Huson v Secretary of State for the Home Department (Entry Clearance Officer) (Rev 1) [2021] EWHC 885 (Admin) looks like a case about a 19-year- old’s entitlement to the right of abode. We don’t see many right of abode cases these days, mainly because since 1 January 1983 the only way to acquire the right of abode in the UK is by being a British citizen. So naturally we got excited.

Initial excitement was quickly dampened, however, as the High Court set about grappling with the real issues in the case: paternity and legitimacy of a child born of a polygamous marriage. “Legitimacy” of children is a horribly outdated concept which discriminates against children born out of wedlock. Sadly this concept remains painfully intertwined with British nationality law. Similarly, paternity is another area in which our citizenship law has been slow to modernise (see e.g. the recent-ish case where the child’s mother was married to another man at the time of the child’s birth).

Certificate of entitlement to the right of abode

Mr Huson was born in Bangladesh to a British citizen father and a Bangladeshi citizen mother. His parents were married, but his father was already married to another wife. This was therefore a polygamous marriage. 

Mr Huson asserted his entitlement to the right of abode on the basis that he was a British citizen by descent. Anyone with the right of abode can apply for a “certificate of entitlement” to be endorsed as a vignette in their foreign passport. Doing so allows them to prove their right of abode in the UK. 

It’s quite unusual for a British citizen to take this route. Normally, a British citizen would just apply directly to Her Majesty’s Passport Office for a British passport. For reasons undisclosed in the judgment, Mr Huson applied for a certificate of entitlement instead of a passport. This is likely to do with Bangladesh’s stance on dual citizenship and holding of multiple passports (although recent cases suggest that Bangladesh permits dual citizenship until the age of 21).

At all events, this case was a judicial review of a decision of an Entry Clearance Officer (ECO) to refuse Mr Huson’s application for a certificate of entitlement.

Polygamy and legitimacy

In fact there have been multiple refusals over the years, beginning in 2002. The ECO’s reasons for refusal have oscillated between Mr Huson’s parents’ polygamous marriage being unlawful and Mr Huson’s paternity not having been established.

At the time of Mr Huson’s birth in 2001, section 50(9)(b) of the British Nationality Act 1981 limited the relationship of father and child only to “legitimate” children. Legislative amendments changed this for children born after 1 July 2006.

Under section 11 of the Matrimonial Clauses Act 1973, a polygamous marriage will be void if either party was domiciled in England and Wales at the time of marriage. Mr Huson’s father was domiciled in England and thus the marriage was void.

However, in the very specific case of a father being domiciled in England and Wales at the time of the child’s birth, section 1 of the Legitimacy Act 1976 comes to the rescue. It treats the child of a void marriage as legitimate if, at the time of conception or celebration of the marriage, both or either party reasonably believed the marriage to be valid. It is a rebuttable presumption that one of the parties to the void marriage reasonably believed it to be valid.

In Mr Huson’s case, the High Court found that insufficient evidence had put forward by the ECO to suggest that domicile was anywhere other than England and Wales. On that basis, Mr Huson would be the “legitimate” child of his father — provided that paternity could be established.

Paternity

The ECO also disputed Mr Huson’s claimed relationship to his father. This was particularly perplexing as in previous years there had been no such dispute and the ECO had readily accepted the paternal relationship. It was only in recent decisions that the ECO began to heavily hint at the need for DNA evidence to prove paternity. It was not possible to provide this as Mr Huson’s father passed away in 2018.

The High Court found the ECO’s fixation on DNA tests, to the exclusion of all other evidence, to be unlawful (paragraph 60).

In a traditional judicial review case, the reviewing court will not make findings of fact. The court will review the impugned decision against the evidence available to the decision-maker. A finding of unlawfulness (or irrationality or unreasonableness) would be sufficient for the matter to be remitted to the decision-maker (in this case the ECO).

Here, the High Court chose to go one step further and make a “precedent fact” determination of its own on the question of paternity.

Whilst a court of judicial review is predominantly concerned with errors of law, as both counsel acknowledged, and as is endorsed by the Court of Appeal in Harrison referred to above, where there is an identifiable precedent fact which is central to the issue as to whether or not a person is entitled to citizenship, and which is capable of resolution by the court, the matter should be determined on the merits. It is increasingly common for the Administrative Court to resolve such issues, although it should still be considered the exception, rather than the norm. The alternative here would be for the re-submission of the issue to the decision maker with a direction to take into account the balance of the evidence.

Paragraph 59

The court concluded, on the balance of probabilities and on the evidence available, that Mr Huson was the natural son of his British father (paragraph 63). This precedent fact determination of paternity, combined with the finding of unlawfulness in the ECO’s approach to legitimacy, led to the overall conclusion that his claim for a certificate of entitlement succeeds.

The ECO’s decision was quashed and a declaration provided that Mr Huson, on account of his British citizenship by descent, is entitled both to the right of abode in the UK and to a British passport.