Fayad, R (on the application of) v Home Office

LORD JUSTICE JACKSON: This is an application for permission to appeal. The Appellant's case is that he is a British overseas citizen and entitled to a British passport. He says he was born to Lebanese national parents on 5 February 1961 in Sierra Leone. Sierra Leone was then a part colony and part protectorate such that anyone born in the country had status as either a British subject or a citizen of the United Kingdom and the colonies or a British protected person.

Sierra Leone was due to become independent on 27 April 1961. The nationality laws introduced by the post independence governance laid down a rule that Sierra Leonean citizenship required that an individual must be born in Sierra Leone and have parents and grandparents who were also born in Sierra Leone. Anyone falling outside of this rule would retain their status as a British subject or citizen of the United Kingdom and colonies. The Appellant's parents had moved to Sierra Leone shortly before birth and moved back to Lebanon at some point in 1962. All of that is a summary of what the Appellant contends.

In 1983 the British Nationality Act 1981 came into force. This converted the status of a British subject or citizen of the United Kingdom and colonies into British citizenship.

The Appellant contends that upon return to Lebanon he remained there for some 33 years. He did not leave the country nor did he require a passport. He applied for and secured one in 1994 from an official in the Beirut embassy. From 1994 to 2012, on the Appellant's account, he lived in seven different countries and travelled to such an extent that he required seven passports in 18 years because they ran out of pages.

By 2003 the Respondent had concerns about the Appellant's entitlement to the passport. The Beirut embassy official who issued the passport had left the diplomatic service and there were allegations of corruption against him. The Respondent put the Appellant's name on a stop file list of that year. This meant that any passport applications made after that date should have been held in abeyance until the Appellant's identity and entitlement to a passport could be verified.

Despite this, the Appellant was issued with any passports in 2005, 2007 and 2009. A single journey passport was issued in 2012. It was not until the Appellant made an application for a passport renewal during 2012 that the stop notice was acted on. A Mr Peter Willmott, a fraud investigation officer with the Respondent, handled the case. He invited the Appellant to attend an interview to confirm his identity and bring various documents with him. The letter asked him to bring as many forms of identification as possible and was asked to bring documents dating back to birth for himself, his parents, siblings, any passports, birth certificates and photographs to the present day.

The Appellant attended the interview and brought a series of documents with him. He has subsequently maintained that many of the earlier documents were not available because of a fire in his house in Lebanon in, I think, 2006. The Appellant was somewhat vague about many of the details in interview. After the interview, the Appellant was requested to submit his original birth certificate, his father's birth certificate, his father's marriage certificate and copies of all passports he had held. The Appellant submitted certified copies of certain birth certificates.

The passport office were not satisfied. Correspondence ensued. There had been some one year passports issued to the Appellant, but no full British passport. The Appellant therefore commenced judicial review proceedings seeking an order to compel the Respondent to issue a passport.

The proceedings came on for hearing before His Honour Judge McKenna sitting as a Deputy Judge of the High Court in July 2014. The judge handed down his judgment on 24 July 2014. The judge dismissed the claim for judicial review. In a careful and thorough judgment, he reviewed the relevant principles.

In particular, he referred to the case of Liaquat Ali v SSHD [2012] EWHC 3379. That established the principle that once a person had received British passports, the Secretary of State had to advance cogent reasons for taking the view that he was not entitled to subsequent passports. The judge came to the conclusion that the matters to which I have briefly referred collectively did constitute sufficiently cogent reasons for the Secretary of State's refusal to issue a new full passport.

One of the matters referred to was the judge's concern about discrepancies in photocopies of passports. Ms Jegarajah, who appears for the Appellant today, points out that in a letter dated 1 December 2014 (i.e. some five months after the hearing below) the Secretary of State accepted that the certified birth certificates were genuinely issued, although the Secretary of State maintained concerns about identity.

Ms Jegarajah submits that the Secretary of State has not produced any evidence concerning the corruption alleged against the official. The application form submitted to the allegedly corrupt official in 1994 has not been produced. No firm basis has been shown for the Secretary of State's concerns concerning identity and entitlement to a new passport. Certainly, says Ms Jegarajah, the Secretary of State has not produced the cogent reasons which the law would require. Accordingly, she submits that there is an arguable case that the judge below has fallen into error in dismissing the judicial review claim.

I have come to the conclusion that there is an arguable basis for this proposed appeal. I am also concerned, however, about the long delays which have occurred. The judgment under appeal was delivered as long ago as July 2014. This application for permission to appeal has been adjourned once with a request that the Respondent should clarify its position. The clarification which was sought on that occasion does not appear to have been received.

It seems to me that this case needs to be brought to an early resolution, if that is practicable. I therefore direct that there be a directions hearing with the Respondent to attend in the week of 8 February. That is a week when I am told it is possible for me to hold such a directions hearing. I reserve the case to myself and I direct the Respondent to attend. I am told by Ms Jegarajah that she would be available to attend a directions hearing in that week. At that hearing I will give any directions which are necessary.

If it turns out upon investigation by the Secretary of State that there is some reason why the appeal has no prospect of success, it is, of course, open to the Secretary of State at that hearing to make an application for permission to appeal to be set aside pursuant to rule 52.9(1)(b) of the Civil Procedure Rules.