Monday, August 31, 2009

Damar Thapa is recognised as British - 12 years late

Damar Thapa attended his British citizenship ceremony on August 19, 2009. The ceremony was attended by Tameem Ebrahim who was visiting Hong Kong. This ended a twelve year effort to have his status as a British national recognized by authorities.

Damar became a citizen of the United Kingdom and Colonies in 1963 by virtue of birth in Hong Kong. In 1997, prior to Hong Kong’s handover to China, he applied for a British National (Overseas) passport which was refused by British authorities on the grounds that they were “not satisfied that there are special circumstances which justify approval of this request”. He was not given any instructions on how to appeal the decision of the British Trade Commission.

In 2006, he was put in touch with Tameem and me by an Editor of the South China Morning Post after he wrote a letter to the paper complaining about the difficulties he was facing exercising his rights. After reviewing his circumstances, we advised him that he had automatically become a British Overseas citizen on the date of the handover to China and that he had entitlement to full British citizenship under the British Nationality (Hong Kong) Act 1997.

This started a further two-and-a-half year battle with the Home Office to have his claim to British citizenship recognized. He prepared a properly filled out application form which also stated the reasons why he was solely British and included evidence that he would have lost his Nepalese citizenship in 1984 (copies of diplomatic correspondence between the British and Nepalese authorities).

When Damar went to the Ethnic Minorities Citizenship Unit of the British Consulate-General in Hong Kong to apply in early 2007, staff advised him that he was “not British” and therefore he was not eligible and should not apply. Consular staff refused to take his application unless he would sign a written declaration stating that he was “not British”. As we had suspected that he would be turned away, we had briefed him to insist on applying anyway without making any additional statements other than what was stated on the application form and paying the fees; which he did.

I subsequently wrote to the Minister to complain. After an internal investigation by the Foreign & Commonwealth Office, a British Consul wrote to Damar to apologize unreservedly for the unacceptable way he was treated throughout the application process.

But that was not the end of the matter. The application was now in the hands of the Home Office, who promptly refused it on the grounds that they weren’t satisfied that he was not Nepalese. On the relevant dates, Nepal had a total prohibition on dual nationality which is recognized in the Home Office Nationality Instructions.

Nevertheless, Damar’s application had been refused and he was told that “There is no right of appeal against this decision.” Damar threatened a judicial review: in granting his application for permission the Honourable Mr Justice Collins stated “it is clear that this claim is arguable”. Home Office files that we subsequently saw state very clearly that, at the time they made the refusal decision, Home Office officials believed that Damar “lost Nepalese citizenship in 1984” but that his application was still refused simply because he did not have papers to prove his automatic loss of Nepalese citizenship. Despite receiving permission, Damar decided against proceeding with the judicial review and chose to proceed with administrative means to appeal the decision.

With great difficulty, Damar obtained written documentation from the village office where his father resides in Nepal confirming that he was not Nepalese because he was British. It is bewildering that the Home Office prefers to rely on the views of a village official in rural Nepal rather than accepting their own properly considered view of this matter. Home Office officials have even visited Kathmandu to confirm the provisions of Nepalese citizenship law, but the explanations given by the Nepalese Ministry of Home Affairs are apparently insufficient. Based on a letter issued by the Village of Tanahun the Home Office was now able to accept something that was plainly obvious to them in the first place. Damar was now recognized as British Overseas citizen and so was his entitlement to be a British citizen.

The hoops that applicants that Damar like are made to jump through to show that they are British is extraordinary. Authorities are not playing fair. It can be an incredibly frustrating process for applicants to deal with dogmatic officials who insist on having hard-to-provide evidence for something that is obvious and they plainly already know.

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