COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Goldring
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE RICHARDS
| The Queen (on the application of NA (Iraq))
|- and -
|Secretary of State for Foreign and Commonwealth Affairs
Secretary of State for the Home Department
Entry Clearance Officer, Amman
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Elisabeth Laing (instructed by The Treasury Solicitor) for the Respondents
Hearing dates : 22 June 2007
Crown Copyright ©
Lord Justice Richards :
"Entry clearance applications to the UK for settlement as a fiancé are considered under paragraph 290 of the UK Immigration Rules. Under the Rules it is also a requirement that applicants present valid national travel documents or passports, or a document which satisfactorily confirms the holder's identity and nationality.
With effect from 1 September 2006 Her Majesty's Government no longer accepts the S series Iraqi passport for the purpose of making UK entry clearance applications; other series of Iraqi passport, including the latest G series, are acceptable if valid. This means that the S series passport is no longer acceptable for the purposes of confirming identity and nationality. With effect from 1 November 2006 the S series passport will no longer be valid for travel to the UK, even in possession of a UK visa issued before 1 September.
In this instance we will not be able to accept any application from the person named above unless he has an acceptable series Iraqi passport; we have no local discretion in this matter at all. His situation is no different from any other Iraqi national wanting to travel to the UK and to whom the same advice is applicable. We understand the issuing of the new G series Iraqi passport is centralised in Baghdad. Any queries concerning the issuing process of Iraqi passports needs to be taken up with the Iraqi passport issuing authorities."
"In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules … the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(3) failure by the person seeking entry to the United Kingdom to produce to the immigration officer a valid national passport or other document satisfactorily establishing his identity and nationality;
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
(10) production by the person seeking leave to enter the United Kingdom of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty's Government as a state or is not dealt with as a government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice …."
Home Office internal guidance on Iraqi passports
"The IIG are working towards being able to issue a fully ICAO-compliant, Iraqi passport. Until that is available, a new temporary passport, the S-series, has been introduced by the IIG. S-series passports have a dark green cover and can be distinguished from earlier series of Iraqi passports by the letter S that appears before the passport number.
The UK Government has decided that the S-series passport will be acceptable for purposes of establishing identity and nationality until 31 December 2004. During this period, visas for travel to the UK ... must be endorsed on an accompanying GV3 'Declaration of Identity for Visa Purposes' form. The GV3 form will also be useable in conjunction with the new, more secure, passport once this has been issued."
"PHASING OUT ACCEPTABILITY OF IRAQI S-SERIES FROM 1 SEPTEMBER 2006
The Iraqi Government started issuing a new machine-readable G-series passport on 11 April 06. The G-series is significantly more secure than the S-series passport and is fully acceptable as evidence of identity and nationality for the purpose of travel to the United Kingdom. G-series passports are not yet widely available and are not yet being issued by Iraqi missions overseas although applications will be accepted and passed to Baghdad. In view of this it has been decided to phase out acceptance of the S-series passport as follows:
From 1 September 06:
• no further visas to be issued on Uniform Format Forms (UFFs) to holders of S-series passports
From 1 November 06:
• S-series passports (accompanied by pre-1 September UFFs) no longer accepted for travel to the UK
• valid visas or leave already endorsed on a UFF or other document must be accompanied by a G-series passport
REVISED GUIDANCE FOR UKVISAS, UKIS and IND CASEWORK
For Entry Clearance Posts this means that the current arrangements for issuing visas continue until 31 August. From 1 September, no visas are to be issued to holders of S-series.
Until 31 August visas issued to holders of S-series for travel to the UK must be endorsed on an accompanying EU Uniform Format Form (UFF - the replacement for the GV3 'Declaration of Identity for Visa Purposes'). Visas issued on a UFF before 1 September will be usable in conjunction with a new G-series passport after 1 November.
Entry Clearance Posts should continue to check carefully documents submitted by holders of S-series passports and may make any additional checks to verify identity deemed appropriate.
"4. … It is not sufficient to produce 'a valid national passport' …. It must be a valid national passport 'satisfactorily establishing his identity and nationality'. A valid national passport may fail to satisfactorily establish a person's identity and nationality for a number of different reasons, including where it has been altered or is being used by an impostor or has been obtained through a fraudulent or deficient process. A 'valid national passport' may also fail to satisfactorily establish a person's identity and nationality where it lacks standard security features and is of such poor quality that it becomes difficult - or even impossible - to distinguish an officially issued document from a counterfeit or altered document.
5. The S-series passport was introduced by the interim Iraqi Government in 2004 as a temporary passport to allow Iraqi citizens to travel pending the introduction of a more secure replacement. Subsequently, the National Document Fraud Unit's analysis of sample specimens confirmed that the S-series was of poor quality and did not comply with minimum standards expected of an international travel document. The absence of security features such as a proprietary water-mark, the use of commonly available materials and the absence of a high security printing process make the S-series passport particularly vulnerable to counterfeiting. The fact that the fields in the document may be filled in manually and the ease with which photographs can be substituted due to the absence of anti-tampering features in the laminate sealing the biodata page are also of major concern. The S-series passport is so lacking in sophistication that it is not possible to be sure, even in the case of an officially issued passport, that it is genuine.
6. In spite of the serious reservations about the S-series, in view of the United Kingdom's central role in Iraq and the need for Iraqi nationals (e.g. businessmen, engineers, officials etc.) to be able to travel overseas in order to assist with reconstruction of the country's infrastructure, the decision was taken by Immigration Minister Des Brown on 15 September 2004 ... to give the S-series passport limited recognition until 31 December 2004. This recognition was reviewed and extended every six months, ultimately up until 30 June 2006, due to delays in the launch of the replacement passport.
7. During this period, because of the fact that the S-series passport had only limited recognition for the purposes of travel to the United Kingdom, visas and endorsements of leave have not been placed in S-series passports, but on a separate document. S-series passports were not acceptable in their own right for travel to the United Kingdom or for the purposes of leave to enter.
8. On 11th April 2006, the Iraqi Government started to issue a new, machine-readable G-series passport. This is a significantly more secure document than the S-series passport and is fully acceptable for travel to the United Kingdom. On this basis, the decision was taken by the Immigration Minister (Liam Byrne) on 29 June 2006 to stop accepting the S-series passport as a valid document for travel to the United Kingdom on a phased basis. The decision was embodied in staff guidance issued on 30 June 2006 .... The UK Government ceased issuing new visas to applicants holding S-series passports on 1 September 2006 (and, from 1 November, the S-series ceased to be an acceptable travel document for travel to the UK, even where the holder had valid leave to remain in the UK).
10. … It is neither practical nor desirable to make exceptions to allow travel to the United Kingdom on S-series passports when it is known that they can readily be obtained on the black market in Iraq and Jordan. Information obtained by the Entry Clearance Officer in Amman from senior Jordanian officials at the Karameh border-crossing suggests that S-series passports are readily available at a number of adjacent outlets, in the identity of one's choice, for the equivalent of £10 or less. The Iraqi S-series passport therefore presents a significant risk to the United Kingdom's border controls.
11. For these reasons, no exceptions can be made to the position that S-series passports are no longer acceptable as evidence of nationality and identity for the purposes of travel to the United Kingdom …."
"It is accepted that the Iraqi Government is still issuing S-series passports and not withdrawing existing S-series passports during the current transition to the new G-series passport, for which there is a heavy demand."
Goldring J's conclusion
"(1) In general, in the light of the evidence, the S-series passports are wholly unreliable as a means of identifying the person and his nationality. The second defendant was entitled so to conclude. His decision in that regard was entirely rational.
(2) While in any given case it may not be impossible, it is extremely difficult for an ECO in the field reliably to ascertain whether a S-series passport presented to him is valid or not. In other words, it is extremely difficult for an ECO reliably to exercise any individual judgment under the rule when presented with a S-series passport.
(3) On any sensible reading of Rule 320(3), it permits the second defendant to give guidance to that effect to the ECO. It would be surprising were he not able to. In giving such guidance he is bound to reflect what the reality of the position is. If the claimant is right, on facts such as the present, the rule permits him to say to the ECO in the strongest possible terms that an S-series passport is in general not a means of identifying the person and his nationality. The ECO must nevertheless, although ill-equipped to do so, seek to establish the position in the case before him bearing that guidance in mind. Such an outcome could not have been the intention of the draftsman of what is a rule to help the ECO to administer the Act. In such circumstances, in my view, the rule does permit the second defendant to provide what amounts to operational guidance to the effect that a passport of a particular class is no longer acceptable.
(4) It would be too cumbersome and inflexible a procedure for the second defendant to have to lay before Parliament each such change. Provided the decision to change the guidance is rational, it may be taken and carried out by the second defendant in the way done here.
In short, for those reasons, it does not seem to me that judicial review lies."
Lord Justice Thomas :
Lord Justice Dyson :