Court of Appeal rejects Al Hashimi's human rights challenge to British Overseas Citizenship refusal on jurisdiction grounds

The Court of Appeal has dismissed a challenge to the Home Secretary's refusal to register a Somali national as a British Overseas Citizen, holding that she was not within the United Kingdom's jurisdiction for the purposes of Article 1 of the European Convention on Human Rights and so could not pursue a discrimination claim under the Human Rights Act 1998.

In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, Lord Justice Newey, with whom Lady Justice Andrews and Lord Justice Moylan agreed, considered an appeal brought by Fatima Al Hashimi, who was born in the United Arab Emirates and has lived there throughout her life. Her mother, born in Aden before independence, had become a British Overseas Citizen under the British Nationality Act 1981, a status conferred on those who held citizenship of the United Kingdom and Colonies but did not qualify for full British citizenship or British Dependent Territories citizenship. Ms Al Hashimi's application to be registered as a British Overseas Citizen in her own right failed because, under section 4C of the 1981 Act as inserted in 2002, she could not satisfy the requirement that she would have held the right of abode had citizenship been transmissible through her mother in the same way as through a father, a historic restriction that later legislative reform addressed only for British Dependent Territories citizenship, leaving her unaffected.

Ms Al Hashimi argued that the underlying statutory provisions discriminated against her on the ground of her mother's sex, contrary to Article 14 of the Convention read with Article 8, and sought a declaration of incompatibility. Mrs Justice Lang had dismissed the claim at first instance, finding that Ms Al Hashimi fell outside the UK's jurisdiction under Article 1 of the Convention, since she had never resided in the UK, had no private or family life connection to it, and would gain no right of abode even if successful.

On appeal, counsel for Ms Al Hashimi argued that jurisdiction should be recognised by analogy with the extraterritorial exercise of jurisdiction long accepted in relation to diplomatic and consular officials acting on behalf of a state's nationals abroad, and that Convention rights could be "divided and tailored", as the European Court of Human Rights had done in HF v France in finding jurisdiction over a right to enter under Protocol 4 while rejecting it under Article 3.

Lord Justice Newey rejected the analogy. Reviewing the Strasbourg case law, including Banković, MN v Belgium, Agostinho v Portugal and HF v France, he held that extraterritorial jurisdiction under Article 1 depends on the state exercising effective control over a person or territory, not merely on a decision affecting someone's interests abroad, and that nationality alone cannot constitute an autonomous basis of jurisdiction. In refusing Ms Al Hashimi's application, the Secretary of State had not purported to exercise any authority or control over her at all. The reasoning in HF v France was distinguished as resting on the particular nature of the right to enter one's state of nationality, which would otherwise be rendered ineffective, a rationale with no equivalent application to Article 14.

Lady Justice Andrews added that, since Ms Al Hashimi had never established any private life within the UK, no jurisdictional link could arise under Article 8, and it followed that no claim under Article 14 read with Article 8 could succeed either. The appeal was dismissed.