Written evidence from Aden & Co Solicitors (NBB0031)

Nationality and Borders Bill: seeking an amendment to Part 1 of the Bill

Executive summary:

Amendment to enable the children of British Overseas citizens (BOC) otherwise than by descent and born in the five year period from 1 January 1983 to register as British Overseas citizens by descent. This would correct an historical injustice that allowed registration, as BOCs, of children of BOCs by descent but not the children of BOCs otherwise than by descent.

Background and Issues

People of Somali ethnicity, born in the Colony of Aden prior to its independence from the UK, were Citizens of the United Kingdom and Colonies by birth, ie otherwise than by descent. This group did not lose their nationality on independence of Aden as they did not become citizens of the People’s Republic of South Yemen (PRSY)[1].
The British Government claimed that people of Somali descent born in the Colony of Aden became citizens of the PRSY after independence and therefore lost their CUKC status [2].
As a result Somalis born in Aden prior to 14 August 1968 were denied CUKC and (from 1 January 1983) BOC passports [3]
The children of BOC fathers otherwise than by descent are themselves BOCs by descent if they were born before 1 January 1983.
In addition, the children of BOCs (fathers) by descent were able to register as BOCs and s27 BNA 1981 entitled BOCs by descent to register their children within 12 months of birth which continued under transitional provisions from 1 January 1983 to 31 December 1987 [4]
However, the children of BOCs otherwise than by descent were not accorded the same right
While precise numbers are not available it is anticipated that the number of children of BOCs born during the transitional period who could benefit from an amendment to the law would be between 1,000 and 3,000 though the number could indeed be higher or lower.
Those to benefit would be people who have not acquired any other nationality apart from Somali passports and who are therefore often unable to travel or acquire lawful residence in other countries because of the problems associated with holding Somali passports, (eg that they are often not recognised as valid travel documents).
Since an amendment to the law would not grant British citizenship, those benefitting would not be entitled to reside in the UK and therefore the cost to social welfare resources would be negligible.
As the Nationality and Borders Bill is going through parliamentary readings this would be an appropriate time for an amendment to be considered.
Some statements from the parents of some potential beneficiaries is attached to add some context to the issues faced by the parents in acquiring recognition of their BOC status.
In order to correct this historical injustice it is suggested that amendments are made to the Nationality and Borders Bill to allow for the discretionary registration of the children of BOCs otherwise than by descent, where those children were born between 1 January 1983 and 31 December 1987.

Suggested Amendment to British Nationality Act 1981

27(A)

(1) A person born in a foreign country within 5 years of commencement, shall be entitled, on her application for registration as a British Overseas citizen made within a period of 36 months of the coming into force of this section, be registered as such a citizen if –

(2) The requirements of s (9)(2) are fulfilled in the case of that person’s father or mother, these requirements being:

Immediately before commencement or at his or her death (whichever was earlier)-

Was a citizen of the United Kingdom and Colonies otherwise than by descent; and
Became a British Overseas citizen at commencement and remained such a citizen throughout the period from commencement to the date of birth of the applicant, or if he died during that period, throughout the period from commencement to his death; or
Would have become a British Overseas citizen (otherwise than by descent) at commencement but for his death; and
Had the circumstances allowed, he would have sought to register the applicant as a British Overseas citizen. Those circumstances being:

A British Overseas citizen otherwise than by descent had been able to register his child, born within 5 years of commencement, as a British Overseas citizen in the same way that a British Overseas citizen (by descent) could; and
Had he been recognised as a Citizen of the United Kingdom and Colonies after independence of the colony from the United Kingdom, he would have sought to register his child as a British Overseas citizen

Conclusions

People of Somali ethnicity born in the Colony of Aden, prior to independence, suffered injustices because:

they were denied British national passports and
As a result they were unable to register their children, born after 1 January 1983 but within the transitional period given to the children of BOCs by descent as

Their children were not permitted to be registered, being the children of BOCs otherwise than by descent and
Even if they had been permitted, owing to the routine unwillingness of the British authorities to recognise CUKC and BOC status could not have done so.

An amendment to the Nationality and Borders Bill in the terms above, would correct this injustice

Additional Reading

Summary of Yemeni Law (Annex A)
R (on the application of Mohamed Abdullahi Omar Nooh and 3 others) v SSHD [2018] EWHC 1572 (Admin)
Sections 9 and 27 British Nationality Act 1981
Statements (attached – note that we were unable to convert all signed statements to word form and so the unsigned versions are attached but signed ones are available upon request.)

-Annex A-

Nationality Law Framework

1. By virtue of birth in the Colony of Aden, each Claimant was a Citizen of the United Kingdom and Colonies (‘CUKC’) by virtue of birth within the United Kingdom and Colonies, see the British Nationality Act 1948 (‘the 1948Act’), s 4.

2. Aden (the town/port) was acquired by the Crown in 1839 and became part of the Crown’s dominions from that point (although it was initially administered from British India as the Aden Settlement. On 1 April 1937 it became part of newly constituted Crown Colony.

3. On 1 January 1949, the Aden Colony (comprising Aden, Perim Island and the Kuria Muria Islands) came within the United Kingdom and Colonies for the purposes of the 1948 Act (i.e. for British nationality purposes).

4. On 18 January 1963 the Colony of Aden (not including Perim Island and the Kuria Muria Islands) joined the Federation of South Arabia as a Member State (while still remaining a Crown Colony).

5. On 30 November 1967, following a movement for independence by the National Liberation Front (‘NLF’), the People’s Republic of South Yemen was declared over a territory including the Colony of Aden. Provision was also made for the independence of South Yemen in United Kingdom law.

6. In the Aden, Perim and Kuria Muria Islands Act 1967 (‘the 1967 Act’), s 1(1) provides that on the ‘appointed day’ in relation to a territory to which the section applies, the territory shall cease to form part of the Her Majesty’s dominions.

7. By the Aden, Perim and Kuria Muria Islands Act 1967 (Appointed Day) Order 1967 SI 1967/1761 the ‘appointed day’ in relation to Aden is 30 November 1967. However,

this ‘appointed day’ has no relevance for citizenship purposes, relating merely to the day on which the Colony of Aden ceased to exist.

8. Provision for the termination of CUKC status for those connected to the newly independent state of South Yemen was made by paragraph 1(1) of the Schedule to the 1967 Act. Pursuant to an order of the Secretary of State, any person:

(a) on a ‘specified date’,

(b) in consequence of his connection with a territory designated by the order,

(d) whether that nationality or citizenship was acquired before or on that date,

(e) who was a CUKC immediately before that date,

(f) shall cease to be a CUKC on that date.

9. By the British Nationality (People’s Republic of Southern Yemen) Order 1968 (SI 1968/1310) (‘the 1968 Order’):

(a) the specified date is 14 August 1968,

(b) the designated territory is the People’s Republic of Southern Yemen, and

10. Where a CUKC by virtue of birth in the Colony of Aden acquired Southern Yemeni nationality on or before 14 August 1968, then as a matter of United Kingdom law, that person automatically lost CUKC status.

11. Automatic acquisition of Southern Yemeni nationality is governed by the People’s Republic of Southern Yemen ‘South Yemen’ Law of Nationality 1968 (No 4) (in force 4 August 1968). This is foreign law. Chapter 2, article 2 provides:

Acquisition of Nationality by Birth

2. The following shall be considered Southern Yemeni by birth: -

(a) Any person born of a Southern Yemeni father in or outside the Republic before or after the appointed date.

(b) Any Arab born in the Republic provided that one or both of his parents has resided in the Republic for at least five years.

(d)

(i) Any person born in the Republic of a Southern Yemeni mother and of a father of unknown nationality whose relationship to his father is not legally proved.

() Any person born in the Republic of two unknown parents so long as the contrary is not proved.

(e) Any person proved to have emigrated while being Southern Yemeni. This is applicable to his children born abroad. If they acquire another nationality they must give it up if they wish to continue to enjoy or to keep their Southern Yemeni nationality.

12. Further, material definitions are found in Chapter 1, article 1:

‘Southern Yemeni’: a person having southern Yemeni nationality by birth, registration, naturalization or otherwise.

‘Republic’: the People’s Republic of Southern Yemen.

‘Arab’: any person belonging to the Arab nation and holding the nationality of any Arab State.

‘The appointed date’: Independence day, 30th November 1967.

13. There is no supplementary definition of ‘Arab’ found in other South Yemeni legislation, to supplement that found in article 1 of ‘South Yemen’ Law of Nationality 1968 (No 4).

14. Further, Somalia was not and is not an ‘Arab state’. on the date when the Claimants were born, on 4 August 1968 (when ‘South Yemen’ Law of Nationality 1968 (No 4) came into force), or on 14 August 1968 (the ‘specified date’ for UK law).

15. On the termination of British rule in the Colony of Aden and the establishment of the independent state of South Yemen, the Claimants did not lose their CUKC status. Nor did they do so on the ‘specified date’ of 14 August 1968 thereafter.

MUNA SULEIMAN AHMED
ZAINAB SULEIMAN AHMED
MOHAMED SULEIMAN AHMED

STATEMENT SULEIMAN AHMED ABDI

I, Suleiman Ahmed Abdi, resident at Flat 503, Amana Tower, Al Sheikha Wadeema bint Saeed Building, Khalidyah Street, Abu Dhabi, the United Arab Emirates ('UAE'), make this statement believing it to be correct and true. I also confirm that the contents have been read to me in Arabic.

1. My name is Suleiman Ahmed Abdi Yousef and I was born in Aden, Yemen on 25 September 1941. I hold British Overseas citizen passport no. 505388215, issued on 25 April 2012.

2. Both my parents were born in British Somaliland, my mum, Dahabo, in around 1922 and my dad, Ahmed Abdi Yousuf, in about 1919/20. I do not know when they married.

3. I would like to comment that the information contained in this statement that cannot be evidenced by documents and relies on my memory is correct to the best of my knowledge and the details of the events are accurate. However, my memory is going and so I do not remember precise dates and years of when things happened. I have not therefore been able to give accurate dates and some are estimates based on my memory and the historical context as well as information I have previously given my solicitor when my memory was better.

4. I completed my schooling in Aden and attended the Techinical Institute in Ma'alla, Aden. I then undertook three years' service in the RAF before working as a seaman until my departure from Aden in 1967.

5. After leaving Aden in 1967 I went straight to Cairo and stayed there for around 2 months. I then returned to Aden and stayed there for approximately 2 months. I travelled to Syria and moved between Syria and Lebanon for 2 months looking for work. That was in 1968. I then moved to Kuwait for between 2 and 3 years and worked as a ticket seller on the Ministry of Transport buses. I left Kuwait in around October 1970 and went to Greece and lived there for about 3 months and then travelled to Somaliland where I stayed for about 2 years. I travelled from Somaliland to Basra, Iraq stayed there for around 2 years. I worked as a clerk at the sea port in Basra. From Iraq, I travelled to the UAE arriving in June 1975. I worked for Abu Dhabi Port as a customs officer for thirty years until my retirement in 2005. I still live in Abu Dhabi.

6. My first passport was a CUKC passport but I lost this at some point probably in the early 1970s. I don't recall exactly when but I left Aden in 1967 with a CUKC passport. I still have my Certificate of Nationality and Identity as a CUKC — Seamans ID confirming that I was a British subject by birth. This document was issued in 1967 and is valid until 3 October 1972.

7. As stated above, I left Aden using my CUKC passport but when I returned a few months later I did not try to renew my CUKC passport and instead I obtained a Somali passport. I am not certain that the CUKC passport was expiring when I returned but my memories are that I could not renew it. There were two main reasons for this. The first because it was known that the British were refusing to renew CUKC passports and secondly due to the political climate in Yemen after independence from the UK.

8. Regarding the first reason, people in the Somali community in Aden told me that the British would not issue me with a passport. This gave me cause for concern and I assumed that others in my community knew the situation. There were stories of other Somalis trying to renew their CUKC passports and the British refusing to renew them and claim we lost our British nationality on independence. Also, others in the community said that it would be better to obtain a Somali passport to get out of Aden.

9. Aden was under communist rule at this time. This made living conditions difficult. There was suppression of certain minority groups including Somalis, Jews and Indians. This was especially so for those who held British passports as they were viewed as pro-British. The communist government would send people to mingle within minority communities, such as Somalis and spy on us. The government also made it difficult for minorities to obtain work. They would confiscate people's houses as well.

10. Since I had previously held a CUKC passport, am of Somali ethnicity and also worked for the British, this made me fearful for my life and freedom. Because of this general hostility towards anyone believed to support the British, I needed to leave the country quickly.

11. I would like to add that if it had been straightforward to obtain another CUKC passport, I would have done this and hidden this fact and then left quickly but as I describe above at paragraph 7, it was generally known that the British would not issue a CUKC passport and I could not risk applying and having to argue for my right.

12. In order to apply for my first Somali passport, I went to the Somali Embassy in Aden and I asked them for a passport. I spoke to them in Somali and gave them details of my tribe, ie Haber Younis. They issued a passport on that basis and then I was able to leave Aden and travel onwards from Aden as described in paragraph 5 above.

13. I started working in Abu Dhabi and I got married on 15 October 1977. My wife and I had our first child, Ahmed, born on 17 March 1979.1 went on to have another 10 children. They were all born in Abu Dhabi and their details are as follows:

14. Ahmed: 17 March 1979; Afrah: 24 January 1980; Anisa: 16 January 1982; Zainab: 22 June 1983;

Mohamed: 5 July 1984; Muna: 14 August 1987; Hamza: 5 September 1988; Ibrahim: 2 November 1992; Ismail: 2 November 1992; Ali: 26 October 1995; Asia: 13 December 1996.

15 In around 1986, I gave the matter of my nationality some more thought and applied for a British passport on a further two or three occasions before applying in 2009 or 2010. I felt that I should be able to get a British passport and also thought my children may then be entitled to the same passport as me. I went to the British Embassy in Abu Dhabi and showed someone at reception my birth certificate and said I wanted to apply for a British passport. They told me they could not help me as they said I had no case to apply for or be issued with a British passport.

16. I then tried another two times. I think this was in the mid- 1990s as my youngest child had not been born at that point.

17. On the first of these attempts, I went to the British Embassy in Abu Dhabi but they simply refused to allow me to apply and told me I had no right to a British passport. As I recall this was the receptionist who refused to allow me to apply.

18. Shortly after that I decided to try again by going to the British Consulate in Dubai. I gave them my Colony of Aden birth certificate and Seaman book and they took these and said they would consult with the authorities in the UK. They kept my documents for a week. They called me and then I returned to the Consulate and they told me that my application was rejected. They gave me no evidence that the application had been refused.

19. I was sceptical that they had even contacted the British authorities and so I decided to apply for a visa to travel to the UK as a visitor and then apply for a British Overseas passport from there. I thought I would stand a better chance of my application being considered properly if I went to the UK. However, my application for a visit visa was refused. This was in 2002, see my passport A0005284, page 46.

20. I applied again in about 2010 and was finally issued with a BOC passport on 25 April 2012.

21. Had I been issued with a CUKC in the 1970s and then continued to hold British passports as was my entitlement, I would have been able to register my children and my wife as BOCs. This opportunity was denied me owing to the failure of the British authorities to recognise Somalis born in Aden as CUKCs after independence of Aden from the UK.

SIGNED:

DATE:

STATEMENT ABDULLA HASSAN YOUSUF

I, Abdulla Hassan Yousuf, resident at Villa 387, Street 131, Al Muwaiji, Al Ain, the United Arab Emirates ('UAE'), make this statement believing it to be correct and true.

1. My name is Abdulla Hassan Yousuf and I was born in Aden, Yemen on 12 December 1946. I hold British Overseas citizen passport No. 511220977, Issued on 26 November 2012.

1. Both my parents were born in Hargeisa, British Somaliland, my mum, Hawa Hassan in around 1923 and my dad, Hassan Yousuf, in about 1902.

2. I left Aden in 1968. I did not hold a passport until I was leaving Aden in 1968.1 finished school in 1965. I wanted to continue with my studies and so I went to Mogadishu to study a degree in Civil Engineering.

3. When I was ready to leave Aden I was aware that I was a British national. However, after Aden independence, Somalis who were born in Aden approached the British Embassy to obtain a British Passport. They were advised to claim Yemani nationality and this lead to undermine my confident to take British passport.

4. When I approached the Yemeni authorities, they told me that only those of Arab origin could be issued with Yemeni nationality and that since Somalia was not in Arab League as a Somali, I was not an Arab.

5. I was in a dilemma as I needed to travel for study and the general word in the Somali community was that we would have no rights to a British passport and the stated above, I was refused nationality of the People's Republic of South Yemen. My only option in order to travel was to obtain a Somali passport.

6. In order to obtain the passport, I approached the Somali Embassy and showed them my birth certificate showing that my mother and father were of Somali origin and so they issued me with a passport.

7. I lived in Mogadishu from 1968 until around 1972. I moved to the Trucial states, now the UAE and lived in Ras Al Khaimeh working with a British company called Sir Alexander Gibb Construction and we worked on the construction of Mina Zayed in Abu Dhabi

8 My Brother Ahmed Hassan Yousef, born in around 1955 applied for CUKC passport. He went to
Yemen and went to the British Embassy in Sana'a. They told him that he should obtain Yemeni nationality. They also informed him in a letter from the British Embassy in Aden dated 29 April 1975 advising stating that he did not lose his claim to CUKC but should apply for Yemeni nationality and refused to issue him with a CUKC passport.

9 I first tried to obtain a British passport on August 2006. I approached the British Consulate in Dubai and the woman at the Consulate told me that I lost my British nationality and was Yemeni. She advised me to claim Yemeni nationality. She took the application including my birth certificate, school certificates and I think some other documents. My sister, Fatima, applied at the same time as me. After a week, we were asked to return to the Consulate and she returned the fee, the form and told me the application was refused. She also gave me a refusal letter. See Appendix A.

10 I tried again on 22/07/2010 and I was issued with BOC passport 511220977.

11 If I had thought I would have been issued with a BOC passport (or CUKC) in the 1968s onwards I would have applied. However, the Somalis I knew who had tried to apply were refused and so the general feeling in the community was that we must have lost British nationality. This was my reason for not trying sooner. I tried in 2006 as we heard rumours that some people had been issued with a BOC passport so I tried and applied that first time. The second time I applied was because I heard that more Somalis were being issued with the passport.

12 If there had been proper information and co-operation from the British authorities in the late 1960s and the 1970s I would have been able to get a CUKC passport sooner and then a BOC passport. I would have been able to register my children as BOCs. This opportunity was denied me owing to the failure of the British authorities to recognise Somalis born in Aden as CUKCs after independence of Aden from the UK.

SIGNED:

DATE:

MAHA MOHAMED ISMAIL

STATEMENT MOHAMED ISMAIL HUSSEIN

I, Mohamed Ismail Hussain, resident at Flat 405, Naseem Tower, Al Zahiya Street, Abu Dhabi, the United Arab Emirates ('UAE'), make this statement believing it to be correct and true.

1. My name is Mohamed Ismail Hussein, I was born in Yemen, Aden on 1 January 1948 and I am currently living in the United Arab Emirates. I am Maha's father. I don't hold a British Overseas Citizen Passport as my applications have been refused on at least three occasions and I am in the process of challenging the most recent refusal.

2. My father's name was Ismail Hussein Yousef, place of Birth is in Somalia, Erigavo in 1927. My mother's name was Mariam Ismail Hussein, place of birth is in Somalia, Erigavo, 1928.

3. I obtained my first ever passport in 1972 in order to leave Aden to travel to the Gulf. I used this document to travel to the UAE and lost it when I moved from Sharjah to Abu Dhabi in around 2002. This was a Somali passport. I went to the Somali Embassy in Aden and they issued me with a passport after checking by birth certificate.

4. I did not try to apply for a British passport when I was leaving Aden as I would have needed to obtain a letter of no Yemen nationality from the Yemeni authorities and the government of South Yemen stopped issuing these. A few people I am aware of through talk in the Somali community were issued with the letters but then the authorities of the People's Republic of South Yemen stopped issuing these. Because of this and the general talk within the community I did not apply for a CUKC as I had heard enough to know it would be refused.

5. I think the authorities stopped issuing the letters as they found out that a few people had been issued with the British passports and owing to the manner in which Aden obtained independence and the tensions between the People's Republic of South Yemen and the British they did not want people born in Aden to be issued with British passports and to continue to live in Yemen.

6. In addition, the people who were given the letters were told that they would not be issued with a residence permit if they got a British passport, so they left. I didn't know of many people who managed to obtain British passports after independence and the general position was that application for a CUKC passport would be refused by the British Embassy.

7. After I moved to the UAE, I became aware of a man from Aden, Saeed Al Hashimi, who had tried to obtain a letter confirming he was not Yemeni but they refused so he could not get the CUKC passport. I knew him through work as we were both employed by ADMA-OPCO.

8. I did not apply for a British passport until 2012 but I considered applying in 1994 when my wife applied. She went to the British Consulate in Dubai but they refused the application because they said that her name was different on her Somali passport and birth certificate. The passport did not include her great-grandfather's name, Jama. After she was refused, I didn't apply. This was also partly because my passports give an incorrect place of birth so I let her apply first.

[1] See attached Annex A which sets out in detail the law relevant to non-Arabs born in the Colony of Aden and why they retained their CUKC status and so became British Overseas citizens

[2]See Consent order in the case of R(on the application of Saeed Hassan Botan)& others v SSHD, 2010 in which the UK accepted that Somalis born in the Colony of Aden prior to 14 August 1968 retained their British national status so being British Overseas citizens

[3] See the judgment of HHJ Lang in R (on the application of Mohamed Abdullahi Omar Nooh and others) v SSHD [2018] EWHC 1572 (Admin)

[4]British Nationality Act 1981 s27(Registration Minors)and s9 (right to registration by virtue of father’s citizenship)