Miah, R (on the application of) v Secretary of State for the Home Department

The claimant, Md Sanu Miah, seeks to challenge the decision of the Secretary of State for the Home Department (“SSHD”) to remove him from the United Kingdom as an illegal entrant under Schedule 2 to the Immigration Act 1971.

Mr Miah was born in Bangladesh on 23 October 1965.

His father, the late Tobarak Ali, was naturalised as a British Citizen on 1 December 1960, more than five years before Mr Miah’s birth.

Tobarak Ali and Hasina Khatun, Mr Miah’s parents, married on 6 March 1946, nearly 20 years before his birth.

SSHD accepts that if Mr Miah is telling the truth, he would be entitled to a Certificate of Entitlement to the Right of Abode in the United Kingdom (“Certificate of Entitlement”). Mr Poole also accepted (for example in paragraph 24 of his Skeleton Argument) that Mr Miah, if he is telling the truth about his parentage, is a British citizen within section 2(1)(a) Immigration Act 1971.

On 11 January 2001, Mr Miah was issued with a Bangladeshi passport no 0061804 (“2001 passport”).

On 9 June 2002, the British High Commission in Dhaka, Bangladesh endorsed Mr Miah’s 2001 passport with a Certificate of Entitlement marked “valid for presentation at a United Kingdom port within the validity of this passport”.

On 26 June 2002, Mr Miah entered the United Kingdom, using his 2001 passport.

Mr Miah claimed that the endorsement was made following a successful appeal to the Immigration Tribunal, although until a couple of days before this hearing, he had not been able to produce the Tribunal’s determination. However, now that Tribunal determination has been produced, it turns out to be highly significant to the outcome of these proceedings.

On 11 July 2011, following expiry of his 2001 passport, the Bangladesh High Commission in London issued Mr Miah with a new Bangladeshi passport no 1954810 (“2011 passport’). The 2011 passport does not contain any Certificate of Entitlement.

On 3 October 2011, Mr Miah applied for a British passport. After repeated requests, the Passport Office replied on 26 February 2013 and 7 March 2013 that his application was still under consideration.

The Passport Office asked Mr Miah to attend an interview on 9 October 2014, and to bring with him any original certificates relating to his birth; his father’s nationality; or the marriage of his father.

Mr Miah did not attend on 9 October 2014 but a week later, on 16 October 2014, he went to East London Immigration Compliance & Enforcement, Becket House. There, he was interviewed under caution due to concerns about the validity of the Certificate of Entitlement in his 2001 passport.

That same day (16 October 2014), SSHD made a decision to remove Mr Miah from the United Kingdom. The decision, served on Mr Miah on 20 October 2014, gave the following reasons:

Mr Miah challenged that removal decision by way of judicial review on 16 January 2015.

After consideration of the papers, permission was refused. However, permission was granted after an oral hearing on 18 February 2016.

Mr Miah contends that as his late father was a British citizen, he too is a British citizen by descent.

Mr Miah relies on s.2(1) and s.5(1) British Nationality Act 1948 (“BNA 1948”) that:

Mr Miah also contends that, by virtue of s.2 of the Immigration Act 1971 (“IA 1971”), he has a right of abode in the United Kingdom. He relies on s.2 (1)(a), which reads:

Under s.3(8) IA 1971, the burden of proof of citizenship lies on Mr Miah:

As regards his entry into the United Kingdom in 2002, Mr Miah relies on s.3(9)(e) IA 1971:

Under s.82(2)(c) of the Nationality, Immigration and Asylum Act 2002 (“NIA 2002”), refusal of a certificate of entitlement gives a right of appeal to the Tribunal.

However, apart from this right of appeal, the procedure for applying for a certificate of entitlement used to be otherwise unregulated, except as regards fees. There was no case law, and no immigration rules, to give guidance as to when and to whom a certificate of entitlement could and should be issued.

Since 2006 though, the issuing and revocation of certificates of entitlement have been governed by the Immigration (Certificate of Entitlement to the Right of Abode in the United Kingdom) Regulations 2006 (“2006 Regulations”). Regulation 6 states:

By Regulation 10, a certificate of entitlement issued before the 2006 Regulations came into force ceases to have effect on the expiry of the passport or travel document to which it is affixed.

The Explanatory Memorandum accompanying the 2006 Regulations records that Regulation 10 was:

The SSHD’s policy in relation to right of abode at the time applicable to Mr Miah’s case was set out at Chapter 57, Volume 1, Nationality Directions. Paragraph 1.4 stated:

Paragraph 4.7 of that policy stated:

As regards removal, Schedule 2 IA 1971 provides:

At the start of the hearing, Mr Poole sought to persuade me on behalf of SSHD that Mr Miah has an adequate alternative remedy to challenge the removal decision – namely by means of an out-of-country appeal – which should be enough to dispose of this judicial review, without the necessity to call the witnesses who had attended to give evidence and be cross-examined.

I did not accept that submission. First, I considered the authorities cited to me (relevant extracts from which are set out in paragraphs 56 to 62 below). I noted in particular Lord Justice Aikens’ words in R (RK (Nepal)) v. SSHD [2009] EWCA Civ 359 (as set out in paragraph 58 below) about “special or exceptional factors” which might lead the High Court to exercise its discretion in favour of judicial review.

I noted that in Mr Miah’s case, permission for judicial review had already been granted, witnesses had been directed to attend and had done so. It was therefore possible, and it seemed to me desirable in the interests of the overriding objective under the Civil Procedure Rules (namely enabling the court to deal with cases justly and at proportionate cost), to hear that evidence straightaway rather than postpone that process to another occasion before a different tribunal. In my view too, last minute material presented by Mr Miah’s counsel (having himself only lately received the document from HM Courts & Tribunal Service) cast a totally different light on the adequacy, necessity and appropriateness of an out-of-country appeal as an alternative to judicial review.

Overall, I found the circumstances of this particular case sufficiently “exceptional” and “special” to make it appropriate to use judicial review to challenge the decision to removal Mr Miah from the United Kingdom rather than challenge that decision by means of an out-of-country appeal.

As indicated, I return to these topics later in this judgment.

Once I had rejected Mr Poole’s preliminary submission, three witnesses proceeded to give live evidence under oath and were cross-examined.

For reasons I shall explain later, the evidence the witnesses gave was of limited importance to my decision in this case. However, in summary the oral evidence focused on the unreliability of the documentation that Mr Miah had provided to HM Passport Office in relation to his application for a British passport.

Mr Miah gave evidence through an interpreter since he is unable to speak more than basic English. He is also essentially illiterate – at least in English. Mr Miah appeared confused by some of the questions asked of him. However, he asserted that he is a British citizen and entitled to live in the United Kingdom so cannot lawfully be removed.

Much of Mr Poole’s cross-examination of Mr Miah was about the documents that he had produced to the Passport Office and then, in October 2014, to the Immigration Enforcement Officer. Mr Miah could not remember exactly when, and from where, he had obtained these documents, which the SSHD has since found “unreliable”. However, Mr Miah stated that he had not altered them himself and that any errors in them were “probably mistakes by officials”.

Mr Poole accepted that no forgery or fraud is alleged against Mr Miah himself. The SSHD’s case is that the documents are “unreliable” – and that while they may have been fraudulently altered, there is no suggestion that Mr Miah was in any way involved in fraud.

In support of the claim that the documents were unreliable, Mr Poole called evidence from Mr Anthony Bull. Mr Bull is an Immigration Officer who for most of his 27 year career, has worked in immigration enforcement. Part of that role requires Mr Bull to examine identity documents (primarily passports but also other documents such as birth certificates) for evidence of forgery, counterfeiting and other unlawful alteration or abuse. In October 2014, Mr Bull had been asked to review a photocopy of the duplicate birth certificate that Mr Miah had provided in connection with his British passport application.

At the hearing, Mr Bull described the missing “E” from “People’s Republic of Bangladesh” in the typed heading on Mr Miah’s duplicate birth certificate as “so glaring that anyone would spot it”. On the single page report Mr Bull had written on 9 October 2014, rather than tick boxes that the document had been altered, fraudulently obtained or was counterfeit, Mr Bull had instead ticked the boxes “I am unable to conclude on the authenticity of the document” and “The document should not be relied upon as evidence of nationality or identity”. Mr Bull had added to his report that he had “searched and viewed many other documents issued by the government of the People’s Republic of Bangladesh and could not find this spelling error repeated or mentioned…”

Mr Bull accepted that working from a photocopy had limited the extent of investigation it was possible to carry out. His examination had been “basic”, essentially of layout and typography only. Mr Bull had himself conducted internet searches for images of Bangladeshi birth certificates but was not sure that he had checked the Immigration Services’ own intranet sources. However, Mr Bull said that he had himself seen clear evidence from which he had concluded that the birth certificate could not be relied on. He was not aware whether the documentation had been referred to the Service’s National Fraud Unit (“NFU”), which has more sophisticated equipment. However, as the document in this case was only a photocopy, in his view full examination by the NFU would probably not have revealed more than his own examination could.

Mr Poole also called as a witness Mrs Erica Archibald (nee Richards). At the time of investigation into Mr Miah’s documentation, Mrs Archibald had been employed within the Immigration Enforcement team based at Becket House. She had been the sole designated officer appointed to consider Passport Office concerns about suspected fraudulent claims to acquisition of British passports. At the hearing, she estimated that during her time in post (2013-2015), she had undertaken 10-15 investigations of this type per year. She had been trained to conduct interviews under caution in accordance with the Police & Criminal Evidence Act 1984.

Mrs Archibald’s witness statement in this case (in her former name of Miss Richards) included the statement that, “In order to facilitate my investigations, I had available to me the full Home Office file of the subject. This would contain all information pertaining to the subject’s immigration history to include applications for Entry Clearance and such like. I also had access to Home Office databases such as CRS (Central Reference System) and CID (Case Information Database).” However, Mrs Archibald was not cross-examined on this aspect of her written statement, so it is unclear what information was available to her from these sources about Mr Miah’s entry into the United Kingdom in 2002.

Mrs Archibald testified that she had interviewed Mr Miah under caution on 16 October 2014. She had made manuscript notes that she had then typed up. During the interview, she had put to Mr Miah questions about inconsistencies in the documents he had provided.

Mrs Archibald had recorded on the Form IS.126(E) which she had completed within an hour of the interview’s end that Mr Miah had repeatedly stated that the documents were genuine, despite the three principal inconsistencies she had put to him:

In Mr Miah’s parents’ marriage certificate, two dates had been “scratched out” and replaced with different dates. Mrs Archibald described the document as having been “doctored” and that one change of date - of the marriage solemnization (from 1977 to 1946) - would “make the difference of the subject being related to the father as claimed as the subject was born in 1965”;

Both certified copies of his birth certificate (one provided with his application, and the other which he had brought to the interview) contained a spelling mistake: the second “E” in “People’s Republic” in the heading was missing;

The Naturalisation Certificate Mr Miah had provided in respect of his father showed the latter’s date of birth to be “02-11-1910” whereas the “exact same copy of the same page” produced from storage showed the date of birth as “02-10-1910”.

For these reasons, Mrs Archibald’s report on the Form IS.126(E) dated 16 October 2014 stated that: “…I therefore believe that I have produced evidence to a high degree of probability, that the subjects (sic) does not qualify for right of abode nor should he have been granted his first right of abode status…”

Her report continued: “…I have considered all the information available to me and I am satisfied that Md Sanu Miah is an illegal entrant.. HMI Tulett has also considered whether it is appropriate to treat Md Sanu Miah as an illegal entrant and… is satisfied that the prejudice he may suffer is not such that it is unfair to serve him with form IS151A Notice to a Person Liable to Removal.”

During cross-examination, Mrs Archibald admitted that she had herself made a mistake as to dates in her report: she had transposed the dates of the two versions of the Naturalisation Certificate. The Naturalisation Certificate produced by Mr Miah showed his father’s birth date of 02-10-1910, and the version produced from storage showed 02-11-1910, the reverse of what she had written in her report. Mrs Archibald also accepted that she had not referred to a forgery expert or local team forgery officer the Naturalisation Certificate (or rather both copy versions of it) nor Mr Miah’s parents’ original marriage certificate. Only Mr Miah’s duplicate birth certificate had been checked for forgery (by Mr Bull, a week prior to Mrs Archibald’s interview of Mr Miah).

Nevertheless, Mrs Archibald maintained that the inconsistencies she had identified indicated that the documents had been “falsely doctored”, and that she was justified in reaching this conclusion on the information available to her.

Also presented at trial was a copy of the Determination & Reasons dated 15 April 2002 of the Immigration Tribunal. That copy document (“the Tribunal Determination”) had been provided by HM Courts & Tribunal Service in response to a request by Mr Miah’s solicitors, but it had arrived only very shortly before the hearing of this judicial review. There was no suggestion by Mr Poole that the copy Tribunal Determination produced at trial was anything other than authentic.

The Tribunal Determination showed that the Immigration Adjudicator, Mr G F Denson, had found as a matter of fact that Mr Miah was the lawful son of the late Tobarok Ali, a British citizen by registration, and was thus entitled to a Certificate of Entitlement. Mr Denson had therefore allowed Mr Miah’s appeal against refusal to grant him a Certificate of Entitlement.

The evidence on which Mr Denson had relied in making his determination was Tobarok Ali’s British passport; a copy of Mr Miah’s brother’s Pakistan passport showing his father’s name and date of entry into the United Kingdom; and a copy DNA blood test report (showing a 99.999% probable kinship between Mr Miah and his brother as brothers of the same parents). Significantly, the Tribunal Determination shows no reliance on - or even mention of - any of the documentation that in this case the SSHD has treated as “unreliable”.

As a result of my conclusion about the significance of the Tribunal Determination - on which I elaborate further below - I find much of the previous pleadings in this case, many of Counsels’ submissions, and their references to authorities, are not material to the decision I have to make. Whilst I have carefully considered all those submissions and authorities, I refer in this judgment only to those that have assisted me in deciding the outcome of this case.

Mr Karim submitted that his Grounds 1 and 2 (alternative remedy, and precedent fact) should be dealt with together because it is a fundamental aspect of nationality law that someone who has a right of abode, or is a British citizen, is not subject to immigration control. Mr Poole did not challenge the proposition that a British citizen is not subject to immigration control. Indeed, Mr Poole accepted (see paragraph 5 above) that if Mr Miah is telling the truth, he is entitled to a Certificate of Entitlement.

Mr Karim further submitted that the question whether Mr Miah is a British citizen is a precedent fact which, rather than being subject to an out-of-country appeal, if disputed has to be litigated in the High Court. He cited in support of this submission, Lord Justice Sedley’s judgment in R (Lim) v. SSHD [2007] All ER (D) 402 (Jul) at paragraph 19:

Mr Poole, however, pointed out that Sedley LJ’s remarks at his paragraph 19 were obiter; that Lim is a case involving s.10 Immigration & Asylum Act 1999 (“IAA 1999”) not paragraphs 8 to 10A of Schedule 2 IA 1971 (as in Mr Miah’s case); and that in Lim, Sedley LJ had said that an issue such as alleged breach of a claimant’s conditions of entry:

Mr Poole also pointed out that, as Lord Justice Aikens, approving Lim, said in RK (Nepal) (at paragraph 32):

This, Mr Poole said, shows that issues of precedent fact should normally be dealt with not in judicial review proceedings but rather in the out-of country appeal procedure. He submitted that the allegations that Mr Miah was an illegal entrant who presented unreliable and altered documents were not matters of precedent fact which the High Court should consider for itself, but should be resolved by the out-of-country procedure prescribed by Parliament.

Mr Poole cited in support of that proposition Beatson LJ’s statement in R (Mehmood & Ali) v SSHD [2015] EWCA Civ 744 (at paragraph 52) that:

Mr Poole submitted that if anyone who simply asserts that he is a British citizen can immediately come to the High Court and circumvent the statutory appeal procedure, it would drive a coach and horses through the statutory scheme and must therefore be wrong in principle.

However, though not cited to me in argument, paragraph 34 of Aikens LJ’s judgment in RK (Nepal) seems pertinent here:

In this case, however, it is precisely whether Mr Miah is a British citizen (or rather was and is entitled to a Certificate of Entitlement) that is the core issue – and one of the “precedent fact” issues that Sedley LJ expressly referred to in Lim (albeit obiter since that was a case involving s.10 IAA 1999, not Schedule 2 IA 1971). At the very least, it seems to me that in the unusual circumstances of this case - particularly the existence of a prior judicial determination of the very issue in question here - there is a “special and exceptional” circumstance of the kind that would enable the High Court to exercise a discretion in favour of judicial review rather than an out-of-country appeal.

I therefore reject Mr Poole’s submission that Mr Miah’s “remedy” against his removal decision is an out-of-country appeal. This case is not a s.10 IAA 1999 case relating to a foreign national, nor an example of an individual “asserting” that he is a British citizen, seeking to circumvent the legitimate appeal mechanism of the statutory scheme and the SSHD’s decision-making by bringing a judicial review claim to the High Court. On the contrary, the challenged decision in this case was made on the basis that Mr Miah was an illegal entrant liable to removal under Schedule 2 IA 1971. However, there already exists a prior Tribunal Determination made some 15 years ago which expressly states in Mr Miah’s favour that, “…he is the lawful son of a British citizen and thus entitled to a Certificate of Entitlement.”

In my view, Mr Karim was right to point out that a weakness in Mr Poole’s submissions is that the cases and dicta on which he relies (in Mehmood; R(Giri) v SSHD [2015] EWCA Civ 784; R (Gazi) v SSHD [2015] UKUT 439 (IAC); R (Kalluri) v. SSHD [2015] EWHC 4073; SM & Qadir v SSHD [2016] UKUT 00229 (IAC); and R (Islam) v. SSHD [2016] EWHC 2491 (Admin)) all arise in the context of foreign nationals seeking leave to remain, and the issues in those cases arose due to individuals’ non-compliance with conditions as to entry or leave. In those sorts of cases, it seems entirely appropriate that the statutory scheme involving an out-of country appeal should generally apply.

This case, by contrast, involves an individual who has lived in the United Kingdom now for 15 years (latterly with his wife and six children), who claims to be a British citizen with a right of abode, who entered the country on the basis of a Certificate of Entitlement (granted to him following a successful appeal to the Tribunal), and who came to the attention of the authorities because he sought a British passport. SSHD’s suspicions were aroused as a result of the unreliability of the documents Mr Miah was asked to provide in relation to his British passport application, not because of any breach or non-compliance with conditions of leave or entry to the United Kingdom. The issue here is whether SSHD’s suspicions justified the conclusion that Mr Miah’s original entry to the United Kingdom many years earlier was illegal. In my view they did not, for reasons I set out below.

Mr Poole submits that the 2006 Regulations – expressly introduced to address concerns about fraud in the obtaining of Certificates of Entitlement – and/or s. 3(8) IA 1971 (that if British citizenship is disputed, the burden of proof lies on the person claiming it), justify the SSHD’s conclusion. He effectively said that, on the basis of material available to the decision maker at the time, Mr Miah’s “unreliable” documents amounted to evidence, or even proof of deception, such that he did not qualify for right of abode, nor should have been granted his first right of abode status. I do not accept that submission.

In my view, the most serious flaw in the SSHD’s case is the assumption that Mr Miah used those same “unreliable” documents to enter the United Kingdom in 2002. Such assumption was clearly made by Mrs Archibald, the Immigration Officer who interviewed Mr Miah under caution, because she gave it as her reason for immediately issuing him with a form IS.126E (see paragraph 14 above). That assumption is also clearly adopted by Mr Poole: as he puts it at paragraph 31 of his Skeleton argument, “…the dispute [in this case] …essentially turns on whether the documents he relied on when applying for a British passport in 2014 (sic), being those that he also relied on in 2002, are unreliable. (emphasis added)

The Tribunal Determination reveals this assumption to have been false and hence the basis for the SSHD’s removal decision, and her defence in this case, untenable.

The Tribunal Determination is not merely “evidence” which Mr Miah could produce at an out-of-country appeal but is a judicial determination of the very issue at stake here: in short, the issue is res judicata. It would thus be absurd as well as unfairly prejudicial to Mr Miah and wasteful of public funds to suggest that Mr Miah can, and must, first be removed from the United Kingdom and then appeal to the Asylum & Immigration Tribunal in order to establish all over again something already judicially determined by the Immigration Tribunal, namely that he is the lawful son of a British citizen and thus entitled to a Certificate of Entitlement.

In short, there was a judicial decision 15 years ago – as recorded in the Tribunal Determination – that Mr Miah is (and was in 2002) entitled to a Certificate of Entitlement. Most significantly, that Tribunal Determination was made on a factual basis wholly independent of the documentation now in question.

It therefore appears to me that, whether characterised as a matter of precedent fact on the basis of evidence presented at this hearing, or solely by reason of the Tribunal Determination rendering the issue res judicata, the Tribunal Determination provides a clear basis for this court finding that:

Mr Miah was not an illegal entrant to the United Kingdom in 2002;

as the legislative framework makes clear, as does SSHD’s policy at the time (see paragraph 27 above), right of abode is not a matter for Ministerial decision but a statutory right;

Mr Miah is a British citizen by descent in accordance with s. 2(1) and s.5(1) BNA 1948;

the removal provisions of Schedule 2 IA 1971 therefore do not apply to Mr Miah, irrespective of the unreliability of documents he has since produced in a different context for a different purpose.

For these reasons, I find that the decision under challenge in this case – namely the SSHD’s removal decision dated 16 October 2014 – is unlawful and should therefore be quashed.

I order accordingly, and also order that the SSHD shall pay Mr Miah’s costs, to be assessed if not agreed.

I conclude by observing that it is very unfortunate that SSHD was apparently unaware of the existence of the Tribunal Determination, despite the decision maker in this case having access to Home Office files and databases with information about Mr Miah’s immigration history. It seems that Home Office files and databases were either incomplete, or were inadequately examined, or that there are broader failures of communication between the various limbs of Government such as HM Courts & Tribunal Service, the Foreign & Commonwealth Office and the Home Office. The consequence is that Mr Miah’s passport application has now been outstanding for over six years; his Bangladeshi passport has presumably been in the hands of the authorities during the whole of that period and therefore unavailable to him; and through no fault or wrongdoing on Mr Miah’s part, the threat of removal has been hanging over him and his family for over three years. This is highly regrettable.