955 | Defines nationality as a legal bond based on genuine connection and attachment. | Used to explain the international law conception of nationality and its legal consequences. |
| Carter v. Russia (no. 20914/07, 21 September 2021) (cited) | Illustrates that Convention rights can be divided and tailored to the individual's situation. | Cited in support of the "divided and tailored" approach but not applied to extend jurisdiction here. |
Court's Reasoning and Analysis
The court began from the established principle that Article 1 jurisdiction is primarily territorial and is a threshold criterion (Al-Skeini). Extraterritorial jurisdiction arises only in exceptional circumstances and, where relevant, is governed by two main criteria: effective control over an area or State agent authority and control over individuals (Ukraine and the Netherlands v Russia; Agostinho; MN). The court emphasised that the requisite concept of control focuses on control over the person rather than over that person's interests, and that the mere taking, or capacity to take, decisions affecting a person abroad does not establish jurisdiction (Agostinho; MN).
The court considered the Appellant's reliance on diplomatic/consular analogies and on HF. It held that the present facts do not involve any exercise of authority or physical control by the United Kingdom over the Appellant, and therefore the diplomatic/consular authorities do not support establishing jurisdiction. HF was distinguished on the basis that Article 3(2) of Protocol No.4 has a particular subject-matter necessitating protection for nationals wishing to enter their State; that special character does not apply to Article 14 read with Article 8.
The court rejected the submission that recognising jurisdiction here would merely avoid inconsistency with another State's territorial rights; the case law requires an effective exercise of authority or control, not merely absence of conflict with other States. The court also held that procedural connections (such as bringing proceedings) do not create Article 1 jurisdiction for the purposes of Article 14/8 beyond their limited procedural effect (as in MN and HF). Applying these principles to the facts, the court concluded that the Appellant had never been within the UK's territory, had no private or family life in the UK, and that the Respondent had not purported to exercise authority or control over her; accordingly the jurisdictional threshold was not met.
Holding and Implications
DISMISSED
Holding: The Court of Appeal dismissed the appeal. The court held that the Appellant is not within the United Kingdom's jurisdiction for the purposes of Article 1 of the Convention in respect of her challenge to the refusal to register her as a British Overseas Citizen; therefore the claim under Article 14 in conjunction with Article 8 cannot be pursued in domestic courts.
Implications: The immediate consequence is that the Appellant's Convention claim cannot proceed in the United Kingdom. The court did not establish any new Convention law principle; it applied established Strasbourg and domestic authorities to confirm that nationality-based interests or legislative decisions affecting a person abroad do not, without more, give rise to Article 1 jurisdiction.
Participants and Anonymised Representation
Appellant represented by Attorney Southey and Attorney Khubber (instructed by Company A). Respondent represented by Attorney Blundell and Attorney Laird (instructed by Company B). Judgment given by Judge Newey (leading), with Judge Andrews and Judge Moylan concurring. Earlier decision at first instance by Judge Lang.
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