NA (Iraq), R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Ors

The appellant is a 30 year old Iraqi Kurd from the Kurdish Regional Government zone of Iraq (“the KRG”). He entered the United Kingdom clandestinely in December 1999 and claimed asylum. His claim was refused and an appeal was dismissed. The appellate process came to an end in July 2005. Following further, unsuccessful representations the appellant was removed to the KRG in November 2005. A claim for judicial review to challenge that removal was settled on the basis that the Secretary of State would use his best endeavours to bring the appellant back to the United Kingdom. The appellant arrived back in January 2006. He then made a series of further representations which the Secretary of State again rejected. The process culminated in a decision letter dated 1 September 2006, together with the issue of fresh removal directions. Following an unsuccessful application for an injunction, the appellant was removed to the KRG for a second time on 5 September 2006.

While he was in the United Kingdom the appellant had formed a relationship with a British citizen, Ms Elizabeth Kennedy, to whom he became engaged to be married. Following his second removal to the KRG, he wished to apply for leave to enter the United Kingdom as a fiancé. For that purpose, as explained in greater detail below, he needed entry clearance; and to obtain entry clearance he was required to produce, in accordance with para 320(3) of the Immigration Rules, “a valid national passport or other document satisfactorily establishing his identity and nationality”.

The appellant’s case is that he obtained what is known as an “S-series” passport from the Iraqi authorities within a week of his return to Iraq. His representative then wrote to the entry clearance officer (“the ECO”) in Amman, asking for an assurance that if the appellant applied for entry clearance with his S-series passport the application would not be refused on the grounds of documentation. The ECO replied on 26 September 2006 in these terms:

The appellant brought a claim for judicial review, challenging what were described as a decision of the Secretaries of State that S-series passports were not to be accepted as evidence of identity and nationality, and a decision of the ECO to refuse to entertain any application by the appellant for entry clearance unless he presented a G-series passport. The claim was dismissed by Goldring J, against whose order this appeal is brought.

The central issue on the appeal is a narrow one, namely whether the Secretary of State’s decision or policy that S-series passports are no longer to be accepted amounts to an unlawful removal or restriction of the power of ECOs under para 320(3) to decide as a matter of judgment in individual cases whether an S-series passport meets the requirements of that provision. The practical significance of the dispute would appear to be narrower still. If the Secretary of State’s concerns about S-series passports are well founded, an applicant is likely to have extreme difficulty in persuading an ECO to accept such a passport as meeting the requirements of para 320(3) even if the ECO is free to make his own decision. Nonetheless, the appellant says that his S-series passport does meet those requirements and that he is entitled to have the opportunity so to persuade the ECO. Thus there is more to the case than an empty point of principle.

Section 3(2) of the Immigration Act 1971 provides that “[t]he Secretary of State shall from time to time … lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter …”. The rules laid before Parliament in accordance with s.3(2) are currently contained in HC395 as amended (“the Immigration Rules”).

Para 26 of the Immigration Rules provides that an application for entry clearance will be considered in accordance with the provisions concerning the grant or refusal of leave to enter; and that, where appropriate, the term “entry clearance officer” should be substituted for “immigration officer”.

The requirements for leave to enter the United Kingdom as a fiancé are set out in para 290. They include, in sub-para (vii), that the applicant must hold a valid United Kingdom entry clearance for entry in this capacity. By para 292, leave to enter the United Kingdom as a fiancé is to be refused if such an entry clearance is not produced on arrival.

Para 320 contains general grounds for the refusal of entry clearance or leave to enter the United Kingdom. It provides, in material part:

The central provision for present purposes is para 320(3). Read in conjunction with para 26, its effect is that entry clearance must be refused if the applicant fails to produce to the entry clearance officer “a valid national passport or other document satisfactorily establishing his identity and nationality”. (Language similar to that of para 320(3) of the Immigration Rules is to be found in para 4(2)(a) of schedule 2 to the Immigration Act 1971; but reference to the latter provision does not in my view take matters any further and I therefore propose to say nothing more about it.)

S-series passports were introduced by the Interim Iraqi Government (“the IIG”) in 2004. Internal guidance issued by the Home Office’s International Delivery Directorate in October 2004 stated as follows in relation to them:

The period referred to was reviewed and extended every six months, until a decision was taken to phase out the acceptability of the S-series passports from 1 September 2006. An internal guidance note dated 30 June 2006 stated:

The background to all this is explained in a witness statement of Ann Williams, an Assistant Director in the Borders and Visa Policy Directorate of the Home Office’s Immigration and Nationality Directorate. She states:

Ms Williams’s witness statement goes on to list other States which have decided not to accept S-series passports, and an updated and expanded list has been provided to us. It is important to note, however, that S-series passports have continued to be issued by the Iraqi authorities, as para 14 of Ms Williams’s witness statement makes clear:

Having set out the background and the rival submissions, Goldring J expressed his conclusion as follows, at paras 27-31 of his judgment:

For the appellant, Mr Cox submits that the judge’s conclusion has no basis in the legislation governing immigration control. The ECO must determine an application for entry clearance in accordance with the Immigration Rules. It is for him to reach a decision on the factual matters raised by para 320(3). The Secretary of State’s concerns about S-series passports can properly be reflected in guidance to which the ECO must have regard. Such guidance can be expressed in strong terms: for example, Mr Cox accepted in the course of argument before the judge that it would be open to the Secretary of State to give guidance to the effect that S-series passports were “not worth the paper they were written on”. It is submitted, however, that the judge was wrong to refer to the internal document in this case as “operational guidance” to the effect that a passport of a particular class is no longer acceptable. This went beyond guidance. It was an instruction, which restricted the freedom of the ECO to make his own decision on the particular facts. It may be hard to persuade an ECO to accept an S-series passport in the light of guidance properly given by the Secretary of State; but the appellant is entitled to try to persuade an ECO that his S-series passport is valid and should be accepted. If the Secretary of State wishes to instruct ECOs not to accept any S-series passports, he must change the Immigration Rules themselves.

For the Secretary of State, Miss Laing submits that the judge’s approach is the right one. The purpose of the rule is to maintain the integrity of immigration control. The Secretary of State has grave and well-justified doubts about the reliability of a particular class of Iraqi passport, the S-series. There is no longer a necessity to accept that class of passport, because a considerably more reliable alternative, the G-series, has become available. On the particular facts of this case, the Secretary of State’s “generic decision” or “policy” (as Miss Laing variously described it) that the S-series is not to be accepted has not removed from ECOs anything more than a wholly theoretical area of judgment. In practice, it is not possible for anyone to make a reliable judgment as to the validity of an S-series passport; an applicant cannot demonstrate the validity of such a passport. An ECO is therefore not in a position to accept any S-series passport as valid and meeting the requirements of para 320(3). On these facts, it is submitted that the Secretary of State’s decision or policy is lawful and permitted by the legislative scheme. In her oral submissions Miss Laing also referred to the Secretary of State as “supplementing” para 320(3) by providing practical guidance the purpose of which is to enable ECOs to determine applications in accordance with the Immigration Rules.

The fundamental point in this case, as it seems to me, is that the decision to be taken under para 320(3) is that of the individual ECO to whom the application for entry clearance is made. That is clear from the scheme of the Immigration Rules and the terms of para 320(3) itself, read together with para 26. It is the individual ECO who has to decide whether to grant entry clearance, and for that purpose he has to decide inter alia whether the applicant has produced “a valid national passport or other document satisfactorily establishing his identity and nationality”. The decision requires an exercise of judgment in respect of whatever document or documents the applicant has produced. It is the ECO who must exercise such judgment and make the decision.

It follows that the Secretary of State is not the decision-maker under para 320(3); and, although he is entitled to issue guidance to assist the ECO in his task, he is not entitled to instruct or direct the ECO as to the decision to be made or to remove or restrict the ECO’s power of decision-making. The issue is whether, in relation to the S-series passport, the Secretary of State has overstepped his permitted role. Before focusing directly on that issue, however, I think it helpful to look in greater detail at the nature of the decision that the ECO has to make.

When an applicant for entry clearance produces what purports to be a passport, the ECO has to decide first whether it is a “valid national passport”. It is not necessary for the purposes of this appeal to determine the full criteria of validity, but there appeared to be a substantial measure of agreement between counsel that the document must at least be a passport issued by a recognised State authority, identifying and stating the nationality of the person to whom it is issued (who must, of course, be the applicant for entry clearance); it must be within date; there must be no material alteration to it; and it must not have been obtained by deception. Support for some of those criteria is provided by section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which requires certain kinds of behaviour to be taken into account as damaging a claimant’s credibility. By subsection (3)(b), one such kind of behaviour is “the production of a document which is not a valid passport as if it were”. By subsection (8), a passport produced by or on behalf of a person is valid for the purposes of subsection (3)(b) “if it (a) relates to the person by whom or on whose behalf it is produced, (b) has not been altered otherwise than by or with the permission of the authority who issued it, and (c) was not obtained by deception”.

If the ECO is satisfied that an applicant has produced a valid national passport, must he then go on under para 320(3) to ask as a separate question whether that passport satisfactorily establishes the applicant’s identity and nationality? That depends on whether para 320(3) is to be read disjunctively, as requiring an applicant to produce either “a valid national passport” or some “other document satisfactorily establishing his identity and nationality”; or conjunctively, as requiring an applicant to produce either “a valid national passport … satisfactorily establishing his identity and nationality” or some “other document satisfactorily establishing his identity and nationality”. In my judgment the former, disjunctive construction is the natural reading and is to be preferred. A valid national passport can generally be taken to establish satisfactorily a person’s identity and nationality, and it cannot have been intended to require the ECO to make a separate inquiry about those matters. It is only if the applicant relies on a document other than a valid national passport that there needs to be an inquiry into whether that document satisfactorily establishes his identity and nationality.

Further, the disjunctive construction of para 320(3) is supported by the inclusion of a separate provision, in para 320(10), whereby production of a passport “which does not comply with international passport practice” is a ground on which entry clearance should normally be refused. That provision will generally be apt to cover the situation of a passport which, though valid, is of such poor quality that it cannot be relied on as satisfactorily establishing identity and nationality. Moreover it is difficult to see why such a provision would be needed at all if an ECO were required in any event, under para 320(3), to consider not only whether a passport was valid but also whether it satisfactorily established the applicant’s identity and nationality.

It follows from the above that when an applicant for entry clearance produces an S-series passport, the ECO must first decide, under para 320(3), whether it is a valid national passport. If it is not, then entry clearance must be refused (subject to the theoretical possibility, which can be dismissed for practical purposes, that the ECO may nonetheless be satisfied that the S-series passport, although not a valid national passport, counts as some “other document satisfactorily establishing his identity and nationality”). If, however, the S-series passport is found to be a valid national passport, the ECO needs to go on to consider, under para 320(10), whether it complies with international passport practice. If it does not, then entry clearance should normally be refused.

Against that background I turn to examine the lawfulness of the material issued by the Secretary of State, in particular the so-called guidance note dated 30 June 2006 (quoted at para 12 above), and of the stance adopted by the ECO in Amman in reply to the inquiry by the appellant’s representative about the appellant’s proposed reliance on an S-series passport (quoted at para 3 above).

In my judgment the relevant part of the so-called guidance note goes well beyond guidance and amounts to an instruction or direction to ECOs not to accept S-series passports for the purposes of entry clearance. There can be no doubting the mandatory nature of its terms: “From 1 September 2006, no visas are to be issued to holders of S-series”. Ms Williams’s witness statement makes clear that this was indeed the intention. This is also how it was understood by the ECO in Amman, whose reply to the appellant’s representative stated that “Her Majesty’s Government no longer accepts the S series Iraqi passport for the purpose of making UK entry clearance applications”, that an application from the appellant could not be accepted unless he had an acceptable series Iraqi passport, and that “we have no local discretion in this matter at all”.

I therefore respectfully disagree with Goldring J’s description of this as “operational guidance to the effect that a passport of a particular class is no longer acceptable”. By telling ECOs not to accept any passport of a particular class, the Secretary of State has exceeded the proper limits of operational guidance and has interfered directly and unlawfully with the ECO’s power of decision-making under para 320(3). This has resulted, in turn, in an unlawful refusal by the ECO in Amman to exercise his own judgment under para 320(3) in relation to individual applications.

It is sought to justify the Secretary of State’s approach on the basis that S-series passports are of such poor quality and so lacking in security features that an individual ECO is unable to form any reliable judgment about their validity. I find that attempted justification wholly unconvincing, for a number of reasons.

First, practical considerations cannot affect the legal principle. However difficult it may be for an ECO to form a reliable judgment about the validity of an S-series passport, and however “theoretical” his area of judgment may be, the decision under para 320(3) must still be his and the decision-making power cannot lawfully be removed from him or restricted by the Secretary of State.

Secondly, however difficult it may be to form a reliable judgment, I do not think that one can dismiss the possibility of an ECO reasonably deciding on the facts of an individual case that an S-series passport produced by an applicant is valid. I agree with Goldring J in leaving open that possibility (see para 15 above, at (2)). The Secretary of State does not contend that there are no valid S-series passports in existence, nor could he sensibly do so: the Iraqi authorities have issued them for several years and continue to issue them during the transition to the G-series; and some countries continue to accept them. The Secretary of State’s case is based instead on the difficulty of distinguishing between valid and invalid or counterfeit S-series passports. Thus, Ms Williams states that “[t]he S-series passport is so lacking in sophistication that it is not possible to be sure, even in the case of an officially issued passport, that it is genuine” (see para 5 of her witness statement, quoted in para 13 above). In my view, however, it is possible to envisage non-fanciful factual circumstances in which an ECO could properly be satisfied of the validity of an individual S-series passport. Indeed, a judgment was presumably made and some S-series passports were presumably found to be valid when they were produced by applicants for entry clearance prior to 1 September 2006. Miss Laing suggested that S-series passports were accepted at that time merely as a matter of concession rather than because they were considered to be valid, but there is nothing in the material before the court to substantiate that suggestion.

Thirdly, the Secretary of State’s concerns about the difficulty of forming a reliable judgment about the validity of S-series passports can in my view be dealt with satisfactorily by means of guidance in appropriately strong terms, reflecting the points made in Ms Williams’s witness statement. An ECO made fully aware of the vulnerability of S-series passports to counterfeiting and alteration will no doubt take a great deal of persuading to accept an S-series passport as valid.

Fourthly, the Secretary of State’s concerns about the S-series passports can also be taken into account under para 320(10). As to that, it is not necessary for the court to rule on the extent of compliance of S-series passports with international passport practice within the meaning of para 320(10), but it may be helpful to refer briefly to some of the points to which our attention was drawn in written submissions provided after the hearing.

Relevant standards and recommended practices are contained in Annex 9 (“Facilitation”) to the Convention on International Civil Aviation, as published by the International Civil Aviation Organization (“the ICAO”). “Standard” is defined as “[a]ny specification, the uniform observance of which has been recognized as practicable and as necessary to facilitate and improve some aspect of international air navigation … and in respect of which non-compliance must be notified by Contracting States to the Council …”. “Recommended Practice” is defined as “[a]ny specification, the observance of which has been recognized as generally practicable and highly desirable to facilitate and improve some aspect of international air navigation … and to which Contracting States will endeavour to conform …”. It is not in dispute that the expression “international passport practice” in para 320(10) of the Immigration Rules encompasses ICAO standards as so defined. Whether it also extends to ICAO recommended practices as so defined is less clear and is a matter of dispute between the parties.

The issuance of machine readable passports and the specifications of such passports (as contained in an ICAO publication known as Document 9303, Part I) are at present the subject of recommended practices rather than standards. Contracting States will not be under an obligation to issue machine readable passports until 1 April 2010. Some of the features of S-series passports to which the Secretary of State takes objection, such as the absence of a suitable watermark, constitute non-compliance with the specifications for machine readable passports, but it is not clear that there are corresponding requirements for non-machine readable passports or, therefore, that those features constitute non-compliance with existing ICAO standards.

Of particular significance, however, is the standard laid down in para 3.12 of Annex 9, which relates to non-machine readable passports though it cross-refers to the specifications for machine readable passports. Para 3.12 states that “[w]hen issuing passports that are not machine readable, Contracting States shall ensure that the personal identification and document issuance data and the format of the data page conform to the specifications for the ‘visual zone’ set forth in Doc 9303, Part I …”. The Secretary of State contends that the effect of that provision, when read with the relevant parts of Document 9303, Part I, is that the data in question must be in printed form and appear on a single page; and that the S-series passport fails to comply with that requirement, since the information in it is completed in manuscript and is spread across two pages. In my view there is force in that contention, but it is right to note that the appellant takes issue with it; and, as I have made clear, no decision is called for on the point.

That brief exposition, whilst leaving matters open, is sufficient to indicate that substantial issues arise under para 320(10) as to the compliance of S-series passports with international passport practice. If, therefore, an ECO decides that a particular S-series passport is valid, he will have to give careful consideration to the position under para 320(10); and again the Secretary of State can provide guidance in strong terms to assist him in that task. If the ECO decides that the passport, although valid, does not comply with international passport practice, entry clearance should normally be refused.

For all those reasons I would reject the attempted justification of the Secretary of State’s approach in this case and I would accept the substance of the submissions for the appellant. As already mentioned, the practical significance of that conclusion is likely to be very limited, but the appellant should at least have the opportunity to seek to persuade the ECO to grant him entry clearance on the basis of an S-series passport. The Secretary of State’s concerns about S-series passports can be reflected in guidance and taken properly into account within the existing Immigration Rules. If, however, the Secretary of State wishes to remove any possibility of an S-series passport being accepted by an ECO for entry clearance purposes, then he must change the Immigration Rules themselves in order to produce that result.

For completeness I should mention that both counsel referred in some detail to Ishtiaq v Secretary of State for the Home Department[2007] EWCA Civ 386, which concerned an application for leave to remain in the United Kingdom as the victim of domestic violence. Instructions to caseworkers prescribed the types of evidence on which an applicant could rely in order to prove that their relationship had broken down as a result of domestic violence. The issue for the court was whether it was open to an applicant to prove her case in some other way. The court construed the relevant provision of the Immigration Rules, para 289A(iv), as conferring a discretion on caseworkers to decide what evidence to require an applicant to produce in an individual case; and it was held that the instructions to caseworkers could guide the exercise of that discretion but could not take the discretion away from the decision-maker.

For my part, I consider Ishtiaq to be of very limited assistance. It does provide an illustration of the principle that applies in the present case, but it is not needed in support of that principle. If it falls to the ECO to make the decision under para 320(3), as in my view it clearly does, then it is obvious, without any need to refer to Ishtiaq, that the Secretary of State is entitled to issue guidance but is not entitled to remove or restrict the ECO’s decision-making power.

For the reasons I have given, I would allow the appeal.

I agree.

I also agree.