England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th April 2005

1. MR JUSTICE SULLIVAN: This is an application for judicial review of a decision contained in a letter dated 29th July 2004 from the British Deputy High Commission in Mumbai. The letter responded to an application made on 17th July 2004 by the claimant for a British passport. So far as relevant the letter said this:

"I enclose a copy of my letter dated 27th May [to the claimant] which is self-explanatory. For your information we are at present processing first British passport applications received in November 2003.

Mr Vekariya has sent us the wrong fees and therefore his draft will be shortly returned. He must not send us a fresh draft until we instruct him to do so. His application will then join the queue waiting to be processed and will be picked up in its turn. The officer will then decide whether there are better and more documents for the application to be reinstated for a review. We will then be in a position to take the case further from there."

The letter dated 27th May to the claimant was a response to an earlier letter which had requested the High Commission to reinstate the claimant's application for a passport for review. The earlier letter from the Deputy High Commission had said that a fresh application would have to be submitted and had pointed out that, in the High Commission's view at least, there was a lack of documentation to support the earlier application. That letter concluded:

"We have gone over the same grounds in considerable detail in the past with you and your advocate. I am sorry to say that I see no purpose in repeating ourselves once again but if you are genuinely interested in a review can only suggest that you do as requested."

2. The claim form in these proceedings stated that the claimant made his application for a British passport on or about 28th February 2000 and that it had been acknowledged by the defendant on 6th March 2000. Thereafter, the claim form contended that the claimant had dealt with each and every query that had been raised by the defendant.
3. The contention was that full information having been provided, the delay in dealing with the claimant's application was so disproportionate as to be unlawful, and a comparison was made with the practice which was said to be adopted by the United Kingdom Passport Office of dealing with postal applications for British passports within three weeks. On its face, a delay between November 2003 and July 2004 might be excessive, and certainly a delay from 2000 to 2004 would be excessive, so some explanation was required.
4. Unfortunately, the papers were not properly served on the Treasury Solicitor. Instead they were sent to the Deputy High Commission in Mumbai where their significance was not appreciated. The end result was that no acknowledgement of service and summary grounds were filed. In the absence of any explanation, it is therefore unsurprising that Mitting J granted permission to apply for judicial review of the delay in determining the claimant's application for a passport.
5. In due course papers were served on the Treasury Solicitor. Detailed grounds of resistance, combined with a skeleton argument on behalf of the defendant supported by a witness statement of Glyn Bottrell, the Vice Consul at the British Deputy High Commission, were filed and served. Mr Bottrell explains the background to the matter in these terms:

"First passport applications in India are difficult and complex. We need to establish an applicant's claim to British nationality and their identity before a passport can be issued. This is complicated by a regrettably high level of fraud, frequent lack of documents dating back to crucial periods 30 or more years ago and local cultural norms relating to registration of significant events such as births, death and marriages. Extensive documentation is required to establish both claim and identity. Once sufficient documentation is received the applicant may be interviewed with a close blood relative in order to support the documentary evidence. If certain documents are unavailable, but an applicant has made every effort to meet our requirements we may offer an interview anyway, provided the documentation is of a reasonable standard. Still more documentation may be requested after interview, or the case could be recommended for a field trip or DNA test. Also, we often have to ask local authorities to verify documents, which can take a considerable length of time. We will issue a passport at whatever point in this process we are satisfied, and can lapse or refuse an application at any point where we have given a reasonable amount of time for an applicant to meet our requirements, or evidence suggests an applicant is not eligible for passport facilities. There is no guarantee that an interview will be offered, or that an interview, field trip or DNA test will be conclusive. All the available evidence is assessed as a whole.

Due to the volume of application received, the complexity of cases, and the amount of correspondence they create, we are currently taking approximately 12 months to first assess a case after receipt, then there is a further three month waiting period for interview once the documents are in order. Both these time periods are subject to change. Therefore, in a case where the evidence is strong an application will currently take approximately 12 months from receipt of the application to issuing a passport. Where an interview is required it would be a minimum of 15 months. However, in most cases additional evidence will be required extending these times. In the case of the claimant's application the timing starts from when the latest application was lodged in July 2004."

6. Pausing there and considering the matter generally rather than by reference to the particular facts in the claimant's case, it can be seen that there is a perfectly sensible explanation for what might appear to be a lengthy process. There is no challenge from the claimant to the difficulties identified by Mr Bottrell. Moreover, they demonstrate that the circumstances in which the Foreign and Commonwealth Office has to operate in India are wholly different from the circumstances in which the United Kingdom passport service, an executive agency of the Home Office, operates in this country. In this country there is a more reliable and comprehensive system of public record keeping. That enables the United Kingdom Passport Service to adopt a guideline period of three weeks, but it is important to compare like with like and to bear in mind that the guideline period is just that. It is a guideline. It is subject to a caveat:

"The onus is on the customer to provide a properly completed application form and the required supporting documents to confirm identity and eligibility. If the information provided is incomplete or in our view not sufficient to confirm eligibility we may not be able to issue a passport in the expected time."

It may well be the case that, given the availability and reliability of records in the United Kingdom, most customers will be able to provide a properly completed application form. Where they are not in that position, then a longer period of time will be needed in order to process their application.

7. Turning from the position generally to the facts relating to the claimant's application for a passport, Mr Bottrell has provided a detailed chronology. It is true that the claimant's first application was made in 2000. Mr Bottrell's chronology begins with the receipt of the first application from the claimant for a United Kingdom passport on 21st June 2000. The Deputy High Commission was not satisfied with the adequacy of the documentary evidence sent in support, and after correspondence in which the Deputy High Commission sought further information and that information was not supplied, the chronology states that on 3rd May 2001:

"As the file had been open for some 10-months and essential documents had not been presented, and were unlikely to be soon, we lapsed the application. We returned all documents and fees to the claimant and explained that he was free to re-apply when he had all the necessary documents."

A second application was received on 5th December 2001. Much the same process occurred again. The Deputy High Commission still considered that certain key documents had not been supplied, and so on 29th March 2002 it lapsed the application, again due to lack of critical documents, and returned all documents and fees once more.

8. Pausing there in the chronology, although Mr Rahman on behalf of the claimant criticised those earlier decisions to lapse the first and the second applications, he accepted that it was far too late to challenge the lawfulness of those decisions in these judicial review proceedings. Nevertheless, he expressed a general concern on behalf of the claimant that the adoption of a lapsing procedure was not authorised and that it enabled the defendant to avoid taking a decision, thus leaving persons such as the claimant in limbo. In essence, he submitted that rather than lapse applications they should be refused. I can see nothing unlawful in the administrative procedure of lapsing applications, where insufficient information has been provided, as opposed to refusing applications where the information that has been provided indicates that a decision should be made against the claimant.
9. From the claimant's point of view, a decision to lapse his or her application may be preferable to a decision to refuse it. The applicant will then have an opportunity to provide further information against a neutral past history, rather than have to overcome the hurdle of having had an earlier application refused. Mr Rahman submitted that what the claimant really wants is a decision one way or the other so that the decision can then be challenged. If that is what the claimant wants, then there is no practical difference between a decision to lapse his application on the basis that insufficient information had been provided, as opposed to a decision to refuse his application on that ground.
10. There is no appeal process in respect of a decision to refuse or to lapse an application for a British passport. A claimant who is aggrieved by such a decision has the ability to challenge the lawfulness of the decision by way of proceedings for judicial review. If, as the claimant contends, he has provided sufficient documentary evidence to establish his claim, so that any reasonable official would grant him a passport, then it matters not whether the official whose decision is under challenge has taken a decision to lapse or to refuse the application. Since there is no appeal on the merits against a decision to lapse or refuse an application for a passport, the threshold to be crossed by an applicant for judicial review is a relatively high one; that is to say, that any reasonable official, properly directing him or herself, would have accepted that sufficient information had been provided in order to establish the claim. As I say, against this procedural background it can make no practical difference from the claimant's point of view whether the decision is to lapse or to refuse, if the decision is taken on the grounds of an insufficiency of evidence.
11. That leads me on to the manner in which the third application, which was received on 17th July 2004, was dealt with. Mr Bottrell explains:

"We have sought to handle the claimant's applications fairly throughout and consistently with our treatment of other applications. We give all applicants plenty of time and guidance to produce the required documents. It is only after we have made no progress in receiving necessary documents, despite several requests, that we will lapse an application. If further documents are received in a matter of weeks after lapsing, we will try to look at the application more quickly. However, if a new application and documentation comes in some months after the earlier application has been lapsed it will go to the back of the queue. Having failed to provide the necessary evidence despite being given sufficient opportunity to do so, there is no reason why such an application should be picked up more quickly on a second or third attempt. This would be unfair to others who may have put in a complete application from the outset. This practice has been applied to the present claimant.

As is evident from the chronology, this has been a difficult and complex case due to the fact that, despite substantial documentation being provided, little of this has gone directly to establishing when the claimant was born and his parent's marital status at that time. There is a considerable amount of action and documentation still required in respect of the present application. For example, an interview would be needed with the deponent to the statutory declaration relating to the parents' marriage. If the deponent is too elderly and therefore unable to travel to our offices for interview, documentary evidence is required to support the statutory declaration. The statutory declaration and any supporting documentation would need to be referred to London. The claimant's birth certificate and school leaving certificates still need to be verified by the Indian authorities. (While they were sent for verification in May 2004, it is not unusual for such checks to take anything from three months, at the least, to well over a year)."

In my judgment that is an adequate explanation of the inevitable delays in the circumstances that are referred to in the letter of 29th July 2004. The claimant has to prove not merely his own identity but also the fact of his parents' marriage. In the absence of a marriage certificate a statutory declaration relating to the marriage was sought. For the reasons given by Mr Bottrell, the Deputy High Commission wishes to interview the deponent of that statutory declaration. These are all proper inquiries, and the need to make those inquiries is not obviated by the documents to which Mr Rahman referred; that is to say, the document registering the claimant's father as a citizen of the United Kingdom and Colonies in Kenya. Nor are they resolved by the claimant's passport referring to his parents, nor by the death certificates of his father and mother. Given the basis on which the claimant applies for his passport, the defendant is entitled to seek the information mentioned in Mr Bottrell's witness statement.

12. Standing back for a moment and looking at the position overall, it must be remembered that, in order to succeed on this claim for judicial review, the claimant would have to establish, not merely that there had been some delay in dealing with his most recent application, but that the delay had been so extreme and unjustified as to be unlawful. This court is not concerned with delay which could merely be described as maladministration, but only with delay that can fairly be described as unlawful. For the reasons that I have given I am not satisfied, in the light of the explanation given by Mr Bottrell, that the delays can even be described as maladministration. Much less am I satisfied that they can be said to be unlawful. For these reasons this application for judicial review must be refused.
13. I would add this. If the claimant wants a final decision, then whether the Deputy High Commission's decision is to lapse or to refuse his application is of no moment. If there is any error of law -- I emphasize any error of law -- in the decision to lapse or to refuse the claimant's application on the basis that inadequate information has been supplied, then the remedy is a prompt application for judicial review. Thus the claimant does have an opportunity to bring the matter to a head.
14. MR EICKE: Apart from the order that the application be dismissed there is no further application.