Where a person is born outside of the UK to a British citizen parent then that person can acquire British Citizenship. This is known as British Citizenship by Descent. Often such a person will not be registered as British or even known to the UK Immigration authorities or British consular authorities abroad. Such a person would have to prove on a balance of probability that they are in fact entitled to British Citizenship as by law they will have acquired citizenship at birth. Recently the High Court decided the Case of R(Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin). This case is significant as it considered the difficulties that may be faced by an applicant who has acquired British citizenship by descent and is looking to obtain a UK passport.
Facts of Case
The Bondada case concerned a woman who had acquired British Citizenship by descent from her British national father and sought to acquire a UK passport. It was of course for the immigration authorities to consider whether documentation produced in her application satisfied the requirements of the immigration rules. The British authorities processing Ms Bondada’s matter considered her application and the documentation she had submitted against the Home Office criteria of documentary evidence required for an applicant to establish they are entitled to British Citizenship by descent. The Home Office refused Ms Bondada’s application. The reasons included a refusal to accept privately commissioned DNA evidence which had not been sought by the British authorities. Ms Bondada was unable to comply with the list of documentation that had been set as necessary. This was because some of her documentation proving her identity had been long lost in the 1960s.
Ms Bondada had siblings with whom she shared her biological mother and biological British father. DNA evidence from her father was unavailable as unfortunately he had passed away by the time of her application. There was some evidence to demonstrate that her father had traveled to India where Ms Bondada was conceived and born. Ms Bondada had previously visited the UK with her mother and had been named in her mother’s passport. At that stage, the immigration authorities accepted that Ms Bondada and her mother where the Spouse and daughter of a British national.
High Court’s Decision
On a balance of probability the Court decided that Ms Bondada was in fact related to her British national father as she claimed. The immigration authorities had however refused her application on the basis that the lack of documentary evidence provided meant the applicant had not demonstrated that her father was a British national. More specifically the refusal was on the basis that it was possible that her mother had in fact had another partner besides her British national father. The Court rejected this notion and made the following important conclusions:
- Where someone is a British citizenship by descent and seeks a UK passport this is not something that is granted but rather it is recognised as a position existing in law.
- There is no one list of documents which must be produced to prove citizenship but rather in each case documents required will vary depending on the facts pertaining to each individual’s matter.
- DNA evidence is of importance and can be produced and should be considered by UK immigration authorities regardless of policy on this matter.
- A failure by an applicant to produce answers to questions of immigration authorities may not be determinative of their matter.
- Discrepancies found in documents may not be determinative of an individual’s matter.
- If an application is rejected then applicants can apply to the High Court as in the above case for a declaration that they are a British citizen.
UK Immigration Legal Advice for Naturalisation and British Citizenship
Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run applicants will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines. The Bondada case is the perfect example of the importance of legal advice when applying for British citizenship. Many make the mistake of providing insufficient documentation and thus fail to evidence their recognised entitlement to a UK passport.
Our team of experienced and professionally qualified immigration solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.
If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 0845 8622 529 for a free telephone assessment and free case assessment.