Keshwani v. Secretary of State for the Home Department

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	24 July 1974
Citation / Document Symbol	[1975] Imm AR 38
Type of Decision	TH/207/74(326)
Cite as	Keshwani v. Secretary of State for the Home Department, [1975] Imm AR 38, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 24 July 1974, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6288.html [accessed 21 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

KESHWANI v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/207/74(326)

Immigration Appeal Tribunal

[1975] Imm AR 38

Hearing Date: 24 July 1974

24 July 1974

Index Terms:

Naturalisation -- British Nationality Act 1948 -- Certificate of naturalisation issued in former British Protectorate of Uganda in 1956 -- Certificate granted by Governor of Uganda with the requisite approval of the Secretary of State -- Whether such naturalisation was "citizenship by naturalisation in the United Kingdom" giving right of abode as a patrial -- British Nationality Act 1948, s 10(1) & (2) -- Immigration Act 1971, s 2(1)(a).

Patriality -- 'Right of abode' -- Citizenship by naturalisation under British Nationality Act 1948 -- Certificate of naturalisation granted in 1956 by Governor of (former) Protectorate of Uganda -- Whether that certificate conferred citizenship "by naturalisation in the United Kingdom" giving right of abode -- British Nationality Act 1948, s 10(1) & (2) -- Immigration Act 1971, s 2(1)(a).

Held:

Citizenship of by United Kingdom and Colonies conferred by the issue of a certificate of naturalisation granted in 1956 in the former Protectorate of Uganda by the Governor of Uganda, acting with the requisite approval of the Secretary of State under the British Nationality Act 1948, s 10(1) & (2), was not "citizenship by naturalisation in the United Kingdom"; consequently it did not qualify the person so naturalised for a certificate of patriality giving him the 'right of abode' in the United Kingdom under s 2(1)(a) of the Immigration Act 1971.

The Tribunal so held on the facts and for the reasons which appear in the determination reported below.

Counsel:

E. M. Cohen, counsel for the appellant.

B. Lockett for the respondent.

PANEL: P. N. Dalton Esq (Vice-President), J. H. Bowman Esq, B. J. S. Edmond Esq.

Judgment One:

THE TRIBUNAL: The appellant in this appeal is Madatali Habib Keshwani, a citizen of the United Kingdom and Colonies who was born in Uganda on 23 May 1922. He arrived in the United Kingdom on 11 July 1970 at London Airport in possession of a Uganda Protectorate passport and he was subject to control under the Commonwealth Immigrants Act 1962/68.

When the validity of his passport expired on 28 July 1970 Mr Keshwani applied for and was issued with a United Kingdom passport which exempted him from immigration control.

On 23 February 1973 the appellant applied for a certificate of patriality and to have his passport endorsed to the effect that he had a 'right of above' in the United Kingdom. n1 In Part 1(a) of his application form (P2) it is stated that the appellant was naturalised in England. Mr Keshwani attached to his application form a certificate of naturalisation in respect of himself, which was issued under the British Nationality Act 1948 in the former Protectorate of Uganda on 28 December 1956. Section 2(1)(a) of the Immigration Act 1971, under which Mr Keshwani applied for a certificate of patriality provides: --

n1 Mr Keshwani stated in a letter accompanying his application for leave to appeal to the Tribunal that he attached importance to having a certificate of patriality because, as a business man, he would naturally wish to go for business anywhere, and his present status (though it exempted him from United Kingdom immigration control) did not enable him to settle in the Common Market countries; there was a difference between his present status and that of a patrial.

"2(1) A person is under this Act to have the right of abode in the United Kingdom if --

(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any part of the Islands." The Secretary of State refused the application for the reasons that Mr Keshwani was naturalised in the Uganda Protectorate in 1956 and therefore did not qualify for a certificate of patriality under s 2(1)(a) of the 1971 Act.

The appellant appealed to an adjudicator and set out his grounds of appeal as follows: --

"I have been naturalised as a citizen of the United Kingdom and Colonies as per certificate No. 334, photostat copy of which is enclosed herewith. The said certificate has been issued to me by H.M. Government's representative having been signed by the Chief Secretary, Uganda and Assistant Secretary (Authorised by the Secretary of State). I have taken the necessary Oath of Allegiance and issue of the Certificate to me is as good as one issued in the United Kingdom and therefore I should get the Certificate of Patriality." The appellant stated in his notice of appeal that a hearing of the appeal was not requested and the respondent did not request a hearing either. The appeal was therefore considered under r 12(a) of the Immigration Appeals (Procedure) Rules 1972.

In his determination the adjudicator, Mr I. M. S. Donnell, said that in his notice of appeal the appellant did not specifically allege that the certificate was not issued in Uganda but in his letter of 25 February 1974 to the clerk to the adjudicator he stated "this clearly implies that the naturalisation certificate was signed and registered in England and such I am entitled to certificate of patriality". The adjudicator referred to the certificate of naturalisation (forming annex 2 to the explanatory statement) and said he saw no reason at all to doubt that, as appearing from the fact of it, the certificate of naturalisation was issued in Uganda. That being so, Mr Donnell said, the appellant did not qualify under s 2(1)(a) of the Immigration Act 1971 for the issue of a certificate of patriality. The appeal was dismissed.

The appellant applied for leave to appeal to the Tribunal on the following grounds: --

"1. The certificate of naturalisation issued to me does not show the place of issue as Uganda and the affixing of revenue stamp of Kenya, Uganda and Tanganyika does not imply that the certificate was issued in Uganda. The stamp was affixed at the time of swearing of oath of allegiance and not at the time of issue of the certificate.

2. The certificate has been signed by the Secretary of State who was the Secretary of State for United Kingdom and not Uganda.

3. I believe that registration number quoted on the certificate is that of United Kingdom register and not of Uganda."

Leave to appeal to the Tribunal was granted.

Addressing the Tribunal Mr Cohen said that when Mr Keshwani was a British Protected Person in 1956 he applied for a certificate of naturalisation and this was granted by the Governor of Uganda after the approval of the Secretary of State had been obtained. The appellant therefore took the oath of allegiance and became a citizen of the United Kingdom and Colonies. After referring to subsequent events which are not in dispute Mr Cohen said that this appeal concerned the simple question of the meaning of the words "naturalisation in the United Kingdom" contained in s 2(1)(a) of the Immigration Act 1971. Mr. Cohen said that he understood that there was no authority on this point but submitted that any naturalisation must be within the United Kingdom within the meaning of the Act. He then referred to s 10 of the British Nationality Act 1948 which provides as follows: --

"Naturalisation of aliens and British protected persons.

(1) The Secretary of State may, if application therefor is made to him in the prescribed manner by any alien or British protected person of full age and capacity who satisfies him that he is qualified under the provisions of the Second Schedule to this Act for naturalisation, grant to him a certificate of naturalisation; and the person to whom the certificate is granted shall, on taking an oath of allegiance in the form specified in the First Schedule to this Act, be a citizen of the United Kingdom and Colonies by naturalisation as from the date on which that certificate is granted.

(2) The functions of the Secretary of State under the last foregoing subsection shall in any colony, protectorate or United Kingdom trust territory be exercised by the Governor; but he shall not grant a certificate of naturalisation except with the approval of the Secretary of State." Mr Cohen argued that this section in the 1948 Act shows clearly that a certificate of naturalisation is granted by the Secretary of State and that he merely delegates his powers to a Governor. This is a procedural device to enable a person to get naturalised in a territory overseas, and there are not two separate types of naturalisation. He submitted that if Parliament had intended in 1971 to create two separate types of naturalisation it would have been easy to do so by saying so in express terms, but there were no such express terms in the Immigration Act. Mr Cohen said that this argument was consistent with the view taken by Mr Macdonald in his book "The New Immigration Lawc n2 where (in para 79 at p 31) it is stated: --

n2 I. A. Macdonald, cThe New Immigration Law", Butterworths 1972.

"79. Naturalisation has already been discussed. According to section 2(1)(a) of the 1971 Act a person who has U.K. 'citizenship by... naturalisation... in the United Kingdom...' qualifies as a patrial. Naturalisation can only be granted by the Home Secretary and therefore, it is submitted, all naturalisation takes place 'in the United Kingdom', even though the alien or British protected persons may have submitted his papers to the Home Secretary from abroad. The position here contrasts sharply with that of registration, where specific provision is made for registration to take place outside the U.K. Therefore it is submitted that naturalisation of an alien or British protected person automatically confers patriality." We do not agree with the argument that s 10(2) of the British Nationality Act 1948 clearly shows that an application for naturalisation is granted by the Secretary of State and that he merely delegates his powers to a Governor. In our view the purpose and effect of this subsection is to transfer to the Governor of any particular colony, protectorate or United Kingdom trust territory the function or duty to grant naturalisation to an alien or British protected person applying for naturalisation, subject only to the requirement that the Secretary of State should first approve the grant. It was submitted that any naturalisation must be in the United Kingdom but if that were a correct interpretation of s 2(1)(a) of the 1971 Act the reference to 'the Islands' would be otiose. The appellant's certificate of naturalisation was clearly issued in Uganda. The document is headed Uganda Protectorate; the grant of the certificate by the Governor was witnessed by the them Chief Secretary, Uganda, Mr Hartwell, and the requisite oath of allegiance was sworn and subscribed to by the appellant in Kampala. The only reference on the document to the Secretary of State was in a printed endorsement showing that the Secretary of State had approved; the certificate was not signed by the Secretary of State. n3 In our opinion the arguments and submission by Mr Macdonald quoted above are not correct legal interpretations of s 2(1)(a) of the Immigration Act 1971. For these reasons we find that the certificate of naturalisation was issued in Uganda, and that being so the appellant does not qualify under 2(1)(a) of the Immigration Act 1971 for the issue of a certificate of patriality.

n3 Under the printed words of the endorsement, 'This certificate has been submitted to the Secretary of State for approval and approved by him' a signature was appended over the printed designation 'Assistant Secretary (Authorised by the Secretary of State)'.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Blackman & Blackman, Harrow.