England and Wales High Court (Administrative Court) Decisions

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

		Birmingham CJC Bull Street Birmingham B4 6DS
		12/09/2014

HHJ David Cooke :

Introduction

1. The Claimant challenges the refusal to issue her a British passport, to which she claims to be entitled as a British citizen by descent. At the conclusion of the hearing, I informed the parties that the challenge would be allowed, for reasons to be stated later in writing. These are those reasons.
2. Formally, the decision challenged is that made by way of review on 23 May 2013 by the Overseas Passport Management Unit (OPMU), which is based in London and has a letterheading showing the logos of both the Foreign & Commonwealth Office and the Home Office Identity & Passport Service. In substance however the challenge is to earlier decisions of the British High Commission in Islamabad, Pakistan, to which the Claimant had made her passport application. No objection has been taken to naming the Secretary of State for the Home Department as defendant.

Factual background and decision challenged

3. The Claimant was born on 14 November 1988 in Pakistan. She claims to be the daughter of Moghul Khan, who was born 1 March 1940 in Pakistan but (as is accepted) was at the date of her birth a British Citizen. Moghul Khan died on 17 November 1989. It is common ground that if she is Moghul Khan's daughter, she too is a British Citizen, by virtue of s2(1) British Nationality Act 1981, which provides as follows:

"2 Acquisition by descent

(1) A person born outside the United Kingdom … after commencement shall be a British citizen if at the time of the birth his father or mother—

(a) is a British citizen otherwise than by descent…"

4. The Claimant's mother is Shah Jehan Begum, who is a Pakistani national, so that the Claimant is not entitled by descent on her maternal side.
5. It is also common ground that although passports are issued by virtue of the Royal Prerogative, if the Claimant is a British Citizen there are no grounds upon which she would be refused a passport in the exercise of that Prerogative. The Claimant accepts that the onus was on her to prove her entitlement to citizenship, by virtue of s 3(8) Immigration Act 1971. There is an issue however as to the standard of proof to be applied in relation to her passport application, to which I shall return.
6. The Claimant relies on the fact that her younger sister Zakia Begum, born on 15 December 1989, has been accepted as a British Citizen by virtue of descent from Moghul Khan and issued with a British passport accordingly. Her contention is that she has sufficiently shown by documentary and DNA evidence that they are full sisters, ie have the same father and mother, and that since it has been accepted that Zakia Begum's father was Moghul Khan it should also be accepted that he is her father.
7. The Claimant has produced various documents in support of her application to show Moghul Khan's British Citizenship and her descent from him, as follows:

i) Certificate of Registration as a Citizen of the UK and Colonies dated 22 October 1971 issued in Hong Kong to 'Maghul Khan' (p90 in the bundle, NB spelling)

ii) Nikah Nama (in English and Urdu) recording the marriage on 7 August 1976 of 'Mughal Khan' and Shah Jehan (p83)

iii) Certificate of Registration as a British Citizen of 'Moghul Khan', issued on 11 October 1988 (p87)

iv) British Passport issued on 15 December 1988 to 'Moghul Khan' (p94)

v) Death Certificate (issued in Pakistan but in English) of 'Moghal Khan' on 17 November 1989 (p82)

vi) Form B, which I understand to be a declaration made by Shah Jehan to the Pakistani Registration authorities as to the members of her family, dated 4 September 2001. The original is in Urdu, with a translation into English (p92). In the English version, the declarant is named as 'Shah Jehan Begum, widow of Mughal Khan' and three of her children are listed, Ikhtiar Zaman, whose father is named as 'Moghal Khan (deceased)', Rangis Begum (the Claimant) whose father is also named as 'Moghal Khan (deceased)' and Zakia Begum, whose father is named as 'Mughal Khan (deceased)'. This document was provided to the High Commission in Islamabad on their request (p116) in connection with the passport application of Zakia Begum. Her application was successful, though the records do not show what if any reliance was placed on this form in the process.

vii) Her own Birth Certificate signed in 2005, in English, naming her father as 'Moghal Khan' (p 77).

viii) Nikah Nama (in English and Urdu) recording her own marriage, apparently registered in 2009, naming her father as 'Mughal Khan' (p78)

8. The Claimant's first application was rejected by the High Commission by letter dated 13 January 2011 (p118) which gave reasons as follows:

" You are claiming British Nationality by descent from the late Moghul Khan as your claimed father. Before I am able to authorise the issue of passport facilities, I must be satisfied that you are related to the late Moghul Khan as claimed.

When applying for a British passport the onus is on the applicant to prove that he/she is a British citizen. The documents you have provided unfortunately do not conclusively prove this and you were requested to attend for an interview… during the interview you and your mother Shah Jehan Begum did not know much about Moghul Khan's life in the UK in general. You have failed to produce original passports of the late Moghul Khan to prove that he was present in Pakistan on or around 15 February, 1998 when you have been conceived, given your date of birth. You have also failed to produce progressive family photos to show a genuine family union. There was no single photo of you or your claimed father.

Due to lack of family knowledge and the aforementioned documents (sic) bring in to doubt the veracity of the application. I am afraid I cannot be satisfied you are related to the late Moghul Khan as claimed…

As your claimed father has passed away we are unable to offer DNA testing to prove the claim. "

9. It is not clear from the above what in particular caused the passport office to have doubts about the documentary evidence or why he attached such importance apparently to the Claimant's lack of knowledge of Moghul Khan's life in the UK and the absence of photographs of them together, on the assumption that he accepted that Moghul Khan died when the Claimant was just over 12 months old.
10. The claimant's representatives then arranged for DNA testing by Cellmark based on samples provided by the Claimant, Zakia Begum and Shah Jehan Begum. The report provided is dated 3 May 2011 and notes that the absence of samples from the children's father required that certain assumptions be made as a result of which "the results cannot be as conclusive as when the father is also tested." Nevertheless, the report stated that the probability that Shah Jehan Begum was the mother of the claimant was 99.9999% and the probability that she was the mother of Zakia Begum was 99.999%. These probabilities are so high that they amount to virtual certainty.
11. As between the claimant and Zakia Begum the report stated "Most likely relationship-full siblings. The DNA results are 1100 times more likely if Rangis Begum is related to Zakia Begum as a full sibling than as a half sibling." This was not expressed in terms of a percentage probability.
12. Some amplification of the reasons for refusal was given in a letter (undated but apparently sent in the second half of 2011) from the Head of the Counter Fraud Centre at the High Commission (p38) in response to further representations. In relation to Zakia Begum the author said "It is not a straightforward case and there are indeed inconsistencies, not only in the fact that Zakia Begum was issued with a British passport in January 2003, but also in [the Claimant's] own statement at interview. It's fair to ask the question-if her claimed younger sister was deemed to qualify, then why doesn't [the Claimant]?... Although [the DNA evidence] proves the relationship between [the Claimant] and Zakia Begum it does not prove paternity and therefore does not change the decision… I cannot comment on the issue of a British passport to Zakia Begum eight years ago but I wonder why [the Claimant] did not apply for a British passport at the same time?" The author plainly casts doubt on the correctness of the decision in Zakia Begum's case.
13. The DNA report was submitted to the High Commission with further representations and a new application form, which was again rejected by decision letter dated 13 July 2012 (p150) stating as follows:

"The documents provided unfortunately do not conclusively prove [that you are a British National] and you have failed to provide any new additional contemporaneous evidence to prove otherwise. Unfortunately the option of DNA is not possible because your claimed father is deceased. "

14. Further representations were then made seeking a review to the Overseas Passport Management Unit in London, leading to the decision now challenged by letter of 23 May 2013 (p64) which said:

" When submitting a passport application the onus is on the applicant to provide as much information as possible to support their application. When assessing the application passport officials must be provided with evidence of the applicant's identity and eligibility, and without this they can only assess the application on the documents that are provided. Unfortunately there were insufficient documents provided to establish that [the Claimant] was a holder of the identity she submitted.

As [the Claimant] is claiming British Citizenship through her father, DNA testing with her mother does not provide any further evidence. "

15. Ms Candlin confirmed, on instructions, that the reference to the claimant not having established that she was "a holder of the identity she submitted" was not intended to cast doubt on the claimant's identity save in respect of her claim to paternity.

Applicable standard of proof

16. The first ground of challenge pursued by Mr. Pipe is that the defendant has unlawfully applied an excessive standard of proof in considering whether the claimant has demonstrated that she is the daughter of Moghul Khan. This emerged from the grounds of defence, which stated that "the standard of proof for Her Majesty's Passport Office (HMPO) with regard to the issuing of British Passports is 'beyond all reasonable doubt' ". It is accepted that that is the standard that has been applied, as is indicated in the various decision letters by statements that the documents provided "do not conclusively prove" paternity.
17. Mr. Pipe submits that the standard of proof in establishing entitlement to citizenship is the normal civil standard of the balance of probabilities. This he submitted was determined by a tribunal in Kessori Khatun and ors v Entry Clearance Officer- Dacca. Neither side was able to provide a copy of that decision, but it was said to relate to establishment of citizenship for the purpose of establishing a right of abode. Further, he submitted that the published policy of the defendant was to apply that standard, pointing to the Defendant's "Nationality Instructions", a guidance document issued to civil servants in the UK Visas and Immigration department of the Home Office and published on the Internet.
18. In a section headed "Automatic Claims" (which include a claim by descent) that document says:

"1. We are frequently called upon to give advice on whether an individual may have automatically acquired British citizenship or one of the other forms of British nationality. Nationality is a matter of law on which only the courts can rule conclusively; however our advice is usually accepted by the passport and immigration authorities…

4.1 The Immigration Act 1971 puts the burden of proving a status on the applicant or claimant…

4.3 As to the standard of proof required, it was held by the Immigration Appeal Tribunal in Kessori Khatun (4272) that "the standard of proof applicable to the right of abode, whether that be dependant on citizenship or relationship, is that of the normal balance of probabilities". In other words, a right of abode is established, or a claim to citizenship made out, if the evidence that it exists outweighs, however slightly, the evidence that it does not. Any requirement that the applicants/claimants produce "conclusive" evidence of their status, or establish their position "beyond doubt", sets the standard too high and risks censure by the courts if the case goes to judicial review. In official correspondence, such words and phrases are therefore best avoided.

4.4 Although in Kessori Khatun the Tribunal was concerned with the right of abode, the same standard is thought to apply to proof of citizenship for other purposes (eg for passport/consular protection purposes, voting, etc). "

19. HMPO refers to itself as an executive agency sponsored by the Home Office. I was not addressed about its exact status but proceed on the assumption that it is a different organisational entity from UK Visas and Immigration, but also making decisions on behalf of Secretary of State for the Home Department and ultimately the Crown.
20. Ms Candlin told me, on instructions, that it was accepted that the standard of proof to be applied in demonstrating citizenship for purposes other than the issue of a passport was the balance of probabilities. However, the standard applied by HMPO had always historically been "beyond reasonable doubt".
21. Thus, she said, if the Claimant had applied to the Home Office "for citizenship" her claim would have been assessed on the balance of probabilities. Mr. Pipe's response is that there is no such application she could have made; for instance there is no document now equivalent to the Certificate of Registration issued to Moghul Khan in 1971. Ms Candlin said, again on instructions, that if an application requiring citizenship to be established had been made to a department or agency of the Home Office other than HMPO and it had been accepted by them that on the balance of probabilities she had shown herself to be a citizen, a subsequent application to HMPO for a passport would not be refused.
22. No reason could be given as to why a different standard should be applied by HMPO, other than that historically it had been. Although the decision is made in exercise of the Royal Prerogative, it was not argued that that could be a justification.
23. The position contended for is, it seems to me, logically absurd. Citizenship is a matter of status and an individual is either a British Citizen or not; he cannot be a citizen for one purpose but not for another. Yet, if different standards of proof are applied by different government departments there must be cases that would fall between the two standards, so that those departments applying the lower standard would recognise a person as a citizen whereas those applying the higher standard would not. Further, the position of HMPO as stated would seem to be that by virtue of applying a higher standard it might not accept that citizenship had been shown on an application made directly to it, but would do so if the same applicant had previously made a similar application for different purposes to another department which had accepted it applying the lower standard.
24. Absent specific statutory provision, there must therefore be only one standard to be applied by law in demonstrating citizenship, which applies for all purposes. It was not submitted to me that the decision of the Immigration Appeal Tribunal in Kessori Khatun was wrong, and the result must be that I must find that the standard determined in that case, ie the normal civil standard, must apply in all other circumstances. It follows that the decision challenged was erroneous in law and must be quashed as it applied the wrong legal standard.
25. It was not submitted to me that the decision would inevitably have been the same if the correct standard had applied. Much was made of the differences in the various spellings of 'Moghul Khan' between documents, and even within the same document, as indicating that there might be more than one individual with similar names. On that basis, it was said, the documents supplied could not sufficiently establish that the Claimant's father was the same individual as the Moghul Khan to whom a British Passport had been issued. I cannot tell whether these differences are simply the result of different renditions in English of the same characters in the original Urdu script. If there are different characters in the Urdu script, that may have come about because the same person's name was written in different ways by different people at different times, or because there were two or more individuals with similar but not identical names. Nor is it possible to tell from the decision letters whether any concern about such differences, in English or Urdu, underlay the refusal by the High Commission (which would have been able to examine any inconsistencies in the Urdu script as well as the English renditions) to accept the documents as "conclusive", because no mention is made of the point. It is not for me to express a view on these issues, which must now go back to the decision taker to determine whether these documents, in combination with the other evidence, make it more likely than not that they show the paternity claimed.

Irrationality

26. Mr. Pipe puts the same point alternatively on the grounds of irrationality of the decision, but I do not think that is right. The potential absurdity is a reason why I conclude that there can be only one standard which is correct in law. This is not a decision which is an irrational choice made by a decision taker between two legal standards that could in principle be applied by him, but the incorrect making of a decision by applying a standard that was not open to him.

DNA evidence

27. The second basis of challenge is that the decision irrationally fails to accord any evidential weight at all to the DNA evidence provided. The various decision letters all take what is essentially the same point; that DNA evidence cannot assist because in the absence of a sample from the putative father it may demonstrate the relationship between two putative sisters but not who is the father of either of them.
28. On its own of course that must be correct. But if the father of one is known, the DNA evidence must go to the probability that the same person is also the father of the other. In this case, it is said, Zakia's father is known to be Moghul Khan, the DNA test shows that it is 1100 times more likely that the claimant has the same father than a different one, and accordingly there is a correspondingly increased likelihood that her father is also Moghul Khan.
29. The grounds of resistance address this point by referring to a letter of 22 August 2013 from the Deputy Head of the OPMU which says "You also referred to her sister's application. All applications are assessed on their own merits and we are unable to take in to account [one] person's application when assessing the application of another".
30. No doubt it is the case that the outcome of one application is not determinative of another. Thus the fact that it was accepted on Zakia Begum's application that her father was Moghul Khan does not mean that Zakia Begum's paternity must necessarily be accepted when the Claimant later relies on it. It is for the claimant to show, on the balance of probabilities, all the links in the chain she needs to follow from Moghul Khan to Zakia and then to herself. But it seems to me that even the mere fact that it has previously been officially accepted that Zakia's father is Moghul Khan must be of some evidential value in support of that assertion as now made by the claimant. Further, if the claimant is able to produce some or all of the evidence that Zakia previously relied on in her own application, while no doubt that evidence must be evaluated now in the light of all the other evidence available, it is of some weight in doing so that it has previously been accepted that such evidence establishes the proposition in question. This is particularly so if the previous assessment was against a requirement that the proposition had to be conclusively proved.
31. It was accordingly in my judgment irrational to say that the DNA evidence had no evidential weight at all, and had it been necessary I would have allowed the challenge also on that ground.

Inadequate reasons

32. Lastly, Mr. Pipe said that the decision letter was perfunctory and failed to deal with the extensive submissions made about matters such as the weight to be accorded to the documents and the unlikelihood given the cultural norms in the rural area of Pakistan in which she lived that Shah Jehan as a married woman would have an adulterous relationship. But Ms Candlin was in my view right to say that the final decision letter must be read together with those that had preceded it, since it was a decision on a review of a matter considered on several previous occasions. Decision letters in general have to give sufficient reasons to show what has been decided and why. They do not necessarily have to engage in a point by point refutation of all the arguments put forward. Taken together in this way, it is in my view sufficiently clear what the decision was and why the decision taker was not satisfied that paternity was shown conclusively, albeit that I have held that the basis of that decision was flawed for the reasons given.