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
		16/07/2015

Mr Justice Warby:

Introduction

1. In this judicial review claim the Claimant seeks an order quashing a decision of 2 October 2013 to declare null and void the grant to him of British citizenship. That decision was taken by the Defendant on the basis that in and after 2001, when he arrived in the UK and claimed asylum, the Claimant deceived the Defendant by pretending to be someone he was not, and in particular by giving a false place of birth; and that the Defendant granted him leave to remain and in due course citizenship in reliance on the false information. In consequence, the Defendant determined, citizenship had never in law been granted to the Claimant.
2. The Claimant's pleaded case is that:-

i) The Defendant's decision was procedurally unfair, and unreasonable in the Wednesbury sense.

ii) The Defendant was factually wrong in her decision. The Claimant claimed asylum and received leave to remain and, ultimately, citizenship, in his own name, without any identity fraud.

iii) Further and alternatively, even if there was any deception, it was not material to the decision.

iv) The Claimant was under 18 at the time of any deception and for that reason should not be held responsible for it.

3. A supplementary decision upholding the original determination was made in response to the claim, on 19 May 2015, at the same time as the Defendant's Detailed Grounds of Defence were served. This too is, naturally, challenged by the Claimant.
4. In the event, I am concerned only with grounds (i) to (iii), as the fourth pleaded ground of challenge has not been pursued.
5. The essence of the Claimant's case falls under grounds (ii) and (iii). He maintains that he is the person that he said he was; that it is for the Defendant to prove that her decision to the contrary was correct in fact and that the deception she alleges was material to the decision to grant citizenship; and that she has failed to do so.
6. The fairness and rationality complaints under ground (i) have receded in importance, for obvious reasons. The Claimant's essential complaint under this head has been that the Defendant reached her decision of October 2013 on an inadequate evidential basis, without giving him any opportunity to address in advance the reasons why she suspected him of impersonation. However, not only has there been the supplementary decision, it is accepted that any unfairness has been substantially cured by the factual investigation undertaken in these proceedings, which will determine whether or not the Defendant was right. Accordingly, the Claimant does not seek any order quashing the October 2013 decision on these grounds.
7. It is on issues (ii) and (iii) that I shall focus, therefore, before returning at the end of this judgment to some brief observations on grounds (i) and (iv).

Legal and policy context

8. The decisions under challenge were made in the context of Chapter 55 of the Defendant's Nationality Caseworking Instructions on deprivation and nullity of British citizenship. The Instructions set out the circumstances in which it is considered that a person may be deprived of citizenship, or have its grant declared to be a nullity. Paragraph 55.1.3.1 states that:-

"If there has been a decision to grant an application for registration or naturalisation as a British Citizen, nullity action would be appropriate in circumstances where

A: It is discovered that the applicant is not the intended recipient of the grant

This could happen in the following ways:

The applicant has given false information or concealed information concerning their identity, for example by using a false name, giving a false date or place of birth…in this scenario, whether nullity action is appropriate will depend on the nature, quality and extent of any fraud, deception or concealment."

9. Paragraph 55.9.3 and 55.9.4 contain further provision as to the circumstances in which impersonation can lead to nullity:

"…A grant of British Citizenship or registration as a British Citizen should be treated as a nullity where the applicant has concealed or misrepresented such identifying particulars to such a degree that they can be said to have adopted a false identity in the sense of false attributes. The decision will be specific to each case. It will be a question of fact and degree depending on the nature, quality and extent of the fraud, deception or concealment

It should be remembered that a person is, at all times, and without the need to observe any particular formality, free to take on any name he or she chooses. There is nothing illegal in this, providing the person involved is not advancing a false identity"

10. The relevant legal principles are not in dispute. Most of them were identified by Ouseley J in Kaziu v Secretary of State for the Home Department [2014] EWHC 832 (Admin), [2015] 1 WLR 945, where he drew on earlier authorities for a synthesis of the current law. Ouseley J's decision is under appeal, but accepted as authoritative in this Court. Paragraph references in what follows are to the judgment of Ouseley J unless otherwise indicated.

i) There is a narrow category of case in which the grant of nationality is a nullity, with the effect that the person affected has no right of appeal, as they would do if they were deprived of nationality on the grounds of fraud: [41].

ii) The distinguishing feature of cases in this category can be summed up in the word "impersonation". More specifically, there must be a false representation as to identity. Moreover, it is not just any matter which can be described as an attribute of a person or his identity which matters; the key characteristics of identity in this context are name, date of birth, and nationality, or country and place of birth (if the latter is used in place of the former): [42]-[46].

iii) The grant of citizenship has to have been obtained by fraud, and not by an innocent error or misunderstanding or the like: [47].

iv) The fraud must also be material to the grant: [47].

v) The question of whether a grant of citizenship is a nullity is an issue of fact for the Court. It is not merely a question of whether the Secretary of State has reached a reasonable judgment. If there is no fraud such as to lead to the nullity of a grant of citizenship the Defendant Secretary of State has no power to declare it a nullity. If the point is disputed, the Court must make a finding of fact. [48].

vi) The burden of proof is on the Defendant: [48].

vii) The standard of proof is the ordinary civil standard of the balance of probabilities. (Although it was submitted in the Claimant's Skeleton Argument that the fact that the allegation was of fraud meant that proof beyond reasonable doubt was required, Mr Ahmed, who did not prepare the Skeleton Argument, has not persisted in that point.)

viii) The fact that the allegation is one of fraud does affect the approach the court should take, but in the way authoritatively established by the decision of the House of Lords in Re B (Children)(Care Proceedings: Standard of Proof) [2008] UKHL, [2009] 1 AC 11. There is no question of any 'enhanced' civil standard of proof. As Lord Hoffmann said at [13] "… the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not." Lord Hoffmann went on to explain at [14] that the right approach is to follow the guidance of Lord Nicholls in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586:

"the court will have in mind as a factor, to whatever extent is appropriate in the particular case , that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

The emphasis is that of Lord Hoffmann, and was meant to underline the importance of tailoring the approach to the facts of the case.

11. To these principles I add only three further observations. The first is that the burden lies on the Defendant to prove the fraud and its materiality. Secondly, the approach in Re B will be material only in relation to the first of those two points. Thirdly, to some extent the Re B approach cuts both ways in this case. That is because, as will appear, the Claimant's own case is that he obtained Iraqi identity documents by fraud on the Iraqi authorities. I bear in mind, however, that it is not he who bears the burden of proof.

The approach to fact-finding

12. In most legal contexts, the truth or falsity of a disputed allegation of fraud would be investigated through oral evidence, with cross-examination. Oral evidence and cross-examination are not the custom in judicial review, no provision had been made for it in the directions given in this case, and both Counsel were taken by surprise when I raised the possibility at the outset of the hearing.
13. After a pause for thought and instructions, Mr Ahmed for the Claimant proffered his client for cross-examination, whilst noting that no arrangements had been made for an interpreter, but that his client spoke English. Counsel for the Defendant, Ms Walker, was unprepared for and did not apply for permission to cross-examine. I concluded that there was a measure of opportunism in Mr Ahmed's approach and that I should not impose a requirement to cross-examine at short notice. There was a real risk that cross-examination of the Claimant in a language that on any view is not his first language, without an interpreter, and without preparation by the cross-examiner or the witness, would be unprofitable or unfair. As both sides had prepared on the basis that a decision would be made on the papers, it was not unfair to either in my judgment to proceed without cross-examination.
14. Standing back from this case, though, it seems to me that there is much to be said for testing evidence in cases of this kind by some, appropriately focused, cross-examination. If that is to be done, the parties and their Counsel must of course come prepared for it. The witnesses to be cross-examined must be warned to attend. Time estimates must allow for it. For as long as this class of case continues to be the subject of judicial review claims, rather than appeals to the First Tier Tribunal, the court and the parties should consider at the permission stage whether there should be directions for cross-examination.
15. Issues also arose at the outset of the hearing as to the range of documentary material I should consider. As I shall explain, the Claimant filed a witness statement and supporting documents out of time. He made no application to extend time before or after doing so, until the hearing. The Defendant, in response to parts of the Claimant's witness statement, obtained some additional documentation, evidencing refusals of entry clearance in respect of the Claimant's wife.
16. Mr Ahmed, on instructions, apologised for the delay and explained that it had been due to oversight at his instructing solicitors. The application to extend time was not opposed by the Defendant, as Ms Walker wished to rely on the evidence herself. Nonetheless, I considered whether I should extend time. I did so on the assumption that the Claimant required relief pursuant to CPR 3.9 from the sanction imposed by CPR 32.10. I therefore obtained an undertaking from the Claimant through Mr Ahmed, to verify by witness statement what I had been told. I concluded that the failure to serve evidence on time was a serious breach, and inexcusable, but that viewing the matter in the round it was just to admit the evidence.
17. The Defendant was keen to rely on the Claimant's witness statement and additional evidence and so had not been prejudiced, save to the extent that the entry clearance documentation had been produced at a late stage. Ms Walker wished, if objection was raised to the admission of this evidence, to seek an adjournment at the Claimant's expense. Once the documentation had been disclosed to the Claimant and considered, however, Mr Ahmed did not pursue an objection to my considering it, but made submissions upon it. The detrimental impact on the administration of justice of the failure to serve evidence on time was in the event minimal. There was an impact due to the late service of the Skeleton Argument and hearing bundle, which I received only after 4pm the day before the hearing. This undoubtedly prolonged the hearing, but that is matter separate from relief from sanctions, which can be addressed by an appropriate costs order.
18. I have therefore had regard to all of the documentary evidence presented by each party, though I have avoided placing any weight on parts of the Entry Clearance decisions other than those which were relied on by Ms Walker as material rebutting new matters put forward in the Claimant's late witness statement.

The evidential picture

19. The Iraqi city of Mosul^[1] has been in the news recently, as it is one of the largest cities currently occupied by the Islamic State organisation. During the late 1990s and early 2000s, however, it was occupied by the forces of the then government of Saddam Hussein.
20. It is the Defendant's case that Home Office policy at the material time was to grant exceptional leave to remain (ELR) to those arriving from Iraq who were not refugees, but who originated in Government-controlled Iraq, known to the Home Office as GCI. Another area of Iraq, known as the Kurdish Autonomous Zone, or KAZ, was not controlled by the government and was considered safe, says the Defendant. It was not policy to grant ELR to those arriving from that area. These points are disputed, and I shall have to return to them.
21. The Claimant arrived in the United Kingdom, in Dover, on 23 September 2001. Four days later he claimed asylum, giving the name Mohammad Mahmood Rushite and his place of birth as Mosul. I shall refer to the name given at that time as MMR. Mosul is said by the Defendant to have been within GCI. The notes of the screening interview record that the Claimant then stated that his nationality was Kurdish (Iraqi), that he had not held a passport in his own name, and that he had not used a passport or other identity document to travel to the UK. He stated that he had "Paid agent who arranged travel by container."
22. On 30 October 2001, that is to say, shortly after his 18^th birthday, the Defendant wrote to the Claimant refusing his asylum claim but granting – in the name of MMR – exceptional leave to remain "because of the particular circumstances of your case."
23. On 16 April 2002 the Claimant signed an Immigration and Nationality Directorate Form in the same name, giving his place of birth as "Mosul-Iraq". Section 7 asked for details of "your last passport, travel document or any other document which you still have". In response he stated "None". The explanation given for not enclosing any such document was "I haven't any, illegal enternant" (sic). In answer to the question why he could not get a passport from his own national authorities he stated "the Iraqi authority did not issue me any Documents".
24. On 12 February 2006, in the name MMR, the Claimant applied for and was granted settlement. On 10 March 2006 he applied in the name MMR for a Home Office Travel Document. The application form asked "Have you ever held a National Passport from your country of origin?" The Claimant crossed the box for "No". The form also asked for full details of any other travel documents that had been "lost, stolen, submitted to the Home Office or are otherwise unavailable". The Claimant left the relevant box blank.
25. On 23 November 2006 the Claimant applied for naturalisation as a British citizen. He gave his name as MMR, born on 21 October 1983 in Mosul. On 8 May 2007 he was issued with a certificate of naturalisation number 5203534, in the name of MMR It is this decision that is said by the Defendant to have been made in reliance on false representations. The subsequent history is however highly relevant to an assessment of whether that conclusion was correct.
26. In 2008 the Claimant married a woman called Hero. A marriage certificate exists dated 24 January 2008 which identifies the Claimant as Pusho Mahmood Rashid located at "Kendrawa". I shall refer to this name as "Pusho". The Claimant's wife was identified as Hero Mohammed Othman, of Erbil. Erbil is a city in the north of Iraq. Other spellings of the Claimant's wife's full name appear in the documents. I shall refer to her simply as "Hero".
27. On 18 November 2008 Hero applied to the UK Border Agency for entry clearance as the spouse of a British citizen settled in the UK. The Claimant was her sponsor. She presented a passport and a number of documents purporting to be Iraqi documents, including a marriage certificate. According to the official record of the decision of the Entry Clearance Officer (ECO), Hero stated that she had met her sponsor for the first time on 2 January 2008, married him on 1 April 2008 in Iraq, and lived with him for 4 weeks after that.
28. In his decision letter to Hero, the ECO refused the application on a number of grounds stating, among other things, that he was not satisfied that the revenue stamps on any of the documents submitted were genuine, and that he had "reason to seriously doubt the Iraqi documents you have submitted confirming your identity and marriage." The ECO stated that the documents had been passed to the Risk Assessment Unit at the British Embassy in Jordan for checking with the relevant authority in Iraq. The records before the court do not include a copy of the marriage certificate presented by Hero to UKBA in November 2008.
29. On 21 January 2009 Hero made a further application to UKBA for entry clearance. On this occasion she presented additional documentation included what is described as a "Lebanese marriage document". A copy of such a document is before the court. It is a document apparently issued by the Republic of Lebanon, Presidency Council of Ministers. It is dated 12 December 2008, and appears to record a Sharia marriage taking place in a religious court in Lebanon on 16 December 2008 between Mohammed Mahmood (father's name Rushite), date of birth 21 October 1983 and place of birth Musel, and Hero Aussman, date of birth 2 June 1987, place of birth Erbil. According to the ECO's decision letter of 21 January 2009 Hero stated that she was married in Iraq on 24 January 2008.
30. The ECO refused the application. He had received from the British Embassy in Amman "official confirmation regarding the validity of documents previously presented". This stated that the ID document Hero had presented then was a counterfeit. The ECO wrote "It has been established therefore that you presented a fake document in support of your previous application." The officer noted that the marriage certificate previously presented had been considered not to be genuine. He had been informed that the Lebanese document had not been registered with the Lebanese authorities, and was not satisfied that it was legal evidence of marital status.
31. On 22 May 2009 the Claimant's son Anas was born in Erbil, Iraq. The birth certificate records the Claimant's name as Pusho, and his parents' address as Rizgaree, Erbil.
32. On 6 September 2010 the Claimant signed, at the offices of English solicitors, a Deed of Change of Name, recording a change of name from MMR to Pusho.
33. Three Iraqi documents dated in 2012 exist, all of which are agreed to be authentic documents, which record the Claimant's name as Pusho, and refer to Erbil.

i) The birth certificate of the Claimant's daughter Aya. This records her birth on 19 May 2012 in Erbil. The Claimant's name is recorded as Pusho Mahmood Rasheed and Aya's parents' address is given as Rizgaree, Erbil.

ii) An Identification Card dated 9 July 2012 issued to the Claimant by the Iraqi Directorate General of Nationality and Civil Status. It identifies him as Pusho, date of birth 21 October 1983, and gives his place of birth as Makhmour, Erbil. It states that he is married.

iii) An Iraqi Nationality Certificate dated 3 September 2012 issued to the Claimant as Pusho, and stating his place and date of birth as Erbil, 1983.

34. The following appears on the face of the Nationality Certificate, above the particulars of the individual's name, date and place of birth, and other personal details (I quote the official translation):

"Volume No 2004/13463 J Erbil

Certificate No 338834

DATRE: 28.04.04

IRAQI NATIONALITY CERTIFICATE

Based on the verification of acquiring by

PUSHO MAHMOOD RASHEED

Whose photo is affixed above, the Iraqi Nationality according to the Article (4/A) of the Iraqi Nationality Law, he has been granted this certificate

(Signed)

Nationality director

SEAL AND SIGNATURE

_________________________________________

NB. We confirm that this certificate has been issued as per the original one issued to him previously.

Certificate no. 1818985/M3

Date: 03/09/12"

35. On 5 November 2012 the Claimant lodged at the British Embassy in Amman first time child passport applications for his two children. With the application he presented documents in the name of Pusho: the Iraqi marriage certificate dated 24 January 2008 referred to at [26] above, and the ID card and Nationality Certificate referred to at [33] and [34] above.
36. The Claimant was called to an interview at the Embassy which took place on 16 April 2013. According to the typed record it was a short interview, in English. Present in addition to the Claimant were the interviewer, a Mr Tant, and Mr Ahmed Apesh. Mr Apesh had been the Defendant's Regional Counter Fraud Officer (Middle East and North Africa) since April 2012. He is noted in the record as being the interpreter but he was not performing that role in fact. The Claimant had said at the outset of the interview that he did not need one.
37. In the course of the interview the Claimant identified himself as Pusho. He said that this was the name he had given when naturalised. It was put to him that his naturalisation certificate stated another name and place of birth. He replied "Yes I changed my name". He was asked why he had given another name and place of birth and answered "Because of Saddam regime". He said he had only changed his name once. He said he had married on 1 February 2008 in Erbil, but got the marriage certificate from the court on 24 January 2008, a week earlier.
38. On 14 June 2013 the Claimant applied for a British passport in the name of Pusho. On 22 July 2013 an Iraqi Civil/Identification Card no 00334200 was issued in Mosul, in the name of MMR. The place of birth was listed as Mosul. The marital status was given as Bachelor. On 24 July 2013 an Iraqi Certificate of Citizenship no 0695986 was issued in the name of MMR, giving the same year and place of birth.
39. On 2 October 2013 the Defendant wrote to the Claimant the decision letter which prompted the present claim. It was addressed to him as "Mr Mohammad aka Pusho Mahmood Rashid". It recited his application for naturalisation and the identity details he had then given and went on, so far as I need to recite its contents, as follows:-

"….On the basis of this information a certificate of naturalisation number 5203543 was issued in those particulars on 8 May 2007.

… However the Secretary of State subsequently received information that indicated that your genuine identity is Pusho Mahmood Rashid born 21 October 1983 in Erbil, Iraq.

… If your genuine place of birth had been known at the time you claimed asylum on 23 September 2001, you would not have benefited from the Country Policy that was in place at that time.

…The Country Policy on Iraq at the time you claimed asylum in the United Kingdom stated that any person who originated from former Government controlled Iraq, i.e Musel, would be granted ELR, if they were not recognised as a refugee, if it had been known that you were from an area of Iraq that was not under control of the former Government you would not have benefited from the Country Policy and been granted a period of ELR. Erbil was in an area of Iraq previously known as the Kurdish Autonomous Zone and considered a safe area of the country. Therefore you were not the person who the Secretary of State believed you to be.

British citizenship was awarded to Mahmood Rushite Mohammad, born in Musel on 21 October 1983 not to Pusho Mahmood Rashid born in Erbil on 21 October 1983. If you had provided your genuine details at the time you claimed asylum you would not have been granted ELR which in turn led to you obtaining ILR. Without ILR you would not have been allowed to naturalise as a British citizen. It is evident that the false details you provided concealed your true identity and place of birth and permitted you to obtain British citizenship.

… Consequently, you are not, and never have been a British citizen. The naturalisation certificate, number 5203543 is therefore null and void and should be returned to this office for cancellation."

40. On 3 March 2014 the Claimant was arrested at Heathrow airport as he arrived in the country, and charged with three offences: obtaining leave to enter or remain in the UK by means including deception, obtaining a naturalization certificate by deception, and making an untrue statement to obtain a passport.
41. On 4 June 2014 the Claimant was served at Heathrow police station with a copy of the decision letter of 2 October 2013.

The proceedings

42. The claim form challenging the Defendant's decision was issued on 4 September 2014. Time was extended on the papers on the basis that the Claimant had not received the decision letter until 4 June 2014. The Grounds, settled by the Claimant's solicitors, contained the following:

"The Claimant is a British Citizen, originally from Iraq, born on 21 October 1983 in Musel, Iraq.

He arrived in the United Kingdom and claimed asylum as Mahmmood Rushite Mohammad on 23 September 2001 aged 17 (DOB: 21/10/83, POB Musel, Iraq)

The claimant was refused asylum but granted exceptional leave to remain. He later applied for and was granted settlement on 12 February 2006.

The claimant applied for Naturalisation and was granted naturalisation as a British Citizen on 08 May 2007 on certificate number 5203534.

On 06 September 2010 the claimant signed a Deed of Change of name before Hartnells Solicitors, changing his name from 'Mahmmood Rushite Mohammad' to 'Pusho Rasheed'.

…

The claimant submits that in our client's case, any alleged impersonation was not so complete as to amount to a creation of a distinct or fictional character.

The claimant submits that he can bring himself within the description under which naturalisation was provided and accordingly nullity is not applicable in his case.

The change of name was legally conducted on 06 September 2010; further the defendant's own policy guidance states at 55.9.4 that adoption of a different name should not in itself be a reason to nullify.

The claimant retained his own name and characteristics and 'Mahmmood Rushite Mohammad' was not a fictional or stolen identity but a real person.

As such, it is submitted that the only material deception allegedly committed by the claimant was presenting himself as being born in 'Musel' in Iraq as opposed to 'Erbil' in Iraq.

It is submitted that this deception, when taken in light of all his other identifying attributes which was correctly presented, lacks sufficient degree so as to amount to the creation of an essentially fictional character.

It is submitted that the claimant's place of birth was not a material factor in his naturalisation application; it was only a material factor in his claim for asylum, which was refused.

…

Further it is submitted that the claimant has never admitted or claimed that he is from 'Erbil' and maintains at all times that he is from 'Musel'; he gave his original Iraq identity documents to the Defendant when he claimed asylum in September 2001. No reference is made to such documents in assessing the nullity action.

Further, the claimant holds an 'Iraqi Civil card no 00334200 issued in Mosel/Iraq on 22 July 2013' as confirmed by the Embassy of the Republic of Iraq in London."

43. The Grounds were accompanied by a letter appearing to be from the Iraqi Embassy in London, dated 16 July 2014. It states: "The Embassy of the Republic of Iraq in London confirms that Mr Mohammed Mahmood Rasheed is an Iraqi citizen according to his Iraqi Civil Card no (0334200) issued in Mosel/Iraq on 22 July 2013."
44. On 24 October 2014 the Claimant's solicitors made written submissions to the Defendant making submissions on his behalf. They repeated the assertion that he had claimed asylum in "his real and true identity" of MMR born 21 October 1983 in Mosul, and that he had "provided his Iraqi's passport at the time of this claim to prove his identity". They referred to his change of name by Deed Poll in 2010 and went on:

"`He purposely obtained a temporary Iraqis identity card which showed his place of birth as Erbil rather than Musel/Mosul. This decision was taken for the purpose of his safety while in Iraq. Around the period, insurgents have targeted people from Musel/Mosul and our client did not want his true place of birth known should he be stopped whilst travelling within Iraq. …

Our client … was born in Mosel/Mosul as indicated by the birth certificate and his original Iraqi passport and in a letter from the Embassy of Iraq…"

"The period" around which insurgents had targeted those from Mosul was not identified. It is unclear what the reference to a birth certificate was meant to be. There had been no previous reference to any birth certificate in the name MMR, nor has anything been said about one since.

45. On 5 December 2014 permission to seek judicial review was granted on the papers by Andrews J. The Judge gave procedural directions, setting a timetable for the steps towards this hearing. The order was sent out on 9 December. It required Detailed Grounds of Defence within 35 days of service, any reply and any application by the claimant to lodge further evidence to be lodged within 21 days of service of the Detailed Grounds. The usual directions were given for the filing and service of a trial bundle not less than 4 weeks before the hearing, with the parties' skeleton arguments to be filed not less than 21 and 14 days beforehand respectively, and an agreed bundle of authorities to be filed by the claimant not less than 3 days before the hearing.
46. On 12 January 2015 the Crown Prosecution Service notified the Claimant's solicitors that they intended to offer no evidence against him.
47. It was on 19 May 2015 that the Defendant served her Detailed Grounds of Defence. An extension of time had been sought and granted on account of problems beyond the Defendant's control (the Kingsway fire of April 2015.) The Grounds were accompanied by a supplemental decision letter dated 19 May 2015 which addressed the Claimant's solicitors' submissions, and two witness statements. One of these was from Andrew Newberry, an Executive Officer who has dealt since September 2000 with cases in which evidence has emerged that a subject granted British Citizenship should not have been issued with this status. The other was from Ahmed Apesh, the Regional Counter Fraud Officer to which I have already referred. In addition, the grounds were accompanied by a substantial volume of documents evidencing the history of the matter. These included some that the Claimant would not have seen before, such as the interview record from Amman.
48. The claimant's application to adduce further evidence, if any, was due on 9 June 2015, the trial bundle on 11 June, the claimant's skeleton argument on 18 June, and authorities on Friday 3 July. None of those deadlines was met. It was on 25 June 2015 that the Claimant served further evidence. I have described above how I dealt with this, and its consequences. Much of the "further" evidence consisted of documents already served. The real substance of it consisted of two new statements: a witness statement from the Claimant in the name of Pusho dated 24 June 2015, and a notarised letter said to be from Mohammed Aussman Ahmed, the Claimant's father-in-law, undated. The witness statement did not bear the statement of truth prescribed by CPR 22, but this defect was at my instigation remedied during the hearing.
49. In summary, the Claimant's statement gives the following account:

i) His name was originally MMR and he was born in Mosul. Due to the dangerous situation in Iraq his uncle had arranged for an agent to bring him to a safer place. At the age of 17 he arrived in Dover on 23 September 2001. He says "I never had a passport during this time and I only had an Iraqi ID." He says he submitted this ID to the Home Office when he applied for asylum and it was never given back. It had his place of birth as Mosul.

ii) Having obtained a travel document from the Home Office in 2007 the Claimant travelled to Erbil, where he met Hero. He had intended to visit "my family home in Mosul", but his father-in-law (Mr Ahmed) who was then a distant relative had advised against as the situation was dangerous. His father-in-law advised that he use an Iraqi ID rather than showing he was from the UK, and to adopt a new name "so that his daughter would not be seen with an outsider".

iii) Mr Ahmed had a relative called Pusho born in Makhmour, Erbil, who had died in a car accident. Using the name Pusho, and the Claimant's photograph, Mr Ahmed applied for a new ID card, with the result that the Claimant was issued with an official ID with the details of a dead person. He adopted that false identity "for my safety, and to re-assure my father-in-law that his daughter would be safe".

iv) The Claimant and Hero married in Erbil on 1 February 2008; however he received the marriage certificate on 24 January 2008.

v) The Claimant realised he could not sponsor his wife to enter the UK because the name in the marriage certificate was Pusho, and his British documents were in the name of MMR. So they married again in Beirut on 16 December 2008, with him using the name MMR. This was "so we could have a legitimate document ... that would match my UK residence documents".

vi) The Claimant learned that he could legally change his name in this country and therefore did so in September 2010, after which he applied for a British passport in the name of Pusho.

vii) When he was called for interview in Amman in 2013 "I was nervous and I could not understand everything that the officer was asking". After the interview he "immediately took action to prove" that he was MMR, applying for the ID card issued in Mosul on 22 July 2013. This described him as a bachelor "because I have never been married using my name, so there is no record of it."

50. The letter from Mr Ahmed, the Claimant's father in law states that the Claimant, to whom he refers in the name of MMR, "returned from Britain in 2007". He goes on:


"He came to my house in Arbil and wanted to go to Mosul to his family home and he did not have any Iraqi documents on him. He said that all his Iraqi documents had been taken from him the UK. He wanted to go back to his family in Mosul with his British passport. I advised him not to return to Mosul since the security situation was very atrocious and terrorists were threatening people's live and killing people. I advised him to stay with us until I find a solution for him.

I have relative in Makmoor who had a son called Pusho Mahmmood Rasheed. The son had died two months before in car accident. I went there (Makhmoor) and took the ID card of the deceased from my relative. Only mother's name and the date were different (from Mohammad's). We issued a (new) ID card (for Mohammad) from the Department of Civil Status (impersonating Pusho). A month later I approved his marriage to my daughter. Once again he wanted to return to Mosul, but I did not allow him. Therefore, he did the marriage register in Arbil using the identity of the new Identity card. We did all these arrangements because he had only a British passport on him and the security situation in Mosul was appalling, and people were getting killed on daily basis at the hands of terrorists. That is why we did not allow him and his wife to go back to Mosul".

Issues

51. The issues for decision are:-

i) Whether the Defendant has established that she was right to conclude that the Claimant fraudulently gave a false name and place of birth when applying for asylum.

ii) If so, whether such false identity details were material to the grant of citizenship.

52. It is convenient to deal with the issue of materiality first, as it can be taken comparatively shortly.

Materiality

53. This divides into three sub-issues: (a) what was the Defendant's policy at the material time? (b) whether Mosul and Erbil were within or outside the GCI, and (c) the influence or otherwise that the Claimant's claim to be from Mosul had on the decision to grant naturalization.

The Defendant's policy

54. In the Claimant's Skeleton Argument served on 3 July 2015 it was objected that the Defendant had "produced no policy document or objective evidence to support this claim that there was a separate asylum policy regarding exceptional leave to remain for an Iraqi who claimed to be from 'Mosul' as opposed to 'Erbil'." It was said that "There could have been many other possible reasons for the grant of ELR…" There had been no previous indication that issue was to be taken by him with the account of the Country Policy contained in the decision letter of October 2013. I have nonetheless allowed the point to be pursued, as it did not rely on any evidence but was in substance a matter of argument. The Defendant appeared to me to have taken on the burden of proving all the elements necessary to justify the decision to nullify, and I considered in any event that the Defendant was in a position to respond, even on short notice. She had done so, in part, by relying on a policy document to which I shall refer.
55. I find that the overwhelming probability is that the Country Policy in 2001 at the time the claimant applied for asylum was as stated in the decision letter. That is to say, I find that the Secretary of State's policy was to grant ELR to any person arriving from Iraq who originated from CGI, if they were not recognised as a refugee. I find, to the extent this is disputed, that Mosul was within CGI for this purpose.
56. My principal reason for reaching these conclusions is that they are supported by the witness statement of Mr Newberry. He, as I have made clear, was in post dealing with cases of this kind in and after 2000 and thus would appear to have direct experience. His statement also makes clear that he was the decision-maker in October 2013, whether or not he was the author of the decision-letter, which is unclear. Mr Newberry states as follows in paragraph 9 of his witness statement:

"9. The claimant claimed asylum in the United Kingdom on 23 September 2001. Although his asylum claim was refused, the Secretary of State for the Home Department had in place at that time Country Policy Guidance on Iraq which stated that any person whose application for asylum was refused; but who originated from a region of Iraq under the control of the former government of Saddam Hussain, should be granted four years Exceptional leave to remain ("ELR").

10. On claiming asylum, the claimant claimed that he had originated from such a region, namely the town of Musel. …"

57. The Defendant has also relied on paragraph 3.6 of the Iraq Policy Bulletin 1/2009 v1.0 (issued 12 January 2009) which gave the following account of the practice which pertained in respects of grants of ELR prior to 16 June 2003, and in particular, at the point in 2001 when the Claimant made his asylum claim.

"Although there was no country specific blanket ELR policy it was accepted practice that all asylum seekers who were accepted as being Iraqi nationals, but who were found not to be refugees, from April 1991 to 20 October 2000, would be granted 4 years' ELR arising from factors such as the severe penalties imposed on those who had left Iraq illegally. From 20 October 2000, in light of the improved conditions in KAZ, only claimants who were accepted to have come from GCI were granted 4 years' ELR. …"

58. The policy document itself has not been put in evidence, but given the lateness of the point taken by the Claimant I accept Counsel's assertion based on instructions that the policy document of 2009 was in these terms.

Was Erbil in GCI?

59. The Claimant's Skeleton Argument queries whether Erbil was within GCI. The Claimant's witness statement says that Erbil is "a historically disputed area between the Kurdish Autonomous Zone and the Iraqi Government. Makhmour lies between Mosul City and Erbil City. These two cities are only 50 miles apart." This evidence on its face accepts that Erbil was outside the area controlled by the Iraqi government. In any event, the issue is not so much whether Erbil was within the KAZ or GCI, but whether it was treated by the Secretary of State as within GCI. On that question the evidence of Mr Newberry is clearly to be preferred. He says this (emphasis added):

"16. …. HM Passport Office's view in light of the supporting documents produced by the claimant with his children's passport applications was that the claimant was in fact born in the town of Irbil/Erbil, which was not a region under the control of the former government of Saddam Hussain. The town of Irbil/Erbil was under the control of the Kurdish government. Therefore under the Country Policy Guidance for Iraq that was then in force, the claimant should never have been granted 4 years ELR which, in turn, led to the claimant being able to apply for, and obtain, ILR and subsequent naturalisation as a British citizen."

Causation

60. I reject the Claimant's pleaded case that his place of birth was material only to his asylum claim, and not to his naturalisation. The evidence establishes, in my judgment that his naturalisation flowed naturally and directly from acceptance of his claim to originate from Mosul. I accept paragraph 11 of Mr Newberry's statement, which says this:

"The claimant's application for citizenship would not have been successful if he had not held ILR prior to authorisation. Furthermore, the claimant would not have been granted ILR had he not been granted ELR 4 years earlier - the grant of ELR only being made because he claimed to have originated from Musel and therefore benefited from the existing Country Policy Guidance for Iraq."

61. It follows from these conclusions that I find that the Defendant has established that the Claimant's representation that he was born in Mosul was material to the grant of citizenship. That representation led the Secretary of State to grant ELR of 4 years pursuant to the Country Policy in place at the time, when ELR would not have been granted if he had represented that he came from Erbil. ELR led to ILR, which in turn led to naturalisation. The Claimant continued to represent his name as being MMR and his place of birth as Mosul throughout that process. It remains for me to determine whether these representations and, in particular, the representation as to place of birth were false and fraudulent representations.

The Claimant's true identity and place of birth

Submissions for the Claimant

62. Mr Ahmed invites me to accept that it is likely that the Claimant did arrive in the UK in possession of an Iraqi ID Card in the name of MMR showing his place of birth as Mosul, and that this was taken from him by the Home Office and not returned. He points out that the first thing a person arriving to claim asylum has to prove is his nationality. He points out that the Secretary of State quite swiftly accepted the Claimant's claim to Iraqi nationality, and granted ELR, which he suggests supports the view that there was corroborating documentation. He asks me to accept that references in other documents emanating from the Claimant's side to producing a passport, and to travel documents, in the plural, are the result of misunderstandings.
63. Mr Ahmed submits that the Claimant's account, whereby he adopted a new identity in Iraq in 2007 for reasons of safety, is entirely plausible given the manifestly dangerous conditions in that country. Mr Ahmed is critical of the interview at the Embassy in Amman, which he suggests is not a safe basis on which to reach any conclusions adverse to the Claimant. The Claimant was given no warning that the purpose was to question him about his change of name, it was not disclosed that Mr Apesh was a fraud manager, and in a short interview the Claimant was given no real chance to address the issues which were subsequently considered important. No follow-up questions were asked, for instance, when the Claimant gave the answer "Because of Saddam regime."
64. Nonetheless, Mr Ahmed submits, the Claimant was frank and open in interview. The reference he made in the interview to a "fake" ID was a confession that his Iraqi ID in the name of Pusho was a fake as to identity, but genuine in the sense that it had been issued by the Iraqi authorities. Mr Ahmed suggests that the Claimant's account of why his status appears as bachelor on the ID Card in the name of Pusho is credible, as there was no marriage certificate in the name of MMR.
65. Mr Ahmed is also critical of the Defendant's failure to conduct checks with the Iraqi authorities on the authenticity of the key documents. It is those authorities, he submits, who were the best people to confirm the Claimant's identity. The Claimant himself by contrast has obtained the Iraqi Embassy letter, and Mr Ahmed invites me to place considerable weight on this, the authenticity of which is not, he points out, disputed.
66. Attention is drawn to the CPS decision to offer no evidence, from which I am invited to infer that it was thought that the case failed the prosecutor's evidential test, that is, that there was insufficient evidence to afford a realistic prospect of a conviction. Similarly, submits Mr Ahmed, there is insufficient evidence to enable me to find as a fact that the Claimant is Pusho, from Erbil, rather than MMR, from Mosul.

Submissions for the Defendant

67. Ms Walker submits that the Claimant has changed his case every time he has re-stated it, and that Mr Ahmed has skated over the very real difficulties in accepting the account now offered. She submits that the version of events which fits those of the documents that can be relied on, and clearly makes sense, is relatively simple, its essentials being as follows:

i) The Claimant was born in Erbil as Pusho. He came to the UK at the age of 17 with no travel documents, using a false identity and a place of birth in an area known to be risky. This was done on the advice of the "agent" who helped him, to improve his chances of obtaining asylum or leave to remain.

ii) He later returned to Iraq where he was and is known under his true, original name. Hence, his marriage certificate and son's birth certificate in 2008 and 2009 give his true name and place of origin.

iii) Having returned to the UK on his British documentation as MMR he "changed" his name to Pusho in 2010, thus bringing everything into line. He returned to Iraq and in 2012 obtained an ID Card and Nationality Certificate in the name of Pusho, correctly identifying his place of birth as Erbil. He then sought to use those authentic Iraqi documents to obtain passports for his children.

iv) Confronted with a refusal of the passport application given the mismatch between the documents presented and the name in which he was naturalised, the Claimant realised there were problems. So he went to the Iraqi authorities in 2013 and obtained further documents in the name of MMR.

v) His naturalisation having been annulled for fraud, he then took a year to 18 months to come up with an explanation, meanwhile giving false information to the Defendant.

68. Inviting me to accept this, and to reject the Claimant's version of events, Ms Walker focuses on a series of points in time.
69. 2001. The Claimant's account in October 2013, though his solicitors, was that he had produced a passport on arrival. In fact, the records show that he said on his arrival and repeatedly after that, that he had no passport. Confronted with this, the Claimant claimed for the first time in June 2015 that he had been in possession of an Iraqi ID card, and reference to a passport was a mistake. The strong probability is, submits Ms Walker, that no documents were presented and that the Defendant granted ELR in reliance on information given orally in screening interview by the Claimant, a minor at that time.
70. 2007. The Claimant's account of adopting a false identity in Iraq in 2007, and of the reasons for doing so, is criticised by Ms Walker as internally inconsistent, convoluted, lacking corroboration, and inherently implausible. She points to differences between the various accounts given – in the letter of 23 October 2014, the Claimant's statement, and the letter of Mr Ahmed the father-in-law. The first account was that the Claimant obtained a "temporary" Iraqi ID showing his place of birth as Erbil as he was fearful of insurgents targeting people from Mosul. The account in the Claimant's witness statement relies on advice from Mr Ahmed to get an Iraqi ID, to avoid people knowing he was from the UK. He also suggests a need to avoid Hero being "seen to be with an outsider". He says nothing about any need to avoid reference to Mosul. Mr Ahmed himself does not, in his letter, corroborate these points. His letter does not explain why a false ID was thought to be necessary, and says he advised the Claimant not to go to Mosul, in which case it is unclear why he needed a false identity.
71. It is submitted that it is inherently improbable that the Claimant and his father in law would go to the lengths of fraudulently obtaining a false ID Card simply in order to avoid using either a British passport or a reissued Iraqi ID Card in the Claimant's own true name, MMR. It is pointed out that the 2007 ID Card has not been produced, nor has any explanation been given for its absence. The ID Card in the name of Pusho that we do have is the one of 2012.
72. 2008. Ms Walker points out that there are inconsistencies in the accounts given by the Claimant and Hero about when they were married, and inconsistencies between those accounts and the date of the January marriage certificate. Those are points on credibility generally. But her main point is that there is no persuasive explanation of why the Claimant should have used for this purpose the name Pusho and the place of birth Erbil, if these were false. It makes sense of course if these were true details.
73. 2009. Similarly, there is no adequate explanation for using the name Pusho on the son's birth certificate if that was a false name.
74. 2012. There is no explanation offered, submits Ms Walker, for obtaining the allegedly false ID Card and Nationality Certificate in the name of Pusho in 2012, if that was a false name. The alleged safety concerns of 2007 cannot account for it.
75. 2013 - 2014. Ms Walker invites me to reject the Claimant's explanation of the answer given in interview that "ID Card is a fake one but it is original." She points out that the question to which this was an answer was a question about why Hero's application for leave to enter had been refused. The reasons, according to the entry clearance decision letter of 2009, included reliance on a "fake" ID document. Thus, the Claimant was not saying anything about his own ID Card in the name of Pusho, he was referring to the ID document presented by his wife and denounced by the Home Office as "fake".
76. The Iraqi documents in the name of MMR dated 2013 were only produced when, as a result of the Amman interview, the claimant knew there was a problem and was seeking to marry up his accounts. The Iraqi Embassy document does no more than verify that the Nationality Certificate says what it says. The Iraqi documents may be authentic, in the sense that they were produced by the Iraqi authorities, but they cannot carry any real weight as evidence of identity given the circumstances in which they were obtained, and the apparent ease with which false Iraqi identity documents can be obtained, on the Claimant's own case.
77. Ms Walker points to the Claimant's explanation for the appearance of the status "Bachelor" on the 2013 ID Card and submits that the explanation does not work, in the light of the Lebanese marriage document in the name of MMR. A better explanation would be, she submits, that the Claimant did not want to inform the Iraqi authorities that he was married to Hero, as this might have prompted enquiries about his wife having been married to someone of a different name.

Discussion and findings

78. I have reached the clear conclusion that the Defendant was right to determine that the Claimant is in reality the individual born as Pusho, in Erbil. I find that in September 2001 the Claimant falsely and fraudulently represented to the Home Office that he was MMR born in Mosul, and that those were representations that continued in force and effect up to the time the Claimant was granted citizenship. I have already explained my conclusion that the representation as to place of birth was material to the grant of citizenship.
79. I reject as wholly incredible the Claimant's evidence that he arrived in the UK in possession of an Iraqi identity document in the name of MMR, which was taken from him by the Home Office and not returned. First, that is an inherently improbable account. Secondly, the Claimant made a series of statements to the authorities in and after 2001 that he had no passport and had not been issued with Iraqi documents. If the claim now made were true he would surely have said otherwise, and applied for the return of his ID document by the Home Office. Further and alternatively, he would have sought a replacement ID document from the Iraqi authorities at an early stage. In fact, he did not seek any Iraqi ID document in the name MMR until mid-2013, after he knew that his identity was under scrutiny by the British authorities.
80. Moreover, the Claimant has given a series of different accounts of events. When these proceedings were started the Claimant alleged in his Grounds that he had given "his Iraqi identity documents" (plural) to the UK authorities on arrival. Within a month or so he said through his solicitors he had given in his passport. Confronted with his earlier inconsistent statements he has changed his account yet again. I note that in addition to the valid points made by Ms Walker in this regard, the Claimant relies on a statement by his father-in-law that attributes to the Claimant an account of events which is inconsistent with his own evidence. Mr Ahmed reports that the Claimant told him in 2007 that "all his Iraqi documents had been taken from him in the UK".
81. The claim that the Claimant presented an Iraqi ID document in the name of MMR in 2001 is not just improbable, it is unworthy of belief. It is much more probable, and I find, that the Claimant arrived with no passport or identity documentation, and that this was a deliberate ploy which he adopted on the advice of the agents whom he, truthfully, explained on his arrival had been paid to arrange things.
82. The reason for having no identity documents on arrival was, in my judgment, to facilitate the adoption of the false identity of MMR from Mosul. It is a reasonable and probable inference that it was known to those who arranged the Claimant's arrival that Mosul was a better place to come from than Erbil, if a person wished to claim asylum. Mr Ahmed submits that on that view it would have been enough merely to falsify the Claimant's place of birth and not his name. That, however, would have risked contradiction and exposure by reference to authentic records of the birth of Pusho in Erbil in 1983. MMR from Mosul is in my judgment probably an entirely fictitious identity, thus exposing the Claimant to much more limited risk of exposure.
83. The evidence that the Claimant's true identity is that of Pusho from Erbil is amply sufficient, in my view, to justify that conclusion. All the Iraqi documents in the case created up to the end of 2012 give that as the Claimant's identity and place of birth (where place of birth is given): the marriage certificate of January 2008, the 2009 birth certificate of the Claimant's son, and the birth certificate of Aya, the ID Card, and the Nationality Certificate of 2012. I have some doubts about the marriage certificate, given the conflicting accounts of when the marriage took place, and what happened when a marriage certificate (not necessarily the one of January 2008) was presented by Hero to the ECO in 2008. However, I find that at least the last four of the give Iraqi documents I have mentioned are authentic documents, genuinely issued by the authorities. Further, I accept that as he himself asserts, the Claimant married a woman from Erbil, and both his children were born in Erbil. The natural conclusion from all of this is that the contents of the documents are true, and the Claimant is Pusho, born in Erbil in 1983.
84. The Claimant seeks to displace that natural conclusion, by claiming that these documents are in fact the fruits of a fraud carried out by his father-in-law with his connivance, and subsequent frauds by him. I reject that contention as implausible. The various explanations given for obtaining false Iraqi ID documents in 2007 are belated, inconsistent with one another, and inherently improbable, as alleged by the Defendant. If any of these explanations were true, I would expect to have seen them advanced sooner. What was said in October 2014 was vague in the extreme. The case advanced eight months later in June 2015 was different from what went before, and the two accounts given by the Claimant and his father-in-law were not consistent with one another. I would accept as a general proposition that conditions in some parts of Iraq in 2007 were dangerous. But there is simply no credible, coherent, and consistent account that links any such dangers with any need for the Claimant to obtain fake Iraqi ID.
85. I place weight on the fact that the alleged 2007 ID Card has not been produced, and that there is no explanation offered for its absence. If such a document had come into existence there would have been no need for the 2012 ID Card. I also place weight on the rubric contained on the 2012 Nationality Certificate, quoted at [34] above. This appears to me to indicate clearly that there was a previous certificate created in 2004, containing the same identification details. This cannot on any view be reconciled with the Claimant's case. The 2004 certificate could not relate to the alleged deceased relative of the Claimant's father-in-law as it is obvious, and accepted in the Claimant's evidence, that not all the details in his ID could have matched those of the dead relative. The probability is that the 2004 certificate was obtained by the Claimant, and that it was identical to the 2012 ID because the identity details were true. I note, further, that no date or details are given of the alleged death of the relative named Pusho, other than to say it took place in a car accident. The account is uncorroborated by any document such as a death certificate, newspaper report, or other contemporaneous record.
86. I would accept that the Amman interview of April 2013 is open to criticism. Like an interview under caution, it involved eliciting an account of events from the interviewee. Unlike the standard format of an interview under caution, however, it did not involve putting the case against the Claimant to him for his response. I shall return to the interview when dealing with fairness. At this point in the discussion, however, I accept that for the reasons just given and those advanced by Mr Ahmed I need to beware of placing too much weight on what was and what was not said during that interview. I therefore hold back from attributing importance to the peculiar answer "Because of Saddam regime", which would not of course explain the adoption of a false identity in 2007. Saddam Hussein's regime was overthrown in 2003 and he died in 2006.
87. However, the most important passage in my judgment is the question and answer in which the Claimant is recorded as referring to a "fake" ID. If that is read as a reference to the Pusho ID, as submitted by the Claimant, it represents a statement made by him before the impugned decision, asserting or admitting that the Pusho identity was a false one. In my view however, read in the context of the question and the entry clearance records, the reference quite clearly was to the ID presented by Hero in 2008, which the Home Office had concluded was "fake". That is what the Claimant was referring to in that answer, and his attempt to use this passage to bolster his claim that the "Pusho" ID was false must be rejected as untrue.
88. The only documents in the evidence referring to the Claimant as MMR, other than documents he has obtained from the Defendant, are the Lebanese marriage document of December 2008, the ID Card and Nationality Certificate of 2013, and the Iraqi Embassy letter of 2014. I am doubtful of the authenticity of first of these. In any event it was, on the Claimant's own case, obtained in order to facilitate the entry clearance for Hero. Similarly, the Iraqi documents of 2013 were plainly produced in order to support a case. That is not true of any of the "Pusho" documents of 2008-2012. The Embassy letter, on analysis, does no more than confirm that the Nationality Certificate says what it says. It does not represent independent corroboration of identity.
89. My conclusion is that the documents of 2013 and 2014 were probably issued by the Iraqi authorities and in that sense are authentic, but that they carry little or no weight as evidence of identity. One reason I consider the 2013 documents are likely to be authentic is that the ID Card records the Claimant as a Bachelor. The probability is, in my view, that he requested that status to be recorded on the document in case the Iraqi authorities investigated the details given, and found that according to their records his wife was married to "Pusho". Quite how the 2013 documents were obtained is not clear, but I find that insofar as they purport to identify the Claimant as MMR with the identity details given, they are false. The probability is that they were obtained by dint of some form of fraud or corruption carried out by or on behalf of the Claimant. The Embassy Letter seems to me likely to be both authentic and innocent but as all it does is to confirm that another, bogus, document says what it says it effectively of no value.
90. It is not necessary for me to make a finding about when the Claimant received the decision letter, but I shall indicate my conclusions. I accept that the letter did not reach the Claimant in October 2013, or at all, until the summer of 2014. There is no evidence of how it was sent out, though one would expect it to have been sent in the normal course. But there is no evidence that the Claimant was resident at the address given on the letter at the relevant time. Nonetheless, the Claimant's statement is clearly wrong on this point, in so far as it says he received it in July 2014, His Grounds place the date at 4 June 2014, and his solicitors have produced a note of the document's service upon him on that date. This indicates how little reliance can be placed on the Claimant's evidence.
91. Generally, the Claimant's accounts of events are late, sparse and lacking in detail or corroboration. Even so, they are riddled with inconsistencies. When comparing the competing versions and asking myself whether the Defendant has made out a case of fraud I find the Defendant's submissions the more compelling by a significant margin.
92. For these reasons I dismiss the claim.

Fairness

93. I have explained above why fairness and rationality do not feature as grounds for a quashing order in this case, but Mr Ahmed does submit that in the absence of any authority in this area I should consider giving guidance in relation to the issue of fairness. He relies in particular on the words of Lord Mustill in R v Secrtary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560:

"… (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

94. Applied to this case, submits Mr Ahmed, those principles required that before taking the momentous decision to declare his nationality a nullity the Defendant should have given the Claimant a proper opportunity to address her grounds for doing so. The interview in Amman was short, perfunctory, and the officials did not identify its purpose in advance or during it, nor did they put to the Claimant the factors giving rise to concern. The decision to declare his citizenship a nullity was taken many months after that, without affording the Claimant any further opportunity to deal with the case against him or to provide further information. As a result of this, and the fact that the decision letter did not reach him until June 2014, the Claimant's arrest on his return to this country in March 2014 came out of the blue, which was itself unfair.
95. As I have already indicated in the course of reaching my conclusions on the merits, I have real reservations about the interview format adopted in Amman in April 2012. I consider that on the face of the record the interview is open to criticism for failing to afford the Claimant a reasonable opportunity to answer the case against him or deal with the grounds of suspicion entertained at that stage. His arrest without notice of the Defendant's decision was not necessarily the Defendant's fault; but he was not, in practice, given an opportunity to address the case against him until after the decision was made and he had been arrested. In my judgment fairness does require that before a decision of this kind is taken there should be a fuller interview, or written notice, affording the individual an opportunity to answer the case against him.
96. I add that pragmatic considerations seem to me to point in the same direction. An individual, who has been given prior notice of the case against him, has answered it, and had his answer rejected by a reasoned decision is less likely to be advised to pursue a claim such as the present or, if he does make such a claim, less likely to obtain permission to proceed. If permission is granted, the argument and decision-making will be more straightforward. It is less likely that the Claimant will be able plausibly to argue, as has been argued in this case, that the case advanced at the trial of the claim would have been put forward much sooner if only a fair opportunity had been given.

Minority

97. As noted at [3] above, it was at one stage pleaded on the Claimant's behalf that even if there was deception he should not be held responsible for it due to being a minor at the time. The point was not pursued. Rightly so in my judgment, as it would never have run on the facts of this case. The Claimant was over 18 when he obtained exceptional leave to remain, which is the first time at which the deception was operative.
98. It follows that the Claimant could not have benefited from the provisions of paragraph 55.7.5 of the Nationality Caseworking Instructions, which the Defendant has very fairly drawn to the court's attention. Paragraph 55.7.5 provides:

"If a person was a minor on the date at which they acquired indefinite leave to remain and the false representation, concealment of material fact or fraud arose at that stage and the leave to remain led to the subsequent acquisition of citizenship we will not deprive of citizenship."

99. It may very well be that the Claimant could not have benefited from that paragraph in any event, because it falls within Part 1 of Chapter 55, which is concerned with deprivation, and not Part 2, which deals with nullity. I note that the minority point does not appear to have been raised in Kaziu, where the lead claimant was 16 when he claimed asylum. As it is not a point that arises on the facts of this case, and has not been the subject of argument, I say no more about it.

Note 1   Various spellings of the name appear in the documents in this case but as it is a foreign name, and it is clear that all the various renderings refer to the same place I adopt uniform spelling in referring to the content of the documents.    [Back]