QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of
MALVIN GEORGE HARDING)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Catherine Rowlands (instructed by the Government Legal Department for the Treasury Solicitor) for the Defendant
Hearing date: 15 February 2017
Crown Copyright ©
Mr Justice Andrew Baker :
Permission and Grounds
i) Ground 1: "that [the] decision to refuse to issue [the Claimant] with a British passport, in the absence of any dispute as to [his] nationality as set out in [the claim], is irrational and Wednesbury unreasonable" (my emphasis);
ii) Ground 2: that the Secretary of State, through the decision to refuse the Claimant a British passport, has acted contrary to policy and the Claimant's legitimate expectations, having regard specifically to his prior treatment as eligible for a passport and the 'Administrative Recognition' section of the Secretary of State's 'Nationality Instructions', i.e. Volume 2, Section 2 of the Nationality Instructions ('the AR Policy'). The focus of Ground 2 is the treatment of the Claimant in the past as having been eligible for UK passports and the prima facie loss upon his 18th birthday of the right to registration under s.1(3) of the 1981 Act.
i) Firstly, that his claim to be British under s.1(1) of the 1981 Act was indisputably sound (as opposed to actually not disputed), so that it was irrational or 'Wednesbury unreasonable' not to accept it. In that regard, in particular the Claimant contends it was irrational to require that Mr Kanu attend for interview. That complaint gives rise to one of the disputes over the meaning and effect of the decision letter. The Claimant says it purported to require attendance of Mr Kanu for interview as the only means by which he might satisfy HMPO of his claim to be a British citizen. Ms Rowlands for the Secretary of State accepted that it would be unlawful so to require, but submitted that the decision letter did not go that far.
ii) Secondly, that the Secretary of State, through the decision letter, failed to provide any or any proper explanation as to why the documentary evidence submitted by the Claimant was not regarded as establishing his claim to British citizenship under s.1(1).
The Law Applicable
"A person born in the United Kingdom shall be a British citizen if at the time of the birth his father or mother is
(a) a British citizen; or
(b) settled in the United Kingdom ".
i) the Claimant was born in the UK;
ii) Mrs Harding is the Claimant's mother, but was neither a British citizen nor settled in the UK when the Claimant was born;
iii) Mr Harding was neither a British citizen nor settled in the UK when the Claimant was born;
iv) Mr Kanu was a British citizen when the Claimant was born;
v) therefore, the Claimant is a British citizen under s.1(1), i.e. by virtue of his birth in the UK, if and only if Mr Kanu is his 'father' as that may be defined for the purpose of s.1(1).
i) When the Claimant was born in 1995 and when his mother married Mr Kanu in 1996:a) by s.50(9)(b) of the 1981 Act, "subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him"; andb) s.47(1) provided that "A person born out of wedlock and legitimated by the subsequent marriage of his parents shall, as from the date of the marriage, be treated for the purposes of this Act as if he had been born legitimate".
ii) On 1 July 2006, by virtue of s.9 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'):a) s.47 of the 1981 Act ceased to have effect;b) s.50(9) of the 1981 Act was replaced by new ss.50(9) and 50(9A), the former defining only 'mother', the latter providing that:"For the purposes of this Act a child's father is
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child, or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37) (father), that person, or
(c) where neither paragraph (a) nor paragraph (b) applies, any person who satisfies prescribed requirements as to proof of paternity."c) Subsequently, s.50(9A)(b) was amended, a new s.50(9A)(ba) was added, and consequential amendment was made to s.50(9A)(c), but those changes are all immaterial on the facts of the present case.
The Approach to the Review
i) The decision of HMPO not to issue a passport is an exercise of the Royal Prerogative (or, more strictly, a decision to refuse to exercise the Royal Prerogative in favour of the passport applicant).
ii) Such a decision is susceptible to challenge on normal public law grounds and Liaquat Ali, especially at  and -, accurately represents the law. In fact, the approach there stated was adopted and applied in Rahman to found the quashing of the passport refusal decision (Rahman at -), and was confirmed in R (XH, AI) v Secretary of State for the Home Department  EWHC 1898 (Admin) (Div Ct, Hamblen LJ and Cranston J), in which (at -) Liaquat Ali at  in particular was approved and adopted. It was also adopted by, or at all events assumed by the approach taken in, R (Begum) v Secretary of State for the Home Department  EWHC 2968 (Admin), which decided that it was unlawful for HMPO only to issue passports when satisfied beyond reasonable doubt as to citizenship (as opposed to on a balance of probabilities).
iii) Stated generally, it is not irrational or Wednesbury unreasonable for HMPO to adopt a policy that a passport will not be issued (or renewed) if it (HMPO) is not satisfied by the evidence supplied by the applicant that he or she is a British citizen. Current policy, set out in a Written Ministerial Statement of 25 April 2013 quoted in XH, AI at [24(4)], is that "Passports are issued when the Home Secretary is satisfied as to: (i) the identity of an applicant; (ii) the British nationality of applicants, in accordance with relevant nationality legislation; (iii) there being no other reasons for refusing a passport " (my emphasis). That is lawful policy.
iv) The circumstances of any given case may engage some more particular requirement as to the approach to be taken to the applicant's evidence see e.g. Liaquat Ali at  as to applicants who have previously been issued with British passports. That does not contradict, it supplements, the general proposition stated in iii) above. It is not unlawful, without more, for a passport to be refused to an applicant who is in fact a British citizen because a rational and reasonable view has been taken by HMPO that the evidence supplied for the application did not so establish.
v) In R (Sinha) v Secretary of State for the Home Department  EWHC 711 (Admin), Eder J granted a declaration, having decided the point for himself on the balance of probabilities, that the claimant was a British citizen (formerly known by a different name), but he did so as the determination of a claim properly brought (as in Rahman) for such a declaration. Eder J did not reach any conclusion as to the rationality of the refusal to renew the claimant's passport that had triggered the proceedings, but (a) Counsel for the Secretary of State conceded that he did not need to do so, thus (b) if the passport decision was quashed (it is not clear from the judgment whether it was), that will have been by agreement as to the form of order to be granted. (Similarly, in R (Olayeni) v Secretary of State for the Home Department  EWHC 2137 (Admin), in a challenge to a passport refusal, Patterson J decided for herself whether the claimant was who she claimed to be, but (a) she did so by agreement between the parties that she should treat the issue as one of 'precedent fact' and (b) she decided it against the claimant anyway.) If Sinha (or Olayeni) purported to decide that the court's declaration of British citizenship, without more, justified the quashing of a prior passport refusal, I would have regarded it as wrong and would not have followed it.
vi) Again, in Rahman itself, Edis J's decision to quash the passport refusal for irrationality did not conclude the proceedings, because the claimant had squarely raised the analytically separate claim for a declaration as to his British citizenship, not because the lawfulness of the passport refusal was to be judged by reference to the court determining for itself the question of citizenship.
vii) The true proposition, with which all of the cases are consistent, is that where a passport refusal is not unlawful on normal public law grounds, it is not to be quashed on a judicial review, but if the claimant has also made a claim for a declaration as to his British citizenship, that claim can be entertained and, if the court determines it in the claimant's favour, that determination will plainly assist the claimant in a fresh passport application.
The Detailed Facts
The Decision Letter
" a UK passport will only be issued once [HMPO] is fully satisfied that an applicant's identity and nationality has been fully established. [This was not separately challenged, but to my mind it does not sit entirely comfortably with the balance of probabilities standard that HMPO should be applying.]
[The Claimant's] applications' [sic] of October 2012 and December 2013 were both withdrawn as he was unable to attend an interview with his father, Allieu KANU. [The Claimant] was informed of our decision not to issue him with a passport and the reason why in our letters dated 10 January 2013 and 24 June 2014.
[The Claimant] submitted an application for a UK passport on 13 February 2015. As part of the examination process it was still intended [this must mean 'by HMPO'] that his father be invited to attend an interview. The purpose of this interview is to both help establish [the Claimant's] identity and claim to a British passport as nationality in his case can only be conferred through his biological father.
With respect to this current application as you have stated in correspondence to us [the Claimant] is unable to comply with our request to attend an interview with his father. Therefore I must advise that [HMPO] is still not in a position to issue a passport to [the Claimant] and his application will now be withdrawn.
I appreciate that this is not the news that your client will want to receive but unfortunately as citizenship is determined by law, I regret that this office is unable to exercise discretion in this or any other case where identity and nationality has not been fully established. However, I would like to assure you that [the Claimant] is free to apply for UK passport facilities at any time but will have to be in a position to attend an interview with his father."
i) The letter confirms that the sole reason for refusing the 2012 and 2013 applications was that Mr Kanu did not attend for interview.
ii) It states that since the Claimant will be unable to comply with a request for such an interview, HMPO is "still not in a position" to issue him with a passport.
iii) It suggests that HMPO had no choice in the matter, given the lack of opportunity to interview Mr Kanu.
iv) It closes by placing a condition on HMPO's willingness to consider any fresh application, namely that the Claimant "will have to be in a position to attend an interview with his father". (For completeness, I note that in the letter, 'his father' plainly meant Mr Kanu, itself an oddity unless HMPO was in fact happy that the Claimant probably is Mr Kanu's son, but was imposing nonetheless a requirement that Mr Kanu be interviewed.)
i) Just over a year after the Claimant's birth, his mother married Mr Kanu and Mr Kanu registered the Claimant as his son. There is no evidence that Mr Kanu has ever disputed fatherhood. The fact that the marriage ended in divorce in 2001, and may have broken down prior to that, perhaps in 1998, could not reasonably be taken to be evidence contradicting Mr Kanu's registered fatherhood of the Claimant.
ii) That 1996 birth certificate was accepted officially as sufficient proof of fatherhood in issuing the Claimant with his first passport in 1998. That was obtained for him by Mrs Harding; by doing so she confirmed the truth of Mr Kanu's fatherhood of the Claimant as stated in the birth certificate.
iii) Mr Harding made claims to paternity in the 2002 Deed of Name Change.
iv) The Claimant's next passport was issued in 2005 either (a) Mr Kanu having been named as his father on the passport application form, or (b) despite Mr Harding having been so named (paragraph 34 above).
v) In the 2010 passport application form, Mrs Harding named Mr Harding as the Claimant's father.
vi) When in 2012 the Claimant for the first time signed a passport application for himself (being over 16), he did not identify his father in the form. When he attended with Mr Harding for interview, Mr Harding explained that he was the Claimant's step-father, not his biological father. Unless that was being assessed as untruthful, it would tend to support the Claimant's claim to British citizenship, but it seems to have been treated as reason to reject it. If I understood the later correspondence correctly, Mrs Harding also attended on this interview appointment.
vii) In the 2013 passport application form, the Claimant named Mr Kanu as his father.
viii) In the 2015 passport application form, oddly as I have said, the Claimant named Mr Harding as his father; but the form was sent by the Claimant's solicitors whose detailed covering letter and explanation made it clear that the Claimant said Mr Harding was his step-father, not his biological father. In the specific circumstances of this case, HMPO could not reasonably have taken the 2015 application form as a claim by the Claimant that Mr Harding was his biological father.
ix) Accordingly, if there be cause for concern about the Claimant's claim to British citizenship by virtue of his birth in the UK (bearing in mind that his claim should be accepted by HMPO if it assesses it to be probably correct, i.e. more probably than not true; he does not need to make HMPO sure), it is created by one document of Mr Harding's in 2002, one document of Mrs Harding's in 2010 and (possibly) one earlier document of Mrs Harding's in 2005. A rational decision-maker concerned about those documents would wish to have, and assess, an explanation for them from Mr and Mrs Harding. He would not think he needed to interview Mr Kanu (though it might not be unreasonable to ask whether such an interview would (also) be possible). HMPO has in fact seen Mr Harding and (if I have understood the correspondence correctly) Mrs Harding too, when the Claimant attended for interview in December 2012. It seems that HMPO accepted Mr Harding's information that he was the Claimant's step-father he is referred to as such in HMPO's later correspondence. At all events, HMPO has not communicated to the Claimant that Mr Harding was not believed. It is then difficult to understand why HMPO should consider it needs to interview Mr Kanu unless a view has been taken that, irrespective of the strength of the Claimant's claim without it, an interview with Mr Kanu is the only means by which HMPO will ever be satisfied.
i) The Claimant has been granted British passports during his childhood on the basis that Mr Kanu was his father and/or despite Mr Harding being named as his father in one or more passport application forms. The AR Policy is this (para.1), that "Where someone has been recognised as a British citizen for many years, but information comes to light which shows this to have been in error, it may be appropriate to continue to treat the person as a British citizen whilst his or her position is being regularised". That was engaged here (if the Claimant is being treated as not Mr Kanu's son); thus, it "may [have been] appropriate" for the Claimant to continue to be treated as a British citizen "whilst his position is being regularised"; and that explicitly extends to the granting of a passport (AR Policy para.3 gives the form of words which (or similar) will be used in a letter when a passport is granted on the basis of 'administrative recognition'). The AR Policy is not limited to cases of urgent need to travel (such cases are stated at para.2 to be "particularly appropriate" for 'administrative recognition', they are not said to be the only cases that qualify.)
ii) It is now too late (and was too late in February 2015, when the relevant passport application was made) for the Claimant to bring himself within the strict requirements of s.1(3) of the 1981 Act by a fresh citizenship registration application. He plainly fell within those strict requirements, however, when being granted a full passport in 2005 and a temporary passport in 2010. So also when making the 2012 passport application and when signing the 2013 passport application form. (I could not find that the 2013 passport application was made while the Claimant was still a child, as I have in evidence only that he signed it the day before his 18th birthday but nothing as to when it was received by HMPO.) Ms Rowlands noted that when his 2010 temporary passport expired, the Claimant was without a passport and still a minor, so that an unassailable application for registration could then have been made. That is no doubt correct; but that does not in my view disapply the relevant policy provision. (The AR Policy, at para.5, states that "It may be possible, and preferable, to construe an old passport application as an undetermined application for citizenship, and to resolve the case in that way (see Volume 1 Chapter 6)"; para.6.3.9 of Vol.1 Ch.6 (as it now is, it may have been para.6.3.8 in 2015) provides that "Cases sometimes come to light where, due to official error, people have been consularly registered while ineligible for such registration or wrongly issued with British passports or certificates of entitlement to the right of abode. As a result they might have lost age- or time-limited entitlements to citizenship. So that they are not disadvantaged by the official error we should be ready in such cases to construe the application as an undetermined application for citizenship and process it accordingly."; para.6.3.10 notes that (a) this is "intended primarily to benefit people who had, but no longer have, an avenue to registration under the minor or other registration provisions of the British Nationality Act 1948 or the British Nationality Act 1981 and have been led to believe that they are British or have a UK right of abode.", (b) it should not apply where a realistic avenue to citizenship is still open or where it is clear that the person would not have been eligible for citizenship at the time when the official error was made, and (c) if the discretion does arise it "should normally be exercised in the person's favour".)
iii) The policy does not (and rationally could not) limit the circumstances in which consideration should be given to treating an applicant for a passport as having made an undetermined registration application to circumstances in which the passport application that would otherwise be turned down was made during the applicant's minority. So to construe it would be to disapply the policy to the paradigm case for its application. That is where a young person has had successive full passports as a child until beyond their 18th birthday, and perhaps one or more full adult passports too thereafter, and an issue over their status under s.1(1) of the 1981 Act only then emerges. The passport application that triggers the need at least to consider the AR Policy will necessarily only have been made when no fresh s.1(3) registration application could have been valid. (This view of the policy is confirmed by the reference in para.5, as quoted in ii) above, to construing "an old passport application" as an undetermined application for citizenship; the need to consider the policy may arise from a range of triggers; if, as in this case, it is triggered by a passport application made by an adult, and if it otherwise applies, it is a policy to construe a prior passport application (made during minority) as an undetermined application for citizenship, for the purpose then of deciding what to do with the current application.)
iv) I agree with Ms Rowlands and with the AR Policy itself as it states this that there is a real question mark over the lawfulness of granting an 'administrative recognition' for life of a status not in truth enjoyed. But that is not required, at all events in the type of case presented by the Claimant's circumstances. Such a case (if the claim to citizenship under s.(1) of the 1981 Act is not accepted) calls for consideration of whether as a matter of discretion to grant a passport (whether full or temporary) in response to the particular passport application, on the basis that the applicant should be recognised administratively as having an undetermined application for registration under s.1(3). In other words, by way of 'administrative recognition' the applicant is deemed to be someone in respect of whom a s.1(3) application was made during his minority. If HMPO can see that such (deemed) application is sound, on the facts of the applicant's case, then it plainly has a discretion to issue a passport even though ex hypothesi the s.1(3) citizenship has not in fact been registered yet.
v) That analysis is not affected, I think, by the fact that a different agency (currently UKVI) would have carriage of any decision to register citizenship under s.1(3) of the 1981 Act. Where HMPO had approached a passport application in the manner just described, it would be incumbent on it to explain to the applicant that it had done so. Absent a change of circumstance, UKVI could not properly refuse, applying the same policy, also to recognise the applicant administratively as having made a timely application for registration. By the time the passport granted in the meantime pursuant to that 'administrative recognition' expired, the applicant's citizenship status could then have been regularised.
vi) I do not say that in a case where HMPO decided there should be 'administrative recognition' of a citizenship not yet registered, it would be bound to exercise discretion by issuing a passport. For example, if there were no imminent travel plans, I envisage that it might be a proper exercise of discretion not to issue a passport but to explain the decision fully, including as to 'administrative recognition', and directing the applicant to take that aspect up with UKVI after which, assuming citizenship was then registered, a passport could be issued.