England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2014

Mrs Justice Patterson:

1. This is a claim for judicial review of a decision on the part of the defendant to refuse the claimant's application for a replacement passport. The application for a passport was made on the 24^th December 2010. On the 30^th April 2012 the claimant was told by an officer on the part of the defendant that she should proceed with a judicial review.
2. Judicial review proceedings were lodged whereupon the defendant agreed to make a decision on the passport application. As a result, on 20^th November 2012, Mr Justice Collins refused permission on the basis that a decision would be made within 2 months of a consent order. In a letter dated 16^th January 2013 the defendant informed the claimant that a decision had been taken that the defendant was unable to issue the claimant with a passport until she was satisfied of the claimant's identity. The letter continued,

"It is of concern that you say that you returned to the UK in 1982. However, you have no social footprint in the UK until 2008, when you first attempted to obtain a National Insurance number."

3. A renewed application was made for permission to apply for judicial review. On the 2^nd October 2013 after an oral hearing Elizabeth Cooke sitting as a Deputy High Court Judge granted permission to apply.
4. Since then the defendant has filed detailed grounds of resistance to which the claimant has responded.
5. As a result it is common ground that there is now a sole issue which is - is the claimant who she asserts to be? The issue of the claimant's identity is agreed to be one of precedent fact for the court to resolve with the burden of proof being on the claimant to establish her identity on the balance of probabilities.
6. The claimant maintains that she has a legitimate expectation that she would be issued with a replacement passport. She does not pursue her claim by way of res judicata. The other matters set out in the original claim form are all subsumed within the central issue.

Factual Background

7. On the 28^th March 2008 the Department for Work and Pensions alerted the Identity and Passport Service to an unsuccessful attempt apparently on behalf of the claimant to obtain a National Insurance number.
8. On the 8^th March 2008 the claimant made her first application for a passport.
9. On the 17^th November 2008 the claimant was interviewed in connection with that application. The notes of the interview record that the claimant was very sketchy with her answers. She confirmed her date of birth and that she had three siblings. The notes record that the claimant was taken back to Nigeria as a child by her mother's friend. She was endorsed on the friend's passport. The claimant then attended school in Nigeria until she returned to the UK in 1992. She had a Nigerian passport but no visa as, at that time, no visa was required to enter the United Kingdom.
10. The claimant said in her interview that she had not worked since 1992 as her partner took care of her. She had a clothes and jewellery business and bought items on sale and then sent them on to Nigeria. She said that her mother and siblings were present in Lagos. She did not have a bank account and had never been issued with a British passport. The interview notes record that her ID was clearly still in doubt.
11. On the 28^th January 2009 the claimant was interviewed again in connection with her passport application. She attended with her mother, Victoria Olayeni. The notes record that the claimant and her mother were interviewed separately.
12. The notes record that the claimant appeared to be from a wealthy background: her father was a barrister with his own chambers in Lagos and her mother was a civil servant and worked for the Police Commissioner. Although the claimant struggled to confirm her qualifications or the whereabouts of her exam certificates she was noted to come across as well educated.
13. In 1982 she said that she had got into a relationship which her parents did not approve of and so fled to London with her partner on an old Nigerian passport which she no longer had. She named her partner as Chizoba Adigwe. The couple had separated in 1992. Since then the claimant had had similar relationships in which her partner had provided for her.
14. She had applied for a National Insurance number because she had been offered a job and her employers needed it.
15. The claimant's mother was then interviewed separate from the claimant and without any opportunity to converse with her daughter about her interview. She confirmed her daughter's details and said that her daughter had progressed well at school. She said that her daughter had got into a relationship which neither her nor her husband had approved of and had left for London.
16. She had had little contact with her daughter over the years but claimed to send her money on occasions. The interviewer formed the view that mother and daughter were linked and that when they were brought into the room together they were mother and daughter. The claimant showed her mother respect and her mother spoke with authority. Since speaking to both of them the interviewer was happy that the claimant was who she said she was.
17. It was noted that the claimant was reluctant to explain what she had done for the past 20 years. The interviewer had noticed that the name that the claimant gave for her partner was a female name which would indicate why the relationship was not approved in Nigeria where same-sex relationships are illegal. It would also explain why she was reluctant to elaborate upon her private life.
18. The interview notes conclude,

"Further and more extensive evidence of ID submitted. ID no longer in doubt."

19. On the 11^th February 2009 the claimant was issued with a passport.
20. On the 8^th October 2009 the claimant attended for interview at the deputy British High Commission in Lagos to obtain passport facilities for two children she claimed as her own, namely, Kingdavid Oluwaseun Olayeni born on the 18^th March 2006 in Lagos and Kingsolomon Oluwatumisen Olayeni. When asked about previous passport arrangements for her children the claimant said it was her partner who made all of the arrangements. The father's name was given as Mark Adjei. In support of the application the claimant submitted a Nigerian passport in the name of Kingdavid and a Nigerian registration of birth and a Nigerian certificate of birth showing the names of Mark Adeji and the claimant. The same parentage was claimed for Kingsolomon. In support of the applications for the children was a deed poll for a change of name showing the abandonment of the full name of Princess Temitope Adeji to the name of Mobolanle Olayeni. It also states that the children's surnames were changed from Adeji to Olayeni.
21. On the 20^th October 2009 the claimant returned to the deputy British High Commissioner to confess that the children were not her own and were in fact her sister's. The British Deputy High Commission held onto the claimant's British passport while they carried out an investigation before returning the passport to her.
22. On the 14^th December 2010 in Lagos the claimant reported her passport was missing. She applied for an emergency passport which was not issued. A few days later the passport was returned by the family of a domestic servant to the claimant. The claimant then used it to travel back to the United Kingdom where, upon her arrival the passport was impounded at Heathrow Airport on 21^st December. It had been cancelled when the claimant had declared it was lost.
23. On the 24^th December 2010 a further passport application number 073612308 was submitted by the claimant. This was a replacement application for the passport that had been declared lost when she was in Lagos.
24. On the 24^th March 2011 and on the 8^th April 2011 letters were sent to the claimant asking her to attend for an interview in connection with her passport application. She was asked to bring extensive documentation with her to confirm her identity. On the 28^th April 2011 the claimant attended for interview and produced some documents. She said that she had been born in the United Kingdom and went to Nigeria in 1969. She travelled out on the passport of a family friend, Mrs Carbiaawu. She did not know where Mrs Carbiaawu was and did not have a copy of her passport onto which she said she had been added.
25. She said that she had returned to the UK in 1982 on a Nigerian passport which was now lost. All her siblings lived in Nigeria although one sister had died.
26. The notes continue,

"This applicant's ID appears to be in doubt, as she stated she has been in the UK since 1982, but had no documents to confirm this claim. Further, she claims that as a child she travelled on a family friend's passport which is no longer available. The passport that she entered the UK in is also unavailable. The applicant went on to ask why she was being questioned regarding her ID, when all this was done in 2008 by Durham. In view of this statement I checked FMI and located application reference number 93973804X Olayeni Mobolanale Oyinkansola 19/11/61. It would appear that the first interviewer asserted that the applicant's ID was in doubt. However a futher interview was conducted and the applicant was issued with a passport, without any further documents."

27. The claimant was interview again on the 16^th August 2011. Unlike the earlier interviews there are no notes of the content of that interview.
28. On the 25^th May 2011 the claimant complained to the Newport customer service manager at the passport office about the progress of her application saying that an official called Mr Abidin had verbally abused her and issued a threat that he would close the claimant's application because he was not satisfied with the tenancy agreement and other documents that she had sent to him.
29. On the 23^rd June 2011 the claimant's MP, Harriet Harman QC MP wrote to the claimant in response to her attending an advice surgery. Ms Harman said that she had written to Sarah Rapson, the Chief Executive of the Identity and Passport Service, about her case and would write further when she had had a reply to that letter.
30. On the 11^th July 2011 Sarah Rapson wrote to Ms Harman saying,

"Our records show prior to the issue of Mrs Olayeni's passport in 2009, concerns were raised over significant anomalies with the application. Mrs Olayeni attended interviews in order to discuss these. Mrs Olayeni was asked to provide historical documents dating back to her birth in 1961 but was unable to comply. She also stated that she had travelled to Nigeria as a child by being added to a family friend's passport and travelled back to the UK on a Nigerian passport which she had since lost. However, although there were concerns over Mrs Olayeni's identity the Identity and Passport Service had insufficient evidence to pursue the matter and a passport was issued in February 2009. I appreciate Mrs Oleyeni's concern over the delay in issuing her replacement passport. However, I must stress that her actions in travelling on a passport declared lost have compounded concerns over her identity. These concerns are also shared by the British high Commission in Lagos. The application therefore is currently subject to a number of internal and external security checks. It is vital that IPS completes all checks deemed necessary to establish the applicant's identity prior to a replacement passport being issued."

31. On the 13^th January 2012 a further letter was sent to the claimant from the defendant requesting production of documentary evidence. On the 27^th January 2012 the claimant was interviewed again with her mother. There are no notes of that interview in the papers before the court. On the 30^th April 2012 the claimant was informed orally that a passport would not be issued. On the 16th January 2013 a letter was written rejecting the claimant's application.
32. On the 25^th November 2013 DNA results were provided by the claimant which showed a 99.99% probability that the alleged mother, Victoria Olayeni was the biological mother of the claimant.
33. The claimant submits that she has been issued with a valid passport after two interviews by the defendant firstly by herself and, second, as a result of one where her mother attended also.
34. The claimant admits her mistake in seeking a passport for her nephews by saying that they were her own children and having her passport impounded. However, after an investigation in Lagos her passport had been returned to her. She was then able to use it for travel without query until 2010 when it was wrongly impounded. There had been three different officers who looked at the matter. Apart form Mr Abidin they had been satisfied with the evidence the claimant presented.
35. The suggestion that the defendant has made, namely, that the claimant is in fact her sister, needs to be seen in the light of her sister travelling on a visitor visa with her son Kingdavid. That would not have been issued to a child unless the British High Commission were satisfied that he was travelling with his legal guardian and that the parent held a visa to travel which was lawful. There has been no evidence forthcoming from the defendant to demonstrate that the claimant is, in fact, her sister Princess Temitope.
36. The defendant accepts that a person under the name of Mobolanle is a British citizen. She also accepts that the DNA evidence shows that the claimant is a child of Mobolanle's mother.
37. However, there are three key issues, which mean that the claimant cannot discharge the burden of proof. The first, is the complete dearth of documents for the period of 1982- 2008. The educational certificate which has been provided dated 18^th August 2003 purporting to be a certificate of health and social care/auxiliary nursing is not of the sort that one would expect. There are no bank statements or any financial documents. Although the claimant says that she did not work one would still expect to see some financial documentation. Although the claimant has said in interview that she has had a clothing and jewellery business there are no records relating to that. Further, there are no utility telephone bills or any medical or dental records. The total absence of documentation, therefore, raises a real question.
38. The second issue concerns the relationship between the claimant and the children Kingdavid and Kingsolomon. The claimant says that her sister, Temitope, left the United Kingdom in January 2008 leaving her children behind. The last time she heard from her sister was in March of that year. There was then no contact until October 2009. At that time the claimant applied for passports for the children claiming to be their mother. She says that the father was Mark Adjei who was shown as such on both the birth certificate from the Lambeth District Registry and the birth certificate issued in Nigeria for Kingdavid on 22^nd October 2009.
39. On the 14^th October 2009 a statutory declaration was made by the claimant to the effect that she was solely responsible for Kingdavid and Kingsolomon and that she had no contact with their father. A deed poll had been effected on the 14^th October 2008 whereby the former Princess Temitope changed her name to Mobolanle Olayeni. That, the defence submits, is consistent with what is shown on the birth certificates and suggests that the claimant is in fact Temitope.
40. The witness statement of the claimant, dated 10^th June 2014, says that the change of name deed was not sworn by the claimant and was entered into by her late sister Temitope. She had died after a car accident on 1^st March 2010.
41. The defendant submits that there is no explanation as to why Temitope would want to change her name, nor any explanation as to why she would want to be known as her sister. Further, the deed poll is dated 14^th October 2008 at which time the claimant had not heard from her sister so it is not at all clear how the document came into her possession. The combination of factors point to a conclusion that the claimant may be Temitope. Although the claimant says that Temitope died after a road accident and produces the death certificate that is without any authentication and, therefore, of extremely limited value.
42. The third issue is the fact the claimant attempted to travel on the passport which had been declared lost in 2010. There is no record of the conversation which she says took place and which authorised her to travel. That adds to the suspicion that there is as to the claimant's identity.

Discussion and conclusions

43. A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. In the circumstances of this case it is agreed that it is for the court to decide as a question of precedent fact, on the balance of probability, whether or no the claimant is a British citizen and entitled to a new passport.
44. I have heard no evidence from the claimant. All the evidence has been documentary.
45. There is no substantiated footprint of the claimant's stay in the United Kingdom over a protracted period. Whether that period extends from 1992 or from 1982 matters not: from whichever commencement date a substantial period of time is involved. The claimant has produced an educational certificate which does not appear to be authenticated. She has produced no financial accounts or evidence of any household bills. She has produced no evidence of registering with a doctor or dentist.
46. In the interviews with the passport service of which there are some notes in the first the claimant says she retuned to the United Kingdom in 1992. Although she was able to give addresses where she had lived she was unable to recall the postcode of 175 Tressillian Road, Bromley where she lived for in excess of 10 years.
47. Her explanation for not having a National Insurance number was that, firstly, she was supported financially. Secondly, that when she did work in clothes and jewellery it was a cash only business.
48. In the claimant's second interview she says she returned to London in 1982. She had fled to London on a Nigerian passport. Her relationship terminated in 1992 and, thereafter, she had had similar relationships where she had been financially dependant. In the third interview the claimant says that she returned to Nigeria in 1969. That is in contrast to what she had said in her second interview when she says she was sent to Nigeria to live with her grandmother when she was two which would be in 1963. Although a year or so may be difficult to recall at that distance a difference of 6 years is quite significant. I do accept that the claimant is the daughter of Victoria Olayeni as demonstrated by the DNA evidence which demonstrates that there is a 99.9% chance of that familial relationship. However, that does not establish what the claimant wishes. As the defendant points out on the claimant's own history she was one of two daughters. The defendant assumes, therefore, that the claimant is in fact the other daughter, namely Temitope who was born on the 19^th May 1973.
49. The claimant submits that the matter of identity was resolved on two occasions in favour of the claimant after full investigation. The extent of the investigation is not entirely clear to me on the papers that are before the court. What is clear is that doubts were expressed about the claimant's identity but, on the balance of probabilities, it appears that after the second interview in which the claimant and her mother were seen separately those initial doubts were overcome.
50. It has to be remembered that that was prior to an incident that I regard as highly significant which was when the claimant made an application on behalf of her two nephews, Kingsolomon and Kingdavid in 2009 for passports on their behalf to bring them to the United Kingdom. The fact that the clamant herself admits to deceiving the British High Commission I regard as highly relevant. It was a step that she was prepared to take knowing that it was a totally false claim. I accept that she later admitted to the High Commission that the children were not her own but the action undoubtedly colours her veracity.
51. Although the High Commission returned the claimant's passport to her having carried out their investigation, there is no evidence as to the extent of the investigation by the High Commission or whether it was was aware of the deed poll said to be effected by Temitope.
52. The relationship on the part of the claimant with the two children Kingdavid and Kingsolomon is curious if the claimant's version is correct. The claimant says that her sister, the children's mother, left in early 2008 leaving her children behind when Kingsolomon would be a matter of a few months old and Kingdavid would be about the age of two. There was then no contact until October 2009. In the absence of any other evidence I find that period without contact between mother and her children, in the circumstances, inherently implausible. Further, during that period Princess Temitope apparently executed a deed poll to change her name to that of the claimant. The lack of any apparent reason for so doing when the sisters were apparently out of contact with each other I find quite peculiar. It is also curious as to how the deed poll comes into the possession of the claimant.
53. The claimant says that Temitope died in a road traffic accident and produces her death certificate. However, the certificate produced has no official authentication and without that I find it of very limited value. The whole account of the relationship between the two sisters and the two young children I find unconvincing.
54. Putting everything together I cannot accept that the claimant has discharged, on the balance of probabilities, the burden upon her to establish that she is who she says she is on the evidence placed before the court.
55. Although the claimant has referred to the cases of R (on the application of Liaqut Ali) [2012] EWHC 3379 and R (on the application of J Sinha) [2013] EWHC 711 I find the first of limited assistance because the circumstances are so different to those in the instant case. The real challenge in the case of Ali was one of rationality of a decision to issue a passport to Mr Ali who had previously held a passport for a period of ten years. That is entirely different to the circumstances here. The case of Sinha is to confirm that the exercise for the court is to reach a conclusion on the balance of probabilities as to whether the claimant is a British citizen. That exercise I have undertaken and reached my conclusions. Inevitably such an exercise will be entirely fact sensitive. In those circumstances I do not find the previous cases of any great assistance.
56. In the circumstances on the evidence before me I am satisfied that the claimant has not discharged the burden on the balance of probabilities that she is who she claims to be and is entitled to British citizenship. It follows that she is not entitled to a passport. This claim is dismissed.