High Court determines proper interpretation of an original ‘patrial’ provision of the 1971 Act

In the clause “had that citizenship by his birth, adoption, naturalisation or registration in the United Kingdom”, does the requirement for it to be in the United Kingdom apply to just registration or all of the other means of acquiring citizenship on the list? This was the question before the High Court in Murugason v Secretary of State for the Home Department [2022] EWHC 3160 (Admin).

Background

Mr Murugason’s father was born in 1948 in Penang, a British dominion at the time, and was thus a British subject by birth. When the British Nationality Act 1948 came into force, his father became a Citizen of the UK and Colonies (CUKC).

In 1957, Malaysia gained independence, which led to most of its citizens losing their CUKC status, as was the norm when former colonies gained independence. Penang, however, was unusual in that the UK exceptionally agreed that its residents could keep their CUKC status. Mr Murugason’s father remained a CUKC.

Mr Murugason was born on 13 December 1972 and became a CUKC by descent by virtue of section 5(1) of the British Nationality Act 1948. Following Mr Murugason’s unsuccessful application for either a British passport or a certificate of entitlement, he challenged the Home Office’s position that he did not have right of abode by way of judicial review.

Patrial or non-patrial

Whether Mr Murugason has right of abode depends on the “patrial” provisions introduced by the Immigration Act 1971. These provisions were intended to separate CUKCs who had a right of abode in the UK through their relationship to the country from “non-patrial” CUKCs who found themselves with no right of abode in the UK despite their nationality.

Section 2(1)(b) of the 1971 Act, as it was then, on which Mr Murugason relied, reads:

Statement of right of abode, and related amendments as to citizenship by registration

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

[…]

(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—

(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands

[…]

Mr Murugason argued he is a CUKC citizen born to a parent who, at the time of his birth, had CUKC citizenship by birth and that was all that was required. His father’s birth did not have to be in the UK because the “in the United Kingdom or in any of the islands” referred only to registration, the last item on the list.

The Home Secretary disagreed, arguing that “in the United Kingdom or in any of the islands” modified the whole list, including “by his birth”. As his father was not born in the UK, he was excluded from this provision and was thus a “non-patrial”, with no right of abode. The High Court agreed.

A case for the Oxford comma

On a purely linguistic analysis, the judge found that if the “in the UK” modifier was supposed to relate only to registration, the drafters of the Act would have put a comma before it.

“15. […] There is a difference in sense between the two constructions –

i) “by his birth, adoption, naturalisation or registration in the United Kingdom”;

or

ii) “by his birth, adoption, naturalisation, or registration in the United Kingdom”.

16. An even clearer way in which to signal that the qualifying words only applied to ‘registration’, if that was what was intended, would have been to insert another ‘or’ and ‘by his’ as follows: “by his birth, adoption or naturalisation, or by his registration in the United Kingdom.”

Thus, “in the United Kingdom” was intended to apply to all four ways of gaining citizenship.

The court found that this construction is supported by other parts of the Act, such as section 2(1)(d), which provides an alternative method of acquiring a right of abode to a Commonwealth citizen by descent, but only where the parent was a CUKC “by his birth in the United Kingdom or in any of the islands”. The judge found no reason “why this route should be limited to those whose parent was born in the UK” but the other route should not.

The court held that the purpose behind the legislation was clear: to separate CUKCs into patrials, who had a right of abode, and non-patrials, who did not. In that context, restricting the “in the UK” qualifier to just one of the four methods of gaining citizenship did not make sense. Mr Murugason did not, therefore, have a right of abode.

Conclusion

This is not a particularly surprising conclusion. Had Mr Murugason’s argument about the correct construction of that phrase been correct, millions more people in the world would have a right of abode in the UK, defeating the purpose of the patrial and non-patrial distinction in the 1971 Act. Still, it’s a good reminder that however messily the Immigration Rules are sometimes drafted, it is still possible to rely on a purely linguistic interpretation of an Act of Parliament.