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
		15/10/2015

Mr Justice Walker:

Table of Contents

A. Introduction	1
B. The common ground and the issues	6
C. The family's account	12
D. UK government stance prior to these proceedings	32
D1. The British High Commission in 1978	32
D2. The Consular Department in November 2011	39
D3. The Counter Fraud Team in December 2012	42
D4. The Liverpool Nationality Enquiries Team in August 2013	44
D5. HMPO Delhi in October 2013	46
E. Later correspondence and these proceedings	47
E1. The letter before claim: 23 December 2013	47
E2. The reply: the FCO OPMU January 2014 letter	48
E3. Claim form and detailed statement of grounds	50
E4. Procedural steps prior to 31 July 2014	54
E5. Summary grounds of defence: 31 July 2014	56
E6. Preparations for trial	57
E7. The trial: 7 July 2015	59
E8. My assessment of the witnesses	67
F. Observations	68
F1. The identity concession	68
F2. Careful scrutiny and guarding against fraud	72
F3. Assertions as to mandatory requirements	74
F4. Failure to engage	76
F5. The interview	77
G. My findings on the crucial questions	80
G1. The first crucial question: who fathered the siblings?	80
G2. The second crucial question: when was Deelavathi born?	87
G3. The third crucial question: were her parents married?	94
H. Conclusion	98

A. Introduction

1. The central question that I must decide is whether the claimant, Ms Deelavathi Bondada, is a British citizen by descent. She uses her maiden name. In this judgment I refer to a number of members of the Bondada family ("the family"). For convenience, and with no disrespect intended, I shall refer to them by their first names.
2. These proceedings were needed because applications by Deelavathi for a British passport were rejected. The proceedings were originally brought against two defendants. The first was named as "The Passport Office, British High Commission New Delhi". The second was named as "HM Passport Office", with an address in London. On 7 September this year, so as to comply with the Crown Proceedings Act 1947, a consent order was made altering the names of the defendants. The Foreign and Commonwealth Office was substituted as the first defendant to reflect the fact that the British High Commission in New Delhi is part of that department of state. The Home Office was substituted as second defendant as it has responsibility for HM Passport Service. On 22 September, however, the Foreign and Commonwealth Office advised the court that it was not an appropriate defendant. The result was that the scheduled handing down of judgment on 23 September was postponed. I have now received new evidence concerning a change in the machinery of government which took effect on 1 April 2011. On that date responsibility for the issue of British passports overseas exercised under the Royal Prerogative by the Foreign Secretary was transferred to the Home Secretary. There was a transitional period which began on 1 April 2011. During that period the issue of British passports overseas was handled by officials in the Foreign and Commonwealth Office's Overseas Passport Management Unit on behalf of the Home Office's Identity and Passport Service. Thus in the present case decisions refusing Deelavathi a passport were taken by Foreign and Commonwealth Office officials on behalf of the Home Secretary. Once these proceedings were begun, instructions for the conduct of the proceedings were given by Home Office officials on behalf of the Home Secretary. On 9 October 2015, in the light of the new evidence, I made a consent order substituting the Home Secretary as the sole defendant in the proceedings.
3. At the hearing before me on 7 July 2015 Mr Adrian Berry appeared on behalf of Deelavathi. In order to defend the claim Ms Clare Parry appeared, instructed by the Government Legal Department. I assumed at the hearing that she and those instructing her acted on behalf of the defendants named in the claim form. This was a mistake on my part: Ms Parry and those instructing her acted on behalf of the Home Secretary. I am grateful to the legal teams on both sides for the assistance which was provided to me before, during and after the hearing.
4. For the reasons given below I have no doubt that the central question in this case must be answered in favour of Deelavathi: she is a British citizen by descent. As part of my examination of that question I have had regard to objections to Deelavathi's claim that were raised by UK government officials during the period from late 2011 onwards. During that period Deelavathi's advisers submitted evidence to the Home Office's Liverpool Nationality Enquiries Team. In a letter dated 29 August 2013 a senior caseworker for UK Visas and Immigration, based in that team, stated that the Home Secretary's opinion, subject to further enquiries by such office as might deal with an application for a passport, was that Deelavathi was indeed a British citizen by descent.
5. In expressing that opinion the Liverpool Nationality Enquiries Team acted entirely honourably. As will be seen, however, the stance taken on behalf of the Home Secretary on other occasions during the period from early December 2012 onwards, and throughout these proceedings, is a stance which cannot be described as honourable. From early December 2012 onwards, both before and after the letter of 29 August 2013, untenable objections were taken to Deelavathi's claim. The stance taken in those objections refused to engage with compelling DNA evidence. The result was that this stance effectively made an accusation that Deelavathi's mother has lied about the parentage of her children for more than 60 years. At a very late stage in the present proceedings the Home Secretary accepted the DNA evidence. Nevertheless the stance taken on behalf of the Home Secretary when rejecting Deelavathi's claim has, without a shred of evidence to support it, continued to make the same effective accusation. The conduct of the UK government in this regard has been grotesque. I add that in making these observations I do not criticise Ms Parry and I do not criticise the legal team in the Government Legal Department. They have approached their task with all such professional courtesy as is consistent with seeking to defend an impossible position.

B. The common ground and the issues

6. Three important features of the evidence are now common ground. The first, which I shall refer to as "the archival records concession", is that archived records show that Mr Chandraiah Bondada ("Chandraiah") was registered as a citizen of the United Kingdom and Colonies on 21 December 1967.
7. The second, which I shall refer to as "the DNA evidence concession", is that DNA analyses show three things:

(1) that the woman known as Mrs Ganikamma Bondada ("Ganikamma") is Deelavathi's mother;

(2) that Ganikamma is the mother of Deelavathi's eldest brother Dr Kurma Rao Bondada ("Kurma"), her middle brother Mr Kandeswara Rao Bondada ("Kandeswara"), her youngest brother Mr Tata Rao Bondada ("Tata"), and her sister Ms Punyavathi Murala ("Punyavathi"); and

(3) that Deelavathi, Kurma, Kandeswara, Tata, and Punyavathi are full siblings: not only do they share Ganikamma as their mother, they also share the same father.

8. The third, which I shall call "the identity concession", is that Mr Berry's lay client is indeed Deelavathi.
9. As regards her claim to British citizenship, Deelavathi makes three crucial assertions:

(1) her father was Chandraiah ("the first crucial assertion");

(2) she was born after 21 December 1967 ("the second crucial assertion"); and

(3) Chandraiah and Ganikamma were married prior to her birth ("the third crucial assertion").

10. The law governing the claim is not in dispute. Under section 11(1) of the British Nationality Act 1981 ("the 1981 Act") Deelavathi became a British citizen if, on commencement of the 1981 Act, she was a citizen of the UK and Colonies and had the right of abode in the United Kingdom under the Immigration Act 1971 ("the 1971 Act"). Both of these requirements will be met (the former by virtue of section 5 of the British Nationality Act 1948, and the latter by virtue of section 2 of the 1971 Act as enacted) if the three crucial assertions are correct.
11. The three crucial assertions are put in issue on behalf of the Home Secretary and issues thus arise in those three respects. Whether the crucial assertions are correct is for the court to decide: see Harrison v SSHD [2003] EWCA Civ 432, [2003] INLR 284. It is common ground that, save as regards one possible exception, it is for Deelavathi to prove the relevant facts on the balance of probabilities. The possible exception is the presumption of legitimacy. For reasons given below I do not need to rely upon that presumption in order to reach my conclusion.

C. The family's account

12. The family say that Chandraiah and Ganikamma were born and grew up in the Indian village of Nagullanka, where they were married in March 1942 in accordance with Hindu rites. It was an arranged marriage: he was 24 and she was 12. Nagullanka lies to the north east of Chennai, in the district of East Godavari and in the state of Andrha Pradesh. It was in Nagullanka that their first child Laxmibai, now deceased, was born in 1945.
13. During the 1950s Chandraiah found work as a foreman for a shipping company based in what was then known as Rangoon, Burma. Ganikamma and Laxmibai joined him there. It was there that Chandraiah and Ganikamma's sons Kurma and Kandeswara were born, and that their son Tata was conceived.
14. While Ganikamma was carrying Tata she returned to Nagullanka, where she brought up all her and Chandraiah's children. Chandraiah continued to work abroad, but returned at intervals to spend time with the family in Nagullanka. Their second daughter Punyavathi was born there. Eventually Chandraiah emigrated to England, where Kandeswara joined him in 1966.
15. After Chandraiah had been granted registration as a citizen of the UK and Colonies in 1967 he returned to Nagullanka in 1968 and stayed there for over a year. During that time Chandraiah and Ganikamma's youngest child, Deelavathi, was born in Nagullanka on 6 November 1969. Chandraiah registered her birth on 26 December 1969. He then returned to London.
16. Deelavathi was brought up in Nagullanka. She went to primary school there and attended her first years of secondary school nearby. For the last two years of her secondary schooling she stayed with Tata in Suryapet, Nalgonda district, and finished her secondary school there.
17. Ganikamma and Deelavathi came to England in November 1978 to join Chandraiah. At the time Deelavathi was 9 years old. The three of them lived together in Myrdle Street, London E1. However Ganikamma could not adjust to the cold weather in the UK. She and Deelavathi returned to India in December 1979.
18. Kurma qualified as a doctor in India. He undertook postgraduate medical training in England. After working in hospitals in England and Wales he became a Fellow of the Royal College of Psychiatrists. He was for 22 years a consultant psychiatrist in King's Lynn. Although he is now retired he remains a Second Opinion Appointed Doctor under section 58 of the Mental Health Act 1983 and a part time medical member of the First-tier Tribunal (Mental Health).
19. Tata undertook both undergraduate and postgraduate studies. He holds Masters degrees in Economics and in Library and Information Science. Until he retired in 2012 he was a lecturer at Sri Venkateswara College in Suryapet.
20. Chandraiah decided to retire during the mid-1980s in India. He remained a British citizen until his death in 2001. Meanwhile Deelavathi married Mr Ramanamurthy Pulusuganti and went to live with him, eventually in Kakinada, a port to the north-east of Nagullanka. Unfortunately he was a violent man: Deelavathi fled after she was badly beaten by him, leaving her personal possessions, clothes, documents, photos, and letters at her marital home. She was in due course divorced. She and her children moved to be with Ganikamma in Nagullanka, where they received and continue to receive financial support from Kurma and Tata.
21. By chance Kurma learnt that Deelavathi had a claim to British citizenship by descent. It was his idea to apply for a British passport for her for the future.
22. Kurma obtained a copy of archived evidence of Chandraiah's registration as a citizen of the United Kingdom and Colonies. The marriage in 1942 had not been registered. The British High Commission consular section in New Delhi advised Kurma that, as his father had died, sworn declarations from two witnesses of his parents' marriage would be accepted. When Kurma was visiting India his mother recalled people who attended her marriage and were still alive. Sworn declarations were obtained in August 2006 from Mrs Nakka Venkayamma, aged 85, and Mr Valluru Venkanna, who described his age as "about 80 years". All these documents, along with an Indian passport issued to Ganikamma in 1978 ("Ganikamma's 1978 passport") and naming Deelavathi as her daughter, Deelavathi's birth certificate and a declaration sworn by Deelavathi and countersigned by her lawyer, were submitted in April 2009 to the British Consular Officer in Chennai.
23. After two unsuccessful attempts the application form was accepted for processing by the British High Commission in Delhi on 30 December 2009. There was then a long delay. Only after the intervention of Kurma's MP was a substantive letter of reply eventually sent by the Consular Department of the British High Commission in Delhi on 14 November 2011 ("the November 2011 Consular Department letter"). Although the letter did not say so, it was in fact written on behalf of the Home Secretary. The application was rejected. As the family understood it, the principal reasons were that Deelavathi could not conclusively prove her identity and had failed to establish her relationship with Chandraiah.
24. A second application was made on 10 September 2012. It was accompanied by certified copies of the DNA analyses described in section B above. It was also accompanied by a detailed statement made by Deelavathi dealing with issues raised in the November 2011 Consular Department letter.
25. On 12 December 2012 the Counter Fraud Team of the British High Commission in Delhi sent a substantive letter of reply ("the December 2012 Counter Fraud Team letter"). Again, although the letter did not say so, it was in fact written on behalf of the Home Secretary. The substantive parts of the letter were, word for word, identical to those of the November 2011 Consular Department letter. No mention was made of the DNA analyses. Nor was any mention made of Deelavathi's detailed statement.
26. At this point Deelavathi's solicitors sought an opinion from Mr Berry. A submission prepared by Mr Berry was supplied to the Liverpool Nationality Enquiries Team. Among other things it made reference to entries in Ganikamma's 1978 passport made by the British High Commission in October 1978. Those entries stated that permission was given to Ganikamma to enter the UK to join her husband, accompanied by Deelavathi to join Deelavathi's father.
27. As noted in section A above, the Liverpool Nationality Enquiries Team reply dated 29th August 2013 ("the August 2013 Home Office letter") warned that the opinion expressed was subject to further enquiries by such office as might deal with an application for a passport. With that caveat, the August 2013 Home Office letter stated that the Home Secretary's opinion, on the basis of the evidence submitted, was that:

… Deelavathi Bondada is a British citizen by descent under section 11(1) of the British Nationality Act 1981. 

...

28. A third application to the British High Commission was made on 16 September 2013. As Mrs Nakka Venkayamma and Mr Valluru Venkanna had died, it was accompanied by statutory declarations of two others who had been present at the marriage in 1942. These declarations were by Mrs Mangam Rathama and Mr Chinta Venkanna, and were made in August 2008 when they were aged 85 and 80 respectively. It was also accompanied by, among other things, Mr Berry's submission, the August 2013 Home Office letter, a statutory declaration by Ganikamma, and further copies of Deelavathi's birth certificate in Telugu and in English translation.
29. The British High Commission in Delhi asked Deelavathi to attend an interview in Chennai on 22 October 2013. She expressed anxiety about attending the interview on her own. Permission was requested for a nephew to be with her for support during the interview, but this request was rejected by the consular section.
30. After the interview Deelavathi told Kurma that she had been nervous and had not understood some of the questions even though they had been translated into Telugu. She said that for the fear of saying something inappropriate she chose to say 'did not know'. She added that she did not admit to the interviewing officer that she was nervous.
31. The day after the interview a letter dated 23 October 2013 was sent by HM Passport Office, British High Commission New Delhi ("the October 2013 HMPO Delhi letter"). Again, although the letter did not say so, it was in fact written on behalf of the Home Secretary. It rejected Deelavathi's application.

D. UK government stance prior to these proceedings

D1. The British High Commission in 1978

32. Section C above notes that Mr Berry's submission referred to entries made by the British High Commission in Ganikamma's 1978 passport. What happened in this regard is clear from an examination of that passport.
33. Ganikamma's 1978 passport at page 2 identified Deelavathi as her child, born on 6 November 1969, and at page 5 identified Chandraiah as her husband.
34. The entries referred to in Mr Berry's submission were made by affixing to Ganikamma's 1978 passport an Entry Certificate No. 3087/78 ("the Entry Certificate"). After it had been affixed two annotations were made by the British High Commission. The first ran across the Entry Certificate and pages 8 and 9 of the passport. It stated:

SETTLEMENT /TO JOIN HUSBAND /ACCOMPANYING

MOTHER AND TO JOIN FATHER …

35. The second annotation appeared immediately below the Entry Certificate, straddling pages 8 and 9 of Ganikamma's 1978 passport. It stated:

ISSUED IN RESPECT OF HOLDER BONDADA GANIKAMMA and one daughter DEELAVATHI.

36. Both the Entry Certificate and these annotations were signed by an official of the British High Commission on 9 October 1978.
37. On 15 November 1978 an Immigration Officer at Heathrow stamped page 9 of Ganikamma's 1978 passport to record that Ganikamma and Deelavathi had been given leave to enter the United Kingdom for an indefinite period.
38. I have no doubt, and the Home Secretary has identified no reason to doubt, that prior to affixing the Entry Certificate and making the annotations the British High Commission had satisfied itself:

(1) of the accuracy of the statements in Ganikamma's 1978 passport that Ganikamma was Chandraiah's wife, and that Deelavathi was Ganikamma's daughter born on 6 November 1969; and

(2) that Deelavathi was the legitimate daughter of Chandraiah and Ganikamma.

D2. The Consular Department in November 2011

39. Section C above describes the family's perception of what was said in the November 2011 Consular Department letter. The letter itself stated that the claim to a passport was rejected because the documents submitted had not conclusively proved two things, namely:

… that you are the true holder of the identity and that you are related to your claimed father as mentioned in your application. …

40. It is convenient at this point to set out my own analysis of the reasons given in the letter for concluding that these two things had not been proved. They appear to me to fall into 7 categories:

(1) Chandraiah's original registration documents had not been submitted;

(2) the passport held by Chandraiah at the time of Deelavathi's birth had not been submitted and "therefore we are unable to ascertain whether your parents were together at the time of conception or not";

(3) the date of birth on Deelavathi's school certificate differed from that on her birth certificate and passport application form;

(4) the school records submitted were not contemporaneous documents;

(5) there had been a failure to submit "progressing photographs of yourself since your childhood for time spent with parents and relatives";

(6) Deelavathi's parents' marriage certificate had not been submitted, with the result that the only details available were those in the statutory declarations;

(7) no reason had been given for waiting so long and deciding to apply for a passport only after the death of Deelavathi's father.

41. The paragraphs setting out these reasons were followed by a further paragraph, which appears to me to have been intended to summarise the points I have identified. It was in these terms:

You have not submitted any documents through which your relation with your father can be established. The documents you have provided unfortunately do not conclusively prove that you are the true holder of the identity and that you are related to your claimed father as mentioned in your application. We also requested you to submit additional documents, which you failed to do. I am therefore not satisfied that you are entitled to a British passport. Under these circumstances, the application falls to be refused, and I have closed the file.

D3. The Counter Fraud Team in December 2012

42. I have compared the December 2012 Counter Fraud Team letter with the November 2011 Consular Department letter. The comparison bears out what is said by the family: the substance of the two letters is identical, word for word.
43. Moreover:

(1) no explanation has ever been given for this;

(2) no explanation has ever been given for the failure to refer to the DNA analyses; and

(3) no explanation has ever been given for the failure to refer to Deelavathi's detailed statement answering the points identified in section D2 above.

D4. The Liverpool Nationality Enquiries Team in August 2013

44. The August 2013 Home Office letter, referred to in sections A and C above, was written on 29 August 2013 by the Liverpool Nationality Enquiries Team to Deelavathi's solicitors. It stated, using the words described in section C, that the Home Secretary's opinion was that Deelavathi was a British citizen by descent. 
45. The letter went on to explain that evidence of status for immigration purposes must take the form either of a certificate of entitlement or of a UK passport describing the holder as a British citizen. The last sentence of that letter stated:

Please note that the issuing office may conduct further enquiries to verify the identity of the applicant and/or those related on whom the claim to nationality may rely.

D5. HMPO Delhi in October 2013

46. The October 2013 HMPO Delhi letter said that the documents and photos submitted on 16 September 2013 had not established Deelavathi's claimed relationship and identity, and that in interview Deelavathi had been unable to provide information to do so. Accordingly Deelavathi's application was again rejected.

E. Later correspondence and these proceedings

E1. The letter before claim: 23 December 2013

47. The letter before claim was sent by Deelavathi's solicitors to the British High Commission New Delhi on 23 December 2013. It noted what had been said in the October 2013 HMPO Delhi letter about lack of information, and observed that in fact there was a welter of documentary evidence and DNA evidence to support the claim. The remainder of the letter of claim comprised a detailed recapitulation of points made in Mr Berry's submission.

E2. The reply: the FCO OPMU January 2014 letter

48. The reply to the letter before claim was a letter sent on 17 January 2014 on the letter heading of the Foreign and Commonwealth Office's Overseas Passport Management Unit in London ("the FCO OPMU January 2014 letter"). It was written by the deputy head of that unit. The letter effectively maintained the stance taken in the October 2013 HMPO Delhi letter. The new evidence described in section A above establishes that the letter was in fact written on behalf of the Home Secretary. The letter did not expressly state this. However, immediately below the closing description of the author as "Deputy Head, Overseas Passport Management Unit", the following words appeared in bold lettering:

The Foreign Commonwealth Office delivering passports to British Nationals overseas on behalf of Her Majesty's Passport Office.

49. The FCO OPMU January 2014 letter included assertions which I number for convenience:

(1) that the documents required when submitting a British passport application "are determined by Her Majesty's Passport Office and no other documents can be submitted in their place";

(2) that privately commissioned DNA test results are never considered;

(3) that the Overseas Passport Management Unit was unable to issue a passport "without all the required mandatory documents".

E3. Claim form and detailed statement of grounds

50. The claim form was issued on 21 February 2014. A detailed statement of grounds was settled by Mr Berry and accompanied the claim form.
51. The detailed statement of grounds noted that relevant questions were to be decided by the court and gave rise to no discretion or margin of appreciation. After reiterating other points made in Mr Berry's submission, it summarised what had been said in the FCO OPMU January 2014 letter.
52. In paragraph 48 the detailed statement of grounds asserted that the refusal to issue a British passport to Deelavathi was "not instrumentally connected to the documentary and DNA evidence available".
53. Paragraph 49 (mistakenly numbered 44) of the detailed statement of grounds criticised the then defendants for failure to engage with the submissions, relying on evidential hurdles when there were no mandatory ways of proving identity and family relationships, and failing to provide the requisite degree of procedural protection to those asserting their constitutional rights.

E4. Procedural steps prior to 31 July 2014

54. Time for filing an acknowledgement of service was extended to 28 April 2014. The Treasury Solicitor wrote a letter to the court on 13 May 2014. The letter explained that the Treasury Solicitor was without instructions, and was therefore unable to seek a further extension of time.
55. In the absence of an acknowledgement of service or summary grounds of defence, HHJ Anthony Thornton QC by order dated 22 July 2014 granted permission to proceed. His order required "the defendant" to address Deelavathi's submissions, and made provision for rival submissions to be lodged as to directions for trial.

E5. Summary grounds of defence: 31 July 2014

56. Summary grounds of defence were settled by the Treasury Solicitor. They were filed, along with an acknowledgement of service, on 31 July 2014. In the summary grounds of defence, among other things:

(1) it was said that deficiencies in the information submitted had the consequence that passport officials were unable to establish with sufficient certainty both (a) identity and (b) eligibility for a British passport;

(2) paragraphs 5 and 10 repeated assertions in the FCO OPMU January 2014 letter about "mandatory" documentation, but the summary grounds of defence identified no basis in law for these assertions;

(3) no reference was made to the DNA analyses;

(4) paragraph 6 complained about the "paucity" of, and conflicting information in, material supplied by Deelavathi, which included:

(a) documents displaying different names;

(b) documents displaying different dates of birth;

(c) copies of documents as opposed to original documents; and

(d) copies of her father's passports with the travel pages missing;

(5) paragraph 8 stressed that Deelavathi had not provided additional documents at the interview;

(6) paragraph 9 said that Deelavathi was unable, during the interview, to provide anything other than very limited information about her father, her parents' marriage, her father's life in the UK, his death or even to explain the conflicting names and dates of birth on the supporting documentation that she had submitted;

(7) reference was made to a transcript of the interview; and

(8) paragraph 14 noted that the burden was on an applicant for a British passport to demonstrate that relevant requirements were met.

E6. Preparations for trial

57. Directions for trial were made by HHJ Bidder by order dated 5 November 2014. In accordance with those directions witness statements of Kurma and Tata were served. A skeleton argument settled by Mr Berry for Deelavathi was served in March 2015. At that stage the trial was expected to take place in April 2015. The trial date was then, however, put back by consent.
58. A skeleton argument was settled by Ms Parry on 28 June 2015. It was in this skeleton argument that the archival records concession, the DNA evidence concession, and the identity concession were first made. Also in this skeleton argument Ms Parry identified Deelavathi's three crucial assertions as the issues which the court needed to decide, albeit not in the order that I have adopted in section B above. Her submissions on each of those issues were set out in turn.

E7. The trial: 7 July 2015

59. At the start of the trial on 7 July 2015, during the course of short opening submissions by Mr Berry, Ms Parry confirmed that Deelavathi's claim would succeed if the court were satisfied that Deelavathi's three crucial assertions were correct. Kurma was then called to give evidence. In his evidence in chief he confirmed what was said in his witness statement. In large part this set out the family's account as I have described it in section C above. It also noted that in 2013 Deelavathi's lawyer had countersigned Deelavathi's application and later, at the request of the British High Commission, had confirmed her identity.
60. In addition, Kurma:

(1) produced as exhibit "A" a photocopy of the register entry, signed by Chandraiah on 26 December 1969, for the birth to Ganikamma on 6 November 1969 of a female child of which he was the father;

(2) accepted that Ganikamma was married at the age of 12, with the consequence that Mangam Rathamma and Chinta Venkanna must have been mistaken in saying that when Ganikamma married they had known her for 16 and 14 years respectively;

(3) commented that the earlier statutory declarations of Nakka Venkayamma and Valluru Venkanna correctly stated that they had known Ganikamma for 12 years at the time of her marriage, and added that the statutory declarations of Mangam Rathamma and Chinta Venkanna had been made by individuals who were 85 and 80 respectively and were reliant on their memory;

(4) accepted that in 2013 he had been responsible for submitting an English version of Deelavathi's birth certificate which gave the month of her birth as December rather than November 1969, and commented in that regard that there had been a mistake when translating the Telugu entry.

(5) added that when Deelavathi was born he, Kurma, had been at medical college in India, and that he had visited his mother and seen her and Deelavathi within weeks or days of the birth;

(6) produced the DNA analyses.

61. In cross-examination Kurma:

(1) said that he had not noticed the discrepancy in the birth certificate in 2013;

(2) said that the photocopy at exhibit A had been produced in August 2014, and that he was unaware that it had not been provided to the UK government until today;

(3) accepted that exhibit A did not show the registration number 100/69 which appeared on Deelavathi's birth certificates;

(4) accepted that exhibit A gave Ganikamma's age at confinement as 38 when it should have said 39;

(5) accepted that the statutory declarations of Nakka Venkayamma, Valluru Venkanna, Mangam Rathamma and Chinta Venkanna all said that Chandraiah died on 9 April 2002 when in fact he had died on 9 April 2001;

(6) accepted that Chinta Venkanna's statement described his age as 80 in August 2008, with the result that he would have been 14 in 1942 and could not have been correct when he said that he had known Chandraiah for 20 years at the time of the wedding in 1942;

(7) stated that his father and mother had told him that Chandraiah was his father, adding that his own passport named Chandraiah as his father.

62. In response to questions from me Kurma produced Ganikamma's 1978 passport and took me through the entries made in it.
63. The next witness was Tata, who had flown to London from India in order to give evidence. In examination in chief he confirmed his witness statement, which in large part set out the family's account as described in section C above. It added that neither he nor his siblings had progressive photographs while they were growing up with their parents. Photography in those days was very expensive. His statement was accompanied at Annexure 5 by photographs of:

(1) the family when Deelavathi was a few months old in 1969/70 ("photo 1");

(2) himself, with his mother and Deelavathi before they went to London in 1978 ("photo 2");

(3) Deelavathi at Kurma's marriage ceremony in 1981 ("photo 3");

(4) the family including Deelavathi at the time of Kurma's marriage in 1981 ("photo 4").

64. Also in his evidence in chief Tata described visiting the registry of births, seeing the bound volume and arranging for the relevant page to be copied so as to produce what is now exhibit A. The date of birth given in the bound volume, although not entirely clear, was 6 November 1969.
65. In cross-examination Tata:

(1) accepted that a statement made by Ganikamma on 12 April 2013 had wrongly given a date of 1956 instead of 1954 for his birth and her return to journey to India while pregnant with him;

(2) stated that Deelavathi had lived with him in 1984 and 1985;

(3) accepted that a statement made by Deelavathi on 6 June 2013 was mistaken in saying that during her stay with him she had been aged between 16 to 18, whereas in fact she had turned 16 at the end of 1985;

(4) accepted that while in photo 1 Deelavathi was sitting on Chandraiah's lap and appeared to be about a year old, Ganikamma's statement dated 12 April 2013 said that in December 1969 Chandraiah returned to London – in this regard Tata added that he could not recollect when his father had returned to London.

66. After hearing submissions from counsel I reserved judgment.

E8. My assessment of the witnesses

67. Each witness gave evidence with care. Points put to them in cross-examination were considered with care, and were candidly accepted if the point was valid. Where there was a point to be made in response this was done with courtesy and restraint. I have no hesitation in concluding that both witnesses are individuals of the utmost integrity, and that their evidence was both truthful and frank.

F. Observations

F1. The identity concession

68. The identity concession appears at paragraph 43 of Ms Parry's skeleton argument. It was worded in this way:

The Defendant's concerns about the evidence produced in this case surround whether the Claimant can show she is a British Citizen, not whether the Claimant can show she is Deelavathi Bondada.

69. This was a substantial U-turn. From November 2011 until service of Ms Parry's skeleton argument the then defendants had said that they were not satisfied of Deelavathi's identity: see sections D2, D3, D5, E2 and E5 above.
70. No explanation has been given for this change of mind. Nor has any satisfactory explanation been given for the consistent refusal up to this point to accept that Deelavathi is who she says she is.
71. In paragraphs 44 and 45 of Ms Parry's skeleton argument a contention was advanced concerning how Deelavathi had described herself. It was said to be a matter of significance for the purposes of the three crucial assertions that Deelavathi had submitted documents describing her as Levatheela Bondada and as Pulusuganti Deelavathi. I am not persuaded by this contention. First, these two descriptions had been fully explained: Levatheela was used because Deelavathi is not a Hindu name, and Pulusuganti was Deelavathi's married name. Second, it has rightly – at a very late stage – been accepted that neither of these two matters warrant a conclusion that Deelavathi is not who she says she is. If they do not warrant that conclusion, it is difficult to see the logic in suggesting that in any way they detract from her case on the three crucial assertions.

F2. Careful scrutiny and guarding against fraud

72. I bear in mind that British citizenship is a very substantial benefit, and that a claim to citizenship should be scrutinised with particular care.
73. The danger of fraud is a further reason why such claims should be scrutinised with care. In that regard I also bear in mind that experience has shown that India is one of a number of countries where fraudulent documentation may be readily obtainable. In the present case the UK government does not suggest, and has not identified any ground for concern, that any of the documentation submitted on behalf of Deelavathi is fraudulent. I do not treat this as in any way absolving the court from the need to scrutinise the claim with particular care.

F3. Assertions as to mandatory requirements

74. Mr Berry's May 2013 submission went into considerable detail in order to make good his contention that there are no mandatory requirements as to the evidence that can be relied upon in support of a claim to British citizenship. Ms Parry has not disputed that contention.
75. When the deputy head of the Foreign and Commonwealth Office's Overseas Passport Management Unit in London came to write the FCO OPMU January 2014 letter he, like the author of the October 2013 HMPO Delhi letter, had the benefit of Mr Berry's May 2013 submission. In addition the author of the FCO OPMU January 2014 letter was tasked specifically with replying to the letter before claim, which had highlighted this aspect of the matter. Despite this the FCO OPMU January 2014 letter made no reference to the analysis in Mr Berry's submission and in the letter before claim. Instead, giving no justification whatever, the author of the FCO OPMU January 2014 letter made the three assertions set out in section E2 above. Not one of those assertions had any justification in law.

F4. Failure to engage

76. It was not only on the question of mandatory requirements that those acting on behalf of the Home Secretary failed to address what was said on behalf of Deelavathi. The December 2012 Counter Fraud Team letter simply ignored the DNA analyses and Deelavathi's detailed statement. The summary grounds of defence did the same.

F5. The interview

77. Prior to the interview relevant officials knew that Deelavathi's account was that she had been a victim of physical violence from her husband, had had to flee from the matrimonial home, and was reliant on financial support from Kurma and Tata. They, or other officials, also knew that the preparation of evidence in support of her claim was being co-ordinated by Kurma. In these circumstances it is difficult to understand how it was thought appropriate to decline the request for Deelavathi to be supported at interview by her nephew.
78. No notice was given to Deelavathi of the questions asked of her at the interview. Those questions seized upon minor discrepancies and demanded answers from her as to how those discrepancies had come about.
79. In these circumstances it is not surprising that Deelavathi responded that it was her brother who had submitted all the documents. Ms Parry criticised her for not providing better information about her knowledge of her father and his life. However despite those criticisms the Home Secretary now accepts that Deelavathi is indeed who she says she is. To my mind this rightly confirms that I can place little weight upon the interview as a basis for criticising Deelavathi.

G. My findings on the crucial questions

G1. The first crucial question: who fathered the siblings?

80. The November 2011 Consular Department letter complained that the passport held by Chandraiah at the time of Deelavathi's birth had not been submitted. It said in this regard:

… therefore we are unable to ascertain whether your parents were together at the time of conception or not …

81. In this way UK government officials raised the possibility that Deelavathi might not be Chandraiah's daughter. The family did not have the passport held by Chandraiah at the time of Deelavathi's birth. The only copy that it had was of the initial pages only. This meant that they could not produce the rather limited evidence which the November 2011 Consular Department letter had sought. Accordingly the family decided to do better than had been sought, and to put the matter beyond doubt by obtaining DNA evidence.
82. In my view the family did not need to do this. The Consular Department already had the evidence that it needed, for it had had since April 2009 the original of Ganikamma's 1978 passport. If those dealing with the matter had studied that passport at any time between April 2009 and November 2011 they would have seen that their own predecessors had in October 1978 accepted that Chandraiah was Deelavathi's father. No reason has ever been suggested for thinking that the British consular officials in October 1978 might have failed to carry out all appropriate checks. Accordingly, even without DNA evidence, I would have held on the balance of probabilities that the conclusion reached in October 1978 remained valid today.
83. If there had been any reason to doubt this, however, the DNA analyses provide an overwhelming answer to any such doubt. At a very late stage in the proceedings the Home Secretary has conceded that these analyses show that Deelavathi is the daughter of Ganikamma, that Ganikamma is also the mother of Kurma, Kandeswara, Tata and Punyavathi, and that these siblings and Deelavathi have the same father.
84. In these circumstances it is both astonishing and grotesque that those acting on behalf of the Home Secretary have put in issue whether that same father was Chandraiah. The Home Secretary's stance is astonishing because it necessarily asks the court to say that Ganikamma may have had a secret lover who was the biological father of Kurma, Kandeswara and Tata while she lived with Chandraiah in Burma in the 1950s, and after the birth of Tata in India had the same secret lover who was the father of her remaining two children, Punyavathi and Deelavathi. This unsupported speculation is so far-fetched as to be absurd. It is not a real possibility, let alone a possibility of such substance as to enable the court to make a finding that Deelavathi has not shown on the balance of probability that Chandraiah was her father.
85. However it is not merely an astonishing stance. The Home Secretary's stance in this regard is grotesque. The finding that the Home Secretary urges upon the court would amount to a repulsive distortion of evidence that had repeatedly been put before those acting for the Home Secretary, had rightly been accepted on behalf of the Home Secretary by the Liverpool Nationality Enquiries Team, and had with unfailing courtesy and meticulous care been explained repeatedly to others acting on behalf of the Home Secretary. With not a shred of evidence capable of justifying such a stance, those acting on behalf of the Home Secretary have chosen to impugn the fidelity of a blameless 86 year old woman and to impugn the parentage of her five remaining children. Those acting on behalf of the Home Secretary have stopped short of explicitly advancing a positive assertion that the admittedly common father of all five children was someone other than Chandraiah. But they have instead adopted a stance which, with no justification at all, puts the siblings' parentage in issue, and thereby unwarrantably impugns the whole basis upon which Ganikamma and the children have conducted their lives as a family.
86. I accordingly conclude that the Home Secretary's stance on this issue is unjustified and totally without merit. In this regard I do not rely upon the presumption of legitimacy. Deelavathi's parentage has been proved by overwhelming evidence and without the need to rely upon any presumption.

G2. The second crucial question: when was Deelavathi born?

87. Ms Parry does not dispute that Ganikamma's 1978 passport gave Deelavathi's birth date as 6 November 1969. Nor does she dispute that Deelavathi at the outset of her claim produced her birth certificate giving the same date.
88. Ms Parry nevertheless submitted that clear evidence has not been supplied to justify a finding that Deelavathi was born after Chandraiah's registration as a citizen of the United Kingdom and Colonies on 21 December 1967.
89. First, Ms Parry noted the submission in 2013 of an English language certificate giving a date of 6 December 1969 for Deelavathi's birth. There is, however, no reason to doubt Kurma's evidence that this was a mistranslation.
90. Second, Ms Parry noted that school certificates gave a date of birth in 1970. There is, however, an understandable explanation for this: the school in question was that at Suryapet, where Deelavathi was staying with Tata away from her family home.
91. Third, Ms Parry noted that Deelavathi had said she was 16 to 18 in 1984 to 1985. As to that, however, it plainly appears to be a mistake. Indeed it is obvious that during the two years 1984 and 1985 Deelavathi cannot have been both 16 and 18.
92. Fourth, Ms Parry submitted that photo 1 suggested that Chandraiah was still in India when Deelavathi was about a year old. On this basis, if Ganikamma was right when she said that Chandraiah returned to the UK in 1969, Deelavathi must have been born in 1968. It seems to me to be more likely that Ganikamma was mistaken in thinking that Chandraiah's return was in 1969.
93. In these circumstances I conclude that, even without the new evidence now produced in exhibit A, Deelavathi has shown on the balance of probabilities that she was born on 6 November 1969. If there were any doubt then in my view exhibit A disposes of that doubt. None of the points made by Ms Parry can detract from the powerful evidence in exhibit A that Chandraiah attended the registry on 26 December 1969 and recorded the birth to Ganikamma on 6 November 1969 of a female child of which he was the father. In any event, none of the material relied on by Ms Parry seems to me to give any sound basis for thinking that there is a real possibility that Deelavathi was born before 21 December 1967.

G3. The third crucial question: were her parents married?

94. Ms Parry acknowledges that all four statutory declarations describe a marriage in 1942 in accordance with Hindu rites. She submits however that they are riddled with errors and cannot be relied upon.
95. There are indeed errors in the statutory declarations. All four documents are incorrect as to the date of Chandraiah's death. Neither Mangam Rathamma nor Chinta Venkanna could have known Ganikamma as long as they claimed. Mangam Rathamma, Chinta Venkanna and Valluru Venkanna cannot have known Chandraiah for as long as they claimed.
96. However I cannot accept the submission that the statutory declarations are "riddled with errors". The error as to Chandraiah's date of death was identical in all, and is likely to have been a mistake on the part of the person drafting the declarations. As to the length of time for which the declarant had known bride or bridegroom, it is readily understandable that elderly persons reliant on their own memories may make errors in this regard.
97. As against those errors I have the clear evidence in Ganikamma's 1978 passport that Chandraiah was her husband and the clear evidence that British consular officials accepted this in October 1978. In these circumstances I have no doubt that Ganikamma and Chandraiah were indeed married in 1942.

H. Conclusion

98. For the reasons given above I have no doubt that the central question in this case must be answered in favour of Deelavathi: she is a British citizen by descent. I grant a declaration accordingly. I also quash the decision of 23 October 2013 refusing a passport to Deelavathi in her capacity as a British citizen.