Al Hashimi v Secretary of State for the Home Department: British Overseas Citizenship claim fails on jurisdictional grounds

The High Court has dismissed a judicial review brought by Fatima Omar Ali Ahmed Al Hashimi, who challenged the Secretary of State's refusal to register her as a British Overseas Citizen (BOC). Mrs Justice Lang DBE granted an extension of time and permission on the human rights ground but ultimately found no jurisdiction under the European Convention on Human Rights for a claimant residing outside the United Kingdom.

Ms Al Hashimi was born in the United Arab Emirates on 30 December 1981 and remains there. A Somali national who has never visited Somalia, her connection to the UK derived from her mother, Zahra Yousuf Ahmed Al Hashimi, who was born in the Colony of Aden on 1 April 1958 and held BOC status by birth until her death in January 2024.

The claim centred on historical gender discrimination in British nationality law. Section 5 of the British Nationality Act 1948 permitted citizenship by descent only through the paternal line. Had mothers been able to transmit citizenship equally, Ms Al Hashimi would have become a Citizen of the United Kingdom and Colonies by descent and subsequently a BOC when the British Nationality Act 1981 took effect on 1 January 1983.

The Secretary of State refused the application on 16 February 2022 and maintained that position following reconsideration on 5 June 2024. The refusal rested on Ms Al Hashimi's inability to satisfy section 4C BNA 1981: she would not have had the right of abode in the UK immediately before 1 January 1983, even had she acquired CUKC status through her mother.

Whilst subsequent amendments removed discrimination for those applying for registration as British Citizens (section 4C) and British Overseas Territories Citizens (section 17A), no equivalent provision exists for BOC mothers.

Extension of time

The judicial review claim was filed on 17 January 2025, seven months after the June 2024 decision. Mrs Justice Lang granted an extension, finding no fault on the claimant's part. Ms Al Hashimi required legally aided representation but her previous solicitors lacked a legal aid contract. Obtaining specialist legal aid representation proved difficult until September 2024, with substantive funding only granted on 23 December 2024. The court found no prejudice to the Defendant and a public interest in determining the issues.

Article 14 ECHR claim

The primary ground contended that the refusal constituted unlawful discrimination under Article 14 ECHR, read with Article 8. The critical issue was whether the court had jurisdiction under the HRA 1998 and ECHR.

Relying on Secretary of State for the Home Department v Abbas and R3 v Secretary of State for the Home Department, the Defendant submitted that Article 1 ECHR's jurisdictional requirement was not satisfied. The court reviewed principles from Al-Skeini v UK, emphasising that jurisdiction under Article 1 is primarily territorial and extends extraterritorially only in exceptional circumstances.

Mrs Justice Lang found the jurisdictional threshold was not met. Ms Al Hashimi had always resided outside the United Kingdom, had no family or private life in the UK, and would not secure right of abode even if granted BOC status. The impact of the decision on her private life—employment, visas, travel—occurred and would always occur entirely outside the UK.

Despite acknowledging the UK Government's inconsistent position in submissions to the CEDAW Committee suggesting domestic remedies should be pursued, the court could not disapply established law on jurisdiction. Permission was granted on Ground 1 as arguable, but the substantive claim was dismissed.

The claimant's second ground sought a declaration that the statutory scheme breached the Convention on the Elimination of All Forms of Discrimination Against Women. Mrs Justice Lang refused permission, finding this ground unarguable as CEDAW has not been incorporated into domestic law and creates no enforceable rights in domestic courts.

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