British Citizenship by Descent:Trial and Error

A child born outside the UK (and all but one of the British overseas territories) to a British citizen (by birth, adoption, naturalisation or – in many cases – registration) parent automatically acquires British citizenship by descent at birth by operation of law. However that person may be unknown to authorities in the UK or to British consular officers overseas. When that person seeks to prove that he or she is a British citizen or seeks a UK passport as a British citizen what evidence is he or she required to adduce and what reception can he or she expect from British consular authorities?

The case of R(Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin), High Court, (15 October 2015), in which I acted as counsel for the Claimant, examines the hurdles faced by a British citizen by descent trying to secure a UK passport. The Claimant (a survivor of domestic violence, looking to rebuild her life) vindicated her position and secured a declaration that she was a British citizen by descent. However, it is the stance of the British consular officials, exercising passport functions, as to what evidence was required to prove citizenship and what approach should be taken to that evidence that is of wider public interest.

The British officials processing Ms Bondada’s application had prescribed certain forms of documentary evidence that were required before it could be accepted that her identity was as claimed and that she was a British citizen by descent. In addition they had limited the use of DNA evidence so as to exclude from consideration privately commissioned DNA evidence that they had not requested. Ms Bondada could not comply with the laundry list of prescribed evidence, as some documents had been lost in the decades since her birth in India in the 1960s.

Notwithstanding that, she had privately commissioned DNA evidence that she was the biological daughter of her Indian mother and one of a set of full siblings. DNA evidence from her late father (the British national parent) was not available, nor was his passport from the time he traveled to India to visit her mother, during which visit Ms Bondada was conceived. However her father was named in other documentation relating to her. In the late 1970s she had visited the UK traveling with her mother, at which time she had been included in the latter’s Indian passport. Mother and daughter were granted entry clearance by UK officials and had been admitted to the UK as spouse and daughter respectively of a British national.

On the evidence available, for her not to have been born (legitimate) to her British national father, her mother would have had to have had a secret lover who had fathered each and every child during her parents’ marriage. Such was the UK official position. Unsurprisingly, the Claimant considered that she could easily prove her case. The Court agreed describing the conduct of the UK government as ‘astonishing and grotesque’.

The case is useful for re-enforcing the following points:

1. Where a person has automatically acquired British citizenship by descent and seeks recognition of the same or a UK passport, the Home Office does not confer or grant British citizenship, instead it recognises a position subsisting in law,

2. There is no list of acceptable evidence prescribed by law that must be adduced to prove citizenship,

3. DNA evidence may be adduced and advanced irrespective of any policy of UK officials as to when such evidence will be considered,

4. Any failure by an applicant to answer the questions asked by consular officials at interview need not be decisive,

5. Minor discrepancies in documentary evidence need not be material,

6. Where an application is rejected, an applicant may apply to the High Court for a declaration that she is a British citizen,

7. It is for the Court to decide whether or not she is a British citizen following trial of the issue,

8. At trial, she who asserts, must prove her case on the balance of probabilities,

9. Oral evidence from witnesses may be advanced at trial. Even where, as here, the claim proceeds in the Administrative Court, the case is not a judicial review but rather a trial of the issues.

Perusal of the judgment reveals a dispiriting approach taken by UK consular officials to the task in hand. Around the world there are millions of British citizens by descent, many of whom may struggle to prove their citizenship and secure passports, protection and assistance from UK officials where needed. This judgment shows the benefits of persevering.

The legal team consisted of myself, as counsel for the Claimant, together with Graeme Kirk of Gross and Co as solicitor for the Claimant.

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