Ozoemene & Ors v Secretary of State for the Home Department (Identity and Passport Service)

This application for judicial review relates to the Defendant’s decision, by the Identity and Passport Service (the ‘IPS’), to seize and retain the British passports of the First, Second and Third Claimants and her refusal to issue the Fourth Claimant with a British passport. The seizure of the passports of the First, Second and Third Claimants took place in April and May 2010, but those Claimants continued to try to persuade the IPS to alter its view thereafter to no avail. Efforts to persuade the IPS to issue the Fourth Claimant with a British passport were also unsuccessful for the same reasons as those applicable to the other Claimants. It is contended on behalf of the Claimants that the Defendant’s unlawful unwillingness to alter her position was continuing at the date when these judicial review proceedings were instituted on 9 July 2012 and indeed that was so. No issues as to delay arise. They were granted permission to apply for judicial review by Mr David Holgate QC, sitting as a Deputy High Court Judge, on 2 October 2012. At that stage the Defendant had not filed an Acknowledgement of Service.

In her Skeleton Argument on behalf of all the Claimants Ms Jackie Bond referred to the First, Second, Third and Fourth Claimants jointly as “the Claimants” and severally as C1, C2, C3 and C4. I will introduce each by name initially, but I will adopt that convenient shorthand for the rest of this judgment. All Claimants are Nigerian nationals who were born there, but who have come to the UK in recent years in circumstances that will emerge.

The First Claimant is Ikechukwu who was born on 5 April 1978. He has taken the lead in pursuing the issues that have arisen in this case. The Second Claimant is Ezeh who was born on 3 October 1982. The Third Claimant is Nkechi who was born on 14 June 1981. The Fourth Claimant is Ifeoma. She was born on 18 June 1979.

The Claimants assert that they are dual nationals of the United Kingdom and Nigeria as the legitimate children of their father Iwegbune Ozoemene who was naturalised as a British Citizen on 22 November 1968. It is not disputed that he was naturalised on that date. He was born in Nigeria on 2 June 1940.

The claim of each of the Claimants is that he or she was born before 1 January 1983 to a parent who had a right of abode in the UK under section 2(1)(a) of the Immigration Act 1971, as amended by the British Nationality Act 1981, and, therefore, provided that they can be shown to have been legitimate children of their natural father, they would be entitled to British citizenship. It might be said that, given their father’s right to live in the UK and his entitlement to a British passport, it is a little odd in the year 2013 for the issue of formal legitimacy to be the essential key to the Claimants’ entitlement to a passport. However, that is the law as provided for by virtue of section 50(9)(b) of the British Nationality Act 1981 which appears to be the definition section that applies to the circumstances of this case.

As already indicated, the issue that lies at the heart of this case in its present form is the issue of whether the Defendant has acted lawfully and reasonably in declining to return the passports of C1, C2 and C3 and of declining to grant a British passport to C4. The question has to be answered by reference to the material available to the Defendant at the time the relevant decision was made which was made initially in May 2010, but was still ongoing during 2012. It was confirmed in the manner to which I will refer later (see paragraph 39) on 30 July 2012. I emphasise that matters have to be looked at as at that time, or during that period, because the actual picture in one particular respect is different now from what is was then for reasons to which I will return (see paragraph 40 below).

It is not in issue that the Claimants’ father married his first wife, Iruka Comfort Ozoemene, in the London Borough of Ealing on 25 September 1973. It is also not in issue that they had a son, Chinweze, who was born on 1 March 1974. A question had been raised about the evidence relied upon to establish the validity of their subsequent divorce. Although it is an issue that has in fact been resolved very recently (see paragraph 40) and there is now no question but that they were validly divorced, it remains for consideration whether the Defendant was acting reasonably in remaining concerned about it at the time of the decision under challenge.

It is not in issue that the mother of C1, C3 and C4 is Rose Ozoemene; nor is it in issue that the natural father of each of those three Claimants is Iwegbune Ozoemene. There is apparently an issue about whether C2 is the child of that union, but it formed no part of the basis for the decision communicated to the Claimants on 30 July 2012. For present purposes I will treat him as a child of that union. However, the Defendant has raised concerns about the claim made by the Claimants that their father married their mother in Nsukka, Nigeria, on 25 February 1978. The authenticity of a marriage certificate between Iwegbune and Rose Ozoemene produced in support of the validity and legitimacy of the marriage has been questioned. Again, I will return to this in due course.

As I have already indicated, it is common ground that any entitlement that any of the Claimants may have to a British passport is by descent from their father, that entitlement depending on whether they are the legitimate children of their father. If he had not properly been divorced from his first wife he could not legitimately have married the Claimants’ mother and, accordingly, the Claimants would not be his legitimate children. Equally, even if he was properly divorced from his first wife, but nonetheless simply lived with Rose, as I will call her, rather than marrying her, their children would not be ‘legitimate’ for the purposes of the statutory provisions in play.

There is a relatively long history of communications between the Claimants (C1, in particular) and the IPS, at least some of which I can dispense with reciting. The Defendant has disclosed, in a witness statement of Lynne Gray, a Higher Executive Officer (‘HEO’) in the IPS, a redacted summary of the actions taken on the various applications made by the Claimants. She did not deal personally with any of the material actions. The HEO who oversaw the material actions and decisions has now left the IPS. It is, however, possible to obtain a clearer picture of what has happened in the background by referring to this summary although it emerged at the beginning of the hearing before me that the summary was not complete and, to that extent, cannot be considered definitive. I will revert to that shortly, but it is, perhaps, important to highlight at the outset the parameters within which the court would be entitled to intervene by way of judicial review.

It is common ground that the decision of the IPS whether to issue or to withhold a British passport is one made under the Royal Prerogative which is subject to scrutiny on normal public law principles: see R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin) where the issue, as in this case, was whether the Claimant was entitled to a British passport by virtue of descent from the person he said was his father. Burnett J said this at [17]:

“A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. Parliament has chosen not to accord to someone in the Claimant’s position a right of appeal to any court or tribunal. Before issuing a British passport to an individual the Secretary of State must be satisfied that the person concerned is entitled to it. It is common ground that it is for an applicant for a British passport to satisfy the Secretary of State of his entitlement. That is consistent with section 3(8) of the Immigration Act 1971 … which provides that in connection with any question which arises under that Act whether or not a person is a British citizen, it is for him to prove it. However, a British passport is not issued pursuant to any power contained in the 1971 Act. It does not raise a question under that Act. Section 3(8) is not directly in play. In this case, the only basis upon which the Claimant asserts a right to a British passport is by descent from [the person he claimed was his father]. The question for the Secretary of State was whether, on the information available to her at the time of her decisions in 2009 and 2011, she was satisfied that the Claimant was the son of [the person he claimed was his father] and thus entitled to a British passport. The question for this court is whether it was open to the Secretary of State to conclude that he was not.”

Burnett J went on to describe the approach of the court in this way against the background of the facts in that case which involved the Defendant having previously issued a passport to the Claimant which he was simply seeking to renew when, at the renewal stage, the Defendant declined to do so:

“The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional public law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test.”

There are some parallels between that case and this, though the factual background is somewhat different, and there is the added dimension of a decision by an Immigration Judge in this case to which I will refer later (see paragraphs 23-28). However, the essential challenge, if it is to be successful, must be on traditional Wednesbury grounds. In the case of R (Sinha) v SSHD [2013] EWHC 711 (Admin) Eder J was invited to hear evidence to determine whether the Claimant in that case was the person who, at a previous stage in his life, had a different name. That was a crucial issue in that case. It is not the kind of issue that arises in the present case and the decision does not fall to be made in that way.

It appears that C1 first came to the UK on a student visa in 2006, at least one purpose of his visit being to obtain confirmation of his father’s naturalisation here. He obtained that from the National Archives in Kew. During 2006 C1 first applied for a British passport, relying on descent from his father. When the documents he supplied (which included a Nigerian birth certificate and a certified copy of his parents’ marriage certificate) was seen by an examiner at the Liverpool passport office, the internal records show that the examiner was not entirely happy with the documentation provided and the application was sent to the Fraud Investigation Unit in July 2006. Various checks took place and, in due course on 15 February 2007, an interview of C1 took place. The interviewers told him that the documentation he had supplied was of poor quality and needed to be confirmed by local official Nigerian bodies. It was recommended that he should return to Nigeria to make his application there, supported by original documents.

At that point the application he had made was returned to the original investigator in Liverpool. It appears that C1 made a submission of further documents which resulted in the application going back to the examination team with the advice that all documentation should be verified.

At some point in this process, C1’s birth certificate and the marriage certificate of his parents was referred by the investigation team to the policy section for advice, the concerns relating to the marriage certificate being (a) that it appeared to be a photocopy and did not have an embossed stamp and (b) that it was produced within a few days of being requested which seemed suspicious. The policy section indicated that, though the marriage certificate appeared to be a photocopy, when compared with other documents the handwriting appeared to be original and that the speed of supply should not of itself be a concern. The advice from the policy section was that the application should be looked at as a whole.

It does not appear that the divorce decree was either proffered by C1 or sought by the IPS at that stage. Indeed it was not until July 2010 that any of the divorce papers were requested by the IPS investigators.

At all events, on 25 July 2007 C1 was issued with a UK passport valid for 10 years. It is now said that this was a mistake because further checks to authenticate the documents were not carried out and should have been. It is, however, to be noted that the assertion that there had been a mistake was not made until nearly 3 years later in circumstances I will describe.

That assertion requires further examination. First, what appears to have exercised the investigating officers at the time was whether the document was a forgery. In other words, the concern was that it was purporting to record officially something that never occurred. Obviously, if there was no marriage (whatever the status of the previous divorce of the Claimants’ father), any children of the union between the Claimants’ father and the lady I have called ‘Rose’ for this purpose would be illegitimate. As I understand the Defendant’s case, that position is still maintained: in other words, though the fact of the union between Rose and the Claimants’ father is not disputed, the position taken is that there is no satisfactory evidence that a formal marriage ceremony was concluded and, accordingly, all the Claimants must be taken to be illegitimate – or, putting the matter in traditional public law terms, it is a reasonable and rational conclusion to reach that the Claimants are illegitimate.

However, and this is the second observation on the position taken by the IPS investigators, the marriage ceremony could indeed have taken place and be evidenced by the marriage certificate to which I have referred, but the ceremony was not valid because the Claimants’ father was not properly divorced from his first wife. In other words, the document is genuine, but the marriage itself was invalidated because the Claimants’ father was still married.

I will revert to this dual challenge to the marriage certificate shortly, but it is necessary to record what happened in relation to the other individual Claimants.

On 9 and 19 January 2007 C3 and C2 respectively were issued with Nigerian passports and in April and June 2008 respectively each was issued with a Certificate of Entitlement of Right of Abode in the United Kingdom by the British High Commission in Abuja, Nigeria. In due course, in June and July 2009 respectively C2 and C3 were issued with UK passports. It is argued on behalf of the Defendant that this was on the strength of the decision to issue the passport to C1 and that, accordingly, these passports were also issued in error.

In the meantime C4 had applied for a Certificate of Entitlement which had been refused on 27 January 2009 by the Entry Clearance Officer (‘ECO’). The reasons given were the failure of C4 to provide copies of her parents’ passports, medical records and family photographs and that she had applied from Pretoria in South Africa for entry clearance as a visitor and her failure to disclose that she had previously made a visa application in Abuja. She appealed against this decision and it was heard by Designated Immigration Judge Andrew Wilson at Hatton Cross on 27 July 2009 and 10 September 2009. The Home Office was represented on the first occasion, but not on the second. C4 was not present, but C1 attended on 27 July and gave evidence. Their mother attended on 10 September and gave evidence. C1 told the Immigration Judge that he was registered as a British citizen and produced his passport. The Immigration Judge noted that C3 was also a British citizen at that stage which indeed was correct.

I should record what Rose said:

“9.

On 10^th September 2009 her mother Mrs Rose Ozoemene Ifeoma attended, resident at 155 Bolton Avenue, Ilford, Essex. She produced her Nigerian passport showing that she was born on 3^rd October 1954, her passport number being A00066742, issued on 20^th October 2007. She stated that she was the biological mother of the Appellant, that her child had been born on 18^th June 1979 at 9:10 in the morning, she recalled she weighed three point seven five kilograms. She had registered her birth. Her husband was the child’s father. She produced documents relating not only to her identity but her husband’s identity and the marriage certificate.

10.

In relation to the Appellant’s father, Mrs Ozoemene’s husband, she stated that he had come here in 1963, he then became a UK citizen. She had married him when he had returned to Nigeria. She then produced a series of photographs. These were of different sizes and clearly of varying ages they went back showing a photograph of her daughter aged 3 months, pictures of her as a child, pictures of her in the youth corps, work, pictures of her wedding in 2007 with various members of the family, pictures of her own marriage with the Appellant’s father, it was very clearly a quite old picture of her and her sister when young girls. I was given a copy of the Appellant’s late father’s Nigerian passport, issued in London on 16^th January 1975, showing the previous passport indeed had been issued in 1963. The 1975 passport contained an indefinite leave to remain stamp dated 27^th August 1976. I was shown the original marriage certificate between her parents.”

The Immigration Judge concluded in this way:

“11.

At the conclusion of the mother’s evidence I found that she had given her evidence simply and clearly, there was a variety of documents as one would expect from such a source, establishing indeed that the Appellant was her daughter and that she was lawfully married to the Appellant’s father having British nationality. Although I find clearly there has to be grave doubts as to the Appellant’s evidence given her previous visa applications I am satisfied having regard to the documents and the evidence of her mother and tangentially that of her brother that she is the person who she states she is, that she is the [daughter] of a person with UK nationality and is therefore entitled to a certificate of entitlement of right of abode. The first appeal is therefore allowed.”

What he said about the veracity of C4 is largely reflected in paragraphs 5 and 6 of the decision which were in the following terms:

“5.

The essential difficulty evidentially relating to this applicant’s claim was firstly the fact that her original records of birth were not available and secondly as stated in the reasons for refusal concern by the Respondent as to the general authenticity, given her application to enter the United Kingdom on a visit visa made in Pretoria. The actual application in detail was not available to me. The Respondent however had from the database lodged the main details of the application. The application was refused for a number of reasons. The first being relating to concern as to the Sponsor’s bank accounts, that application being refused in Abuja on 22^nd October 2007.

6.

There was then a second application made in Pretoria giving indeed her father’s and mother’s name that was refused as there was a false declaration insofar as it certified this was the first passport she had had but biometrics’ fingerprints showed she had applied for and refused a visit visa in Abuja in October 2007. The entire credibility of her application was therefore in doubt and the application was refused. The veracity therefore of the Appellant’s evidence has to be treated very carefully.”

Although that appeal related only to C4, Miss Bond submits that it is highly material to all the Claimants. It constituted an unappealed decision of the First-tier Tribunal where certain documents were found by a Judge of the First-tier Tribunal to be genuine. In a nutshell, that fact plus the granting of a passport to C1 and Certificates of Entitlement to C2 and C3, in the absence of any positive allegation that fraud induced the granting of those certificates, precludes the Defendant, it is argued, from taking a different position subsequently.

The reality, of course, is that so far as the marriage certificate of the Claimants’ parents was concerned, no-one on behalf of the Defendant actually challenged its authenticity as a document at the hearing of C4’s appeal. It will be recalled that its authenticity was questioned about 3 years previously in the context of C1’s application, but the internal advice, as I have indicated, was that the concerns about it were not conclusive.

This raises the question, to which I will return, of whether it was open to the Defendant to raise questions again about that document in 2010 in the context of the matters to which I will now turn. It is right to say that there is nothing in the marriage certificate to alert anyone to the fact that the C4’s father had been married previously.

As a result of C4’s successful appeal (and an associated appeal on behalf of her son) she was granted entry clearance on 20 October 2009 and came to the UK.On 2 November 2009, she applied to the Liverpool Office of the IPS for a British Passport, providing a copy of her birth certificate, her parents’ marriage certificate and a copy of her father’s registration certificate and Nigerian passport and a copy of C1’s British passport. The application was counter-signed by someone who stated they had known her as a family friend for 13 years. Checks showed that the C4 had been on the electoral roll since 2006 although her Certificate of Entitlement to Right of Abode was only dated October 2009 and there were no other UK stamps in her passport. Accordingly, the application was referred for further investigation. The investigations involved a check with the police which appears to have taken a long time. It was not until 18 February 2010 that the result of that check, which was clear, was received.

Because of concerns about her identity, it was considered necessary to interview C4 and an interview was arranged in London which took place on 16 April. The records of the interview suggest that C4 confirmed the details of C1, C2 and C3, but omitted any information about her half-brother, Chinweze. Information about him had come to light as a result of information in the Claimants’ father’s Nigerian passport and the IPS contacted him by telephone and, as part of the information he supplied, he informed them of his father’s first marriage and his re-marriage to Rose though he said he was “not sure” if it was “official”. He made reference to C1, C3 and C4, but not to C2. The apparent discrepancies suggested the need for further investigation and C2 and C3’s British passports, which had been provided to the IPS during the course of the interview, were retained by the IPS.

A further interview was arranged for 12 May 2010. C1 and C4 attended and during this interview C1 confirmed that their father’s marriage to their mother was in fact a second marriage but that he did not have the divorce document of the first marriage. At that interview, C1’s passport was retained until the various identities were confirmed. It should be noted that, sadly, on 4 May (and thus only a week or so before this interview) Rose died in Nigeria. Her death, and the need for the family to arrange a funeral in Nigeria, prompted considerable efforts on their part, particularly C1 (who was the oldest son), to move things forward so far as the passports were concerned.

During the course of the investigations that continued, the IPS asked C4 to submit the divorce documents of her father. This request was made on 14 July although it appears that a request was made for this during the interview because C1 wrote to the investigating officer on 21 May saying that he had “still not [been] able to obtain the previous marriage/divorce certificates” of his late father and his first wife.

In August 2010, a copy of the first marriage certificate and of a divorce document were provided under cover of a letter from C1 which suggested that the documents had been obtained through their half-brother, Chinweze, who had been in contact with his mother. A telephone call to him resulted in him telling the investigators that he had not been in touch with his mother and that he had not supplied any documents to C1. The investigator thought the divorce paper (which was the decree absolute to which I have referred) “appeared fairly new for a document prepared in 1977.” The investigating officer said that C1 and Chinweze should provide contact details for C1’s father’s first wife to enable an interview.

C1 wrote to the IPS on 18 September saying that Chinweze had told him that his mother insisted that he should not hand over her contact details, something he had conveyed in a letter of 6 September also. C1 had previously stated (and there would be no reason to doubt it, as it seems to me) that he had never met or had any contact with his father’s first wife who, at some stage, was wrongly described as the “stepmother” of the Claimants. He did remind the IPS that the validity of the marriage certificate between his father and his (C1’s) mother had been accepted on three occasions before C4’s Certificate of Entitlement was granted. He was continuing to express concern that he could not travel to Nigeria to make arrangements for his mother’s funeral. In the next month or so C1 and C4 enlisted the assistance of their respective MPs. In a reply to one of the MPs the Director of the IPS said that the documents of C4’s “step mother” were required to establish the legitimacy of her (C4’s) claim to nationality. That reference to C4’s “stepmother” prompted a complaint about the use of the expression to the Parliamentary and Health Ombudsman’s office. It resulted in an apology from the IPS. However, it is tolerably plain that something of an impasse had been arrived at: if C1 was correct that his father’s first wife would not permit her contact details to be given and yet that was what the IPS wanted, there was going to be no resolution.

The documentation that had been provided to the IPS was sent to the Fraud Unit for assessment and although the Claimants’ father’s Nigerian passport was authenticated, the Fraud Unit was unable to authenticate the Claimants’ parents’ marriage certificate or the Claimants’ birth certificates. In consequence on 24 March 2011 the IPS decided it was unable to release the passports of C1, C2 or C3 or to issue C4 with a passport. That decision does not appear to have been based specifically on a failure to authenticate the divorce decree although the decision was made that day to forward the documentation to the British High Commission in Nigeria for authentication, including the divorce decree, but before this could be done, another interview was required and further documents were requested. The IPS also wrote to the Claimants’ half-brother and his mother inviting them for interview to assist with the investigation. It would seem they had contact details by this time, certainly of Chinweze.

Further interviews took place on 13 and 17 May. Chinweze identified C1, C3 and C4 as his half-siblings, but claimed not to know or recognise C2. One of the officers noted that she was satisfied about the identities of C1, C3 and C4, but there was an issue about C2 who would have to be interviewed. On or around 27 May a request was made to the FCO for verification of the documents provided which included the divorce decree concerning the marriage of the Claimants’ father and his first wife and the marriage certificate of his marriage to Rose. It also contained C4’s birth certificate. That is confirmed by an e-mail disclosed in an exhibit to Ms Gray’s witness statement.

On 1 June 2011 the British Deputy High Commission (‘BDHC’) in Lagos responded that the marriage certificate between the Claimants’ parents was “suspicious for several reasons, apart from the incoherent detail about the father’s marital status at the time”. This is obviously slightly different advice from that given in 2006 (see paragraph 16 above). However, the matter was to be looked into. In the circumstances it is, perhaps, worth recording what the person with responsibility for this at the BDHC in Lagos (who is simply identified as ‘K’ in the summary referred to in paragraph 10 above) said in the e-mail in response to the e-mail referred to in paragraph 37 above:

“We come across the same issue from time to time as you have regarding the status of fathers remarrying: we have also seen marriage certificates declaring the father is a ‘bachelor’ when in fact he had previously been married. Our approach is to ask the applicant to get a letter from the registrar who performed the marriage to explain exactly what the father’s status was at the time of the wedding. As you say, this can have a major influence on whether the applicant qualifies for citizenship.

But before you do this, I’d suggest that we should refer the Nsukka marriage certificate for checks. I’m suspicious of it for several reasons, apart from the incoherent detail about the father’s marital status at the time. Enugu is a long way from Lagos, so we won’t be able to go directly to the registry – but there is a helpful registrar in Lagos who should be able to give some more general advice.

It’s impossible to be certain without doing checks with the issuing authorities, but I’m happier with the decree absolute and the birth certificate – these look closer to the proper format for the time they purport to have been issued.”

There was then a very long delay during which the BDHC in Lagos was contacted 11 times for an update. The summary referred to in paragraph 10 above has several entries simply saying “no contact from K at BDHC Lagos”. Eventually on 30 July 2012, K at BDHC Lagos informed the IPS by telephone that authentication of the documents “has not been possible as they do not have the facilities to cover the region from which they [were] derived.” The conclusion reached by the IPS was that C4’s identity and status could not be confirmed and, accordingly, her claim to a passport would be refused and that the passports of C1, C2 and C3 would not be returned for the same reason. This was communicated to the Claimant’s solicitors in a letter dated 30 July 2012 in response to a pre-action protocol letter dated 25 May 2012. The Claimants were advised to contact the UKBA to enquire if they might be able to naturalise as British Citizens.

One of the documents that it was said it was not possible to verify was the divorce decree. It might have been thought that the message from BDHC Lagos upon which the IPS relied for the purposes of the 30 July 2012 conveyed the suggestion that no further efforts were to be made to verify any of these documents - the areas concerned were too far away and that was the end of the matter. However, on the day of the hearing before me, Ms Dehon revealed to Ms Bond a letter that she had seen only that morning, namely, a letter from the Lagos State Judiciary to the BDHC in Lagos confirming that the decree absolute dated 10 May 1977 (evidencing the divorce between the Claimant’s father and his first wife) was genuine. The letter was dated 22 May 2013 and was in response to a letter from the BDHC Lagos dated 24 April 2013. That letter was not available to be reviewed by the court and I was told that the chain of correspondence, electronic or otherwise, if there was one, would not have been retained. At all events, almost exactly two years after the BDHC in Lagos was asked to verify the decree absolute as one of the documents, and about 10 months after it had confirmed that the area from which the documents emanated was too far away to be covered by the BDHC, the document confirming the authenticity of one of these documents was received.

That particular document emanated from Lagos so it is difficult to know why it was said that the region from which it came was too far away, but there it is. I do not consider that a sufficiently satisfactory explanation has been given for the circumstances in which this verification has taken place and a not unreasonable inference is that, in fact, nothing was done to pursue this line of investigation at the time and that it has only been pursued in the knowledge of the present court proceedings: since there was no response from BDHC Lagos during the period mentioned in paragraph 39 above, there is no evidence upon which it can be concluded that positive steps were being taken to follow up the authenticity of this document. However, the fact is that one of the documents questioned by the Defendant has now been authenticated. It was, it will be recalled, one of two documents sent to Lagos in May 2011 about which ‘K’ expressed him or herself “happier” in that they looked “closer to the proper format for the time they purport to have been issued”.

‘K’ also said at the time that Enugu (which is where the marriage certificate would have been issued) was too far for the BDHC to “go directly to the registry”, but that there was a helpful local registrar who could give general advice. As to the distance, I understand that Enugu is 282 miles from Lagos. I confess that I do not understand why, at this stage in the modern day world of electronic communication, it is not possible for a request for a scanned copy of an original document in the registry in Enugu to be made by the BDHC. Unless there is well-evidenced distrust of communications that emerge from that registry, one would have thought that confirmation of the existence of the certificate at the registry (plus sending a scanned version to compare it with the document that the BDHC held) would be enough to confirm its authenticity or otherwise. If, of course, no original is found that compares with the copy sent to the BDHC from the UK, that would be compelling evidence that the certificate proffered by the Claimants is a forgery. Having said all that, I have no evidence about whether electronic communications in Nigeria, or certain parts of Nigeria, work as one would expect in the UK or elsewhere.

The same general comments apply to the birth certificate of C4. This, to be genuine, must emanate from the Enugu region. Some reference was made in the summary referred to in paragraph 10 above to the need in C4’s case to obtain documentation from the BHC in Abuja which is where C4 made her first application for a visit visa. This was first raised, according to the summary, on 30 May 2012. Although there was some delay (because the BHC in Abuja was moving location), the application she had made was received before the letter of 30 July was written. It does not seem, therefore, that anything in the file from Abuja was considered to be of relevance to the decision made in July 2012. What had not been achieved by then was authentication of the marriage certificate, C4’s birth certificate and the divorce decree.

Was it Wednesbury unreasonable to have taken the decision that was effectively confirmed on 30 July 2012 (see paragraph 46 below)? Ms Dehon’s response to this question is expressed thus in her skeleton argument:

“Throughout the relevant period, the Defendant’s officers attempted to verify the Claimants’ entitlements through investigating the validity of the documentation they produced and through the conducting of interviews. This was the proper course of action for officers to take and cannot be impugned as unreasonable. The results of their inquiries have not been conclusive – legitimate concerns have been raised about the validity of certain documents; the information provided by the Claimants’ half-brother in interview gave rise to legitimate concerns and the Claimants’ father’s first wife had refused to assist. Accordingly, both the validity of Iwegbune Ozoemene’s divorce from his first wife, Iruka Comfort Ozoemene, and the validity of his marriage to the Claimants’ mother, Rose Ozoemene, are in doubt. In the circumstances, it is reasonable for the Defendant not to be satisfied that the Claimants are entitled to British passports.”

I am bound to say that I have very considerable reservations about how assiduously the various enquiries were conducted, if indeed they were pursued at all. In the first place, the recent emergence of confirmation of the authenticity of the divorce decree is a very surprising development given that the positive response from the relevant authority in Lagos came within a month of the request from the BDHC (see paragraph 40 above). Second, there is no evidence in the summary referred to in paragraph 10 above or any of the other documentation that any enquiry was made of the registrar in Lagos who was said to be helpful concerning the authenticity of the marriage certificate. Third, there is no evidence in the foregoing documentation of any attempt to validate either of the documents said by C4 to be evidence of her date of birth (namely, a registration of birth from the maternity hospital and a formal birth certificate apparently issued by AWKA South Local Government on 6 May 2009 evidencing her birth on the same day as indicated in the document from the hospital).

When confronted by the suggestion that the personnel at the BDHC in Lagos could have done more, Ms Dehon says that it is not for the Secretary of State, through her agent, to establish the Claimants’ case; it is for them to do so. I agree that that is what is required, but if the Claimants produce documents that are not obvious forgeries (and the highest that it has been put in respect of the documents is that there are suspicions about them), it does seem to me to be incumbent on the Defendant to take all reasonable steps to find out whether they are genuine or not. The evidence does not, to my mind, indicate that any real efforts were made in the period between May 2011 and July 2012 to seek to verify the three particular documents sent to BDHC Lagos for verification. It was the impossibility (it was said) of their verification that led to the refusal of C4’s application for a British passport and for the continued withholding of the passports of the others. The precise way in which the decision was communicated was as follows:

“We have now received communication from the British High Commission in Lagos who has advised that the authentication of your client’s documents has not been possible as they do not have the facilities to cover the region from which these documents were derived. As we are unable to authenticate these documents we are therefore unable to establish your client’s eligibility to hold a British passport, and for that reason we can not grant passport facilities. Passports for Eze, Ikechukwu and Nkechi have been impounded for the same reason.”

There are other matters (e.g. the evidence that Chinweze did not recognise C2 and that C4 did not know of Chinweze) that may raise other suspicions, but the reason actually given by the Defendant for the decision taken and evidenced in the letter of 30 July 2012 was as indicated in paragraph 46 above. Since that was the reason given and I am not satisfied that there was a sufficient evidential basis to justify it, I can see no alternative but to quash the decision. That does not, of course, mean that the Claimants are necessarily entitled to British passports: all it means is that the Defendant must reconsider the position, doubtless in the light of the existing evidence and any new evidence that is available or that the Claimants provide.

I should make one thing plain: I am very conscious that there are very significant concerns about the authenticity of official documents emanating from Nigeria. Recent evidence of this is to be found in the Nigeria Country of Origin Information (COI) Report June 2013 which contains a section entitled ‘Forged and fraudulently obtained official documents’, one paragraph of which reads as follows:

“31.02

The British-Danish 2008 Fact-Finding Mission (FFM) Report, dated October 2008, stated:

‘The FFM delegation interviewed the Deputy Director for West Africa, UK Visas, British Deputy High Commission, Lagos, about documentation and forgery issues. He stated that corruption is endemic in Nigeria and the use of forged documents is widespread. Any printed official document can be forged. Genuine official documents such as birth, marriage, divorce, and death certificates, ID cards, driving licences and passports can be obtained from officials by bribery. Furthermore, information contained in genuine official documents is often false, inaccurate or cannot be relied upon. Documents that are submitted in support of UK visa applications have to be rigorously examined and checked.

‘An Entry Clearance Officer (ECO), based at the British Deputy High Commission in Lagos, was also interviewed about documentation and forgery issues. (ECOs are officials who have the authority to issue visas). He reiterated the fact that corruption is endemic in Nigeria and that any kind of printed official document can be forged. He also stated that documents submitted in support of visa applications, as noted above, have to be rigorously examined and checked.’”

This inevitably means that suspicion may arise in many cases as to the authenticity of documents. It must, of course, always be borne in mind that there are or may be genuine cases. In the report of the International Organization for Migration entitled ‘Migration, Human Smuggling and Trafficking from Nigeria to Europe’, published in March 2006, the following sentence appeared:

“However, the forgeries and the suspicion they create may also affect bona fide applicants who are then also unjustly suspected of submitting incorrect documentation.”

I am not in a position to say whether this is a genuine case or not and indeed the decision is not mine in any event. All that one can observe at this stage is that one document which was questioned initially (on perfectly legitimate grounds) has now been found to be authentic. That does not establish the Claimants’ case nor does it operate to authenticate the other questioned documents or necessarily resolve other doubts that have arisen, but it is at least a start.

I do not consider that the conclusions of the Immigration Judge avail the Claimants on these issues. If the marriage certificate had been produced at the first hearing of the appeal so that the Defendant would have had the opportunity to question its authenticity at the renewed hearing in September, but either failed to do so or, having done so, a positive conclusion was made by the Immigration Judge that it was authentic might have prevented the Defendant from questioning its authenticity subsequently. However, the issue was never truly joined in those proceedings and I do not consider that anything decided in that appeal is conclusive on the authenticity of the marriage certificate.

The fact that C1 was granted a passport and C2 and C3 were granted certificates of entitlement are undoubtedly matters of relevance when looking at the whole of the evidence in support of the Claimants’ position. Indeed, consistent with the view of Burnett J in Ali (see paragraph 12 above), where such a decision has (or such decisions have) been made in the past, cogent reasons for taking a different stance subsequently would be required. It seems to me that it is a factor that the Defendant should have taken into account, but it cannot, in my view, in the circumstances of this case be conclusive in the Claimants’ favour. If substantial and well-founded suspicions have arisen since the certificates were issued, it would be wrong to go further and uphold the right to a British passport when legitimate concerns have been raised about whether the certificates should have been granted. However, that does beg the question of whether there are substantial and well-founded reasons for doubting the validity of the documents advanced in support of the Claimants’ applications. As things stand, I am not satisfied that the Defendant has been entitled so to conclude.

For the reasons I have given, I consider that the decision made, as reflected in the letter of 30 July 2012 and for the reasons given in the letter, must be quashed and that the decision must be remitted to the Defendant for reconsideration in the light of this judgment and any further evidence that becomes available in the meantime. If the Claimants offer to fund the costs of any material part of the investigation that may be necessary, then the offer should be given serious consideration by the Defendant provided that it does not affect the integrity of the investigation process.