Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
Mr Justice Andrew Baker
Between :
The Queen (on the application of MALVIN GEORGE HARDING) | Claimant |
- and - | |
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
Rajiv Sharma (instructed by D J Webb & Co) for the Claimant
Catherine Rowlands (instructed by the Government Legal Department for the Treasury Solicitor) for the Defendant
Hearing date: 15 February 2017
Judgment
Mr Justice Andrew Baker :
Introduction
The Claimant is a young man, now 21, having been born in Lewisham on 13 September 1995. His mother is Mrs Marilyn Harding (née Ademu-John). She was born in Sierra Leone, to Sierra Leonean parents, in 1971. She was not a British citizen or settled in the UK when the Claimant was born. However, she later became, first, settled in the UK under a grant of indefinite leave to remain, on 1 November 2002 when the Claimant was 7, and, second, a British citizen under a naturalisation certificate issued on 3 October 2007, when the Claimant was 12.
In September 1996, Mrs Harding married Allieu Ibrahim Kanu, a British citizen born in Manchester in 1970. The Claimant says that Mr Kanu is his father, first and foremost because Mrs Harding says so, although also by reference to other evidence.
Mrs Harding and Mr Kanu divorced in June 2001. Later that year, in Sweden, she married George Chukuma Harding. To avoid confusion, since by deed poll the Claimant’s name is now also Harding, ‘Mr Harding’ in this judgment will always mean George Chukuma Harding and not the Claimant. Mr Harding was born in Sierra Leone in 1968. It seems he may have become a British citizen in 2000.
By letter dated 27 October 2015 to the Claimant’s solicitors, HM Passport Office (‘HMPO’) communicated its decision that the Claimant’s application for a UK passport “will now be withdrawn”. That appears to be HMPO’s way of describing what was, in substance, a decision to refuse to issue the Claimant with a British passport as sought by him. That final decision letter was the culmination of something of a saga that I shall need to describe in a little more detail. For introductory purposes, it is enough to say that it evidences HMPO’s conclusion that it would not issue a passport to the Claimant since it was not satisfied that the Claimant is a British citizen under s.1(1) of the British Nationality Act 1981 (‘the 1981 Act’). The Claimant is a British citizen under s.1(1) only if he is Mr Kanu’s son. There is more to the letter than that, but that suffices to set the scene, not least because the precise purport of what it said in more detail is one of the disputed questions that I must decide.
If the Claimant is not a British citizen under s.1(1) of the 1981 Act, then on 1 November 2002 he acquired a right to be registered as a British citizen under s.1(3) when his mother became settled in the UK while he was a minor (see s.1(3)(a)). From 3 October 2007, he had that right on the additional ground also that his mother had become a British citizen (s.1(3)(a) again). But that right was conditional upon an application for his registration as a British citizen being made while he was still a minor (see s.1(3)(b)), i.e. on or before 12 September 2013. The benefits of British citizenship by birth under s.1(1) and registered citizenship under s.1(3) are not materially identical. I was referred in particular to the fact that British citizenship under s.1(3), unlike that under s.1(1), is not passed at birth to children born abroad, that being the effect of the words “otherwise than by descent” in s.2(1)(a) of the 1981 Act.
Permission and Grounds
By an Order dated 9 June 2016, Karen Steyn QC, sitting as a judge of the High Court under s.9 of the Senior Courts Act 1981, granted permission to the Claimant to seek a judicial review of the October 2015 decision letter. This is my judgment upon the substantive hearing of the claim. The grounds upon which permission was sought and granted were these:-
Ground 1: “that [the] decision to refuse to issue [the Claimant] with a British passport, in the absence of any dispute as to [his] nationality as set out in [the claim], is irrational and Wednesbury unreasonable” (my emphasis);
Ground 2: that the Secretary of State, through the decision to refuse the Claimant a British passport, has acted contrary to policy and the Claimant’s legitimate expectations, having regard specifically to his prior treatment as eligible for a passport and the ‘Administrative Recognition’ section of the Secretary of State’s ‘Nationality Instructions’, i.e. Volume 2, Section 2 of the Nationality Instructions (‘the AR Policy’). The focus of Ground 2 is the treatment of the Claimant in the past as having been eligible for UK passports and the prima facie loss upon his 18th birthday of the right to registration under s.1(3) of the 1981 Act.
In describing Ground 2 above, I refer to the ‘prima facie loss’ of the right to registration because the burden of the argument for the Claimant is that HMPO, if not satisfied that the Claimant is a British citizen under s.1(1), ought to have treated him as having made an undetermined application for registration under s.1(3). If that is right, and if therefore the Claimant ought to have been treated as having made such an application while still a minor, then in effect he may not have lost his right to registration upon turning 18 after all. The complication arises that within the saga (as I described it in paragraph 4 above), the final passport application made to date, and rejected by the October 2015 decision letter, was made in February 2015 when the Claimant was an adult, but the Claimant seeks to characterise that application as in truth a continuation or re-submission of an application dated 12 September 2013, the day before his 18th birthday (or possibly even of a prior application dated 9 October 2012).
I should also say a little more about Ground 1. The words I have emphasised in quoting from the Claimant’s Statement of Facts and Grounds (paragraph 6(i) above) cannot be taken at face value. Doing so would make it a condition of the claim under Ground 1 that the Claimant show that his claim to British nationality was undisputed (i.e. that HMPO had in fact not disputed that claim). However, it is plain from the development of Ground 1 in the Statement of Facts and Grounds that that is not the contention. Rather, by Ground 1 as there developed, the Claimant contends:
Firstly, that his claim to be British under s.1(1) of the 1981 Act was indisputably sound (as opposed to actually not disputed), so that it was irrational or ‘Wednesbury unreasonable’ not to accept it. In that regard, in particular the Claimant contends it was irrational to require that Mr Kanu attend for interview. That complaint gives rise to one of the disputes over the meaning and effect of the decision letter. The Claimant says it purported to require attendance of Mr Kanu for interview as the only means by which he might satisfy HMPO of his claim to be a British citizen. Ms Rowlands for the Secretary of State accepted that it would be unlawful so to require, but submitted that the decision letter did not go that far.
Secondly, that the Secretary of State, through the decision letter, failed to provide any or any proper explanation as to why the documentary evidence submitted by the Claimant was not regarded as establishing his claim to British citizenship under s.1(1).
It emerged from Mr Sharma’s skeleton argument for the Claimant, for the hearing before me, that it would be submitted that the question of his British citizenship under s.1(1) of the 1981 Act, as claimed, which in practice means the question whether he is Mr Kanu’s son, was a matter of statutory ‘precedent fact’ upon which the court could and should conduct its own primary fact-finding, so that the basis for a judicial review under Ground 1 was not (or was not limited to) a review of the decision letter for rationality and Wednesbury reasonableness. In a written Rebuttal and Response lodged for the purpose of the permission application after the Secretary of State had lodged her Summary Grounds of Defence, it was asserted that “The ultimate issue for the court to determine is whether, on the balance of probabilities, the Claimant is the son of Mr Kanu, this having previously been accepted by the Defendant.”; but the paragraph in question went on, in substance, to reiterate the Claimant’s case as being that there was no rational basis upon which HMPO could have concluded that he was not Mr Kanu’s son; and the overall conclusion the court was to be asked to reach was then stated in the following paragraph, namely “that the Defendant’s position is perverse and unsustainable”. Similarly, references Mr Sharma emphasised in the Statement of Facts and Grounds to the Claimant’s position being that on the evidence it is more likely than not he is Mr Kanu’s son cannot get the Claimant away from the clarity with which, I think, the case put forward in stating and developing Ground 1 was one of irrationality and the like only.
The new contention – and I do therefore regard it as a new contention – that the court can and should conduct its own, contested, fact-finding hearing, upon which to issue a declaration as to whether the Claimant is Mr Kanu’s son, was advanced primarily by reference to the decision of Edis J in R (Rahman) v Secretary of State for the Home Department [2015] EWHC 1146 (Admin). Ms Rowlands submitted, if necessary, that I should follow the approach of Burnett J (as he was then) in R (Liaquat Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin) on the basis that Rahman is either distinguishable or wrongly decided. But her logically prior submission was that the new contention was not open to the Claimant, not being within the permission sought or granted and (as a result) not being a matter for determination of which this claim had been in any way prepared.
One striking example of that, on Ms Rowlands’ argument, was that there was no witness evidence in the case at all except and until a witness statement from Mrs Harding was provided only the day before the hearing (signed the evening before that) and only then by way of purported reply to Ms Rowlands’ skeleton argument. It is nothing like the primary, narrative account one would expect as ‘evidence in chief’ for a claim in which the court was to be asked to conduct its own primary fact-finding. If such fact-finding was to be sought, and since the Claimant’s case is that he has no contact with Mr Kanu and cannot produce him to support his case, proper, narrative evidence in chief in a witness statement from Mrs Harding, served with the Claim Form, is surely how this claim would have commenced. (It is of the nature of the issue that the Claimant is incapable of being a first-hand witness to the primary facts himself.) Directions could and should then have been sought, as part of applying for permission or promptly following the grant of permission, as a result of which the substantive hearing before me could have encompassed that fact-finding.
In argument it became clear that the new contention (as I have described it) only arises if Mr Sharma is correct in his submission as to the law applicable to the Claimant’s claim to British citizenship under s.1(1) of the 1981 Act. Why that is so will be apparent from my consideration of that submission, to which I turn now.
The Law Applicable
Starting with s.1(1) of the 1981 Act itself, it has provided at all material times, and so far as material, that:-
“A person born in the United Kingdom … shall be a British citizen if at the time of the birth his father or mother is–
(a) a British citizen; or
(b) settled in the United Kingdom …”.
It is common ground that:
the Claimant was born in the UK;
Mrs Harding is the Claimant’s mother, but was neither a British citizen nor settled in the UK when the Claimant was born;
Mr Harding was neither a British citizen nor settled in the UK when the Claimant was born;
Mr Kanu was a British citizen when the Claimant was born;
The definition of ‘father’ for the purpose of s.1(1) of the 1981 Act has not been constant. So far as material for the present case:-
When the Claimant was born in 1995 and when his mother married Mr Kanu in 1996:
by s.50(9)(b) of the 1981 Act, “subject to section 47, the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him”; and
s.47(1) provided that “A person born out of wedlock and legitimated by the subsequent marriage of his parents shall, as from the date of the marriage, be treated for the purposes of this Act as if he had been born legitimate”.
On 1 July 2006, by virtue of s.9 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’):
s.47 of the 1981 Act ceased to have effect;
s.50(9) of the 1981 Act was replaced by new ss.50(9) and 50(9A), the former defining only ‘mother’, the latter providing that:
“For the purposes of this Act a child’s father is–
(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child, or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37) (father), that person, or
(c) where neither paragraph (a) nor paragraph (b) applies, any person who satisfies prescribed requirements as to proof of paternity.”
Requirements as to proof of paternity were prescribed for the purpose of s.50(9A)(c) by the British Nationality (Proof of Paternity) Regulations 2006. They were amended as from 10 September 2015 by the British Nationality (Proof of Paternity) Regulations 2015, but by reg.15 of the 2015 Regulations the amendments do not have effect in relation to a person named as father in a birth certificate issued before that date. In the present case, Mr Kanu is named as the Claimant’s father in a birth certificate issued in 1996, so if s.50(9A)(c) applies in this case (see below) then the prescribed requirements thereunder are those of the original, unamended, 2006 Regulations and references below to ‘the 2006 Regulations’ should be read accordingly.
Mr Sharma submitted that the law applicable to the question whether the Claimant is a British citizen under s.1(1) of the 1981 Act is s.50(9)(b) of the Act as it stood when he was born, together with s.47 of the Act as it had effect on the date of his mother’s marriage to Mr Kanu. That in turn leads to the submission that, by Statute, he is a British citizen if he is Mr Kanu’s son and therefore his being (if he is) Mr Kanu’s son is a matter of statutory precedent fact and rights deriving from it cannot be taken away or refused recognition by (e.g.) HMPO by a decision on its part, however reasonable, that it is not satisfied that he is Mr Kanu’s son. An element or consequence of Ms Rowlands’ submission as to the Liaquat Ali and Rahman cases is that, on her argument, even if Mr Sharma is right about the law applicable, still the only impugned decision is that of HMPO to refuse a passport, a refusal to exercise a Royal Prerogative power, reviewable therefore only on normal public law grounds as regards its treatment of relevant matters of fact.
Ms Rowlands also submitted in any event that the law applicable is s.50(9A) of the 1981 Act (and therefore, so far as material, s.50(9A)(c) and the 2006 Regulations), that being the law in force at the date of the Claimant’s relevant passport application (be that regarded as February 2015, September 2013 or October 2012) and at the date of the impugned decision in October 2015. Mr Sharma accepted that if that is right, then the only basis for judicial review would be unlawfulness on normal public law grounds, because under s.50(9A)(c) and the 2006 Regulations the effective statutory test for fatherhood would then be whether the Secretary of State was satisfied by evidence considered by her to be relevant that Mr Kanu was the Claimant’s father. (I have expressed that deliberately in the passive – reg.2(b), if read over-literally, might be thought to articulate a requirement that the putative father (here, Mr Kanu) himself take active steps to satisfy the Secretary of State that he is the father, but that cannot sensibly have been the intention, I think.)
The argument on this question of the law applicable to the Claimant’s case was rather limited, little more than the assertion on each side of the correctness of the conclusion advanced. In Mr Sharma’s case, it was I think the implicit basis of his submission that the amendment of the 1981 Act on 1 July 2006 should not be understood as removing a person’s status as British citizen acquired under the Act prior to that date by virtue of his birth in the UK (i.e. either upon birth because of his mother’s or his father’s status then, or upon his parents’ marriage, and then because of his father’s status when he was born, as the Claimant says is his case). In Ms Rowlands’ case, the submission was developed only by the argument that the law in this area undergoes frequent change, so anything other than applying from time to time the then current law would be unworkable.
I prefer Mr Sharma’s submission. It is treated as self-evident in Macdonald’s Immigration Law and Practice (9th Ed, 2015, para.2.48 at nn.8-9). There is nothing in the commencement provisions by which s.9 of the 2002 Act amended the 1981 Act to indicate that the amendments were to have a retrospective effect; and I agree with the implicit basis of Mr Sharma’s argument that treating the amendments as applicable to births in the UK prior to 1 July 2006 would be to give the amendments a retrospective effect.
The Approach to the Review
Since I shall apply the 1981 Act as it stood prior to 1 July 2006, the dispute between the parties over the proper approach to the judicial review of the October 2015 decision letter arises. I outlined that dispute in paragraphs 9 to 11 above. As that outline shows, the dispute falls into two parts: firstly, whether the Claimant should be allowed to rely upon the new contention (as I called it); secondly, if so, whether the new contention is correct, part of which is a possible contest between Liaquat Ali (Burnett J) and Rahman (Edis J).
In relation to the first part of the dispute, I agree with Ms Rowlands that it would not be fair or appropriate to allow reliance upon the new contention. It is, in substance, a new and significantly different ground for judicial review, for which permission was not sought or granted. It is not a basis for judicial review those advising the Secretary of State will have understood to be raised; it is clear to me that the defence of the claim has been focused, quite rightly, solely upon a defence of the decision-making process (and of the rationality / reasonableness of the end result), and not upon a de novo factual contest. Indeed (see paragraph 11 above in particular) even on the Claimant’s side, to my mind those acting have not begun to prepare a case to present to the court for such a contest. Mr Sharma drew to my attention that in Rahman, Edis J did not conduct, or at any rate did not complete, the final fact-finding exercise at the judicial review hearing before him that was equivalent, on Mr Sharma’s submission, to the hearing before me in the present case. However, as I read Edis J’s judgment, in Rahman from the outset there was a claim for a declaration that the claimant was a British citizen, permission for that claim had been granted, and on the particular facts of that case Edis J decided that he should not resolve questions of blame as between the parties over the need for there to be a further hearing, with cross-examination, if after his judgment the claim for a declaration remained contentious. Here, as I have said, there was no such claim, there is no such permission, and that is entirely the Claimant’s doing.
In my judgment, it would not be in the interests of justice to deprive the Secretary of State of the final conclusion to these proceedings she will properly have expected this hearing to produce. It would not be unfair to leave the Claimant, if so advised in the light inter alia of how I determine the judicial review claim he did bring, to issue fresh proceedings for a declaration, the result of which he can use to support a fresh application for a UK passport, assuming he would then wish to make one, if they succeed.
In those circumstances, it is not necessary to resolve whether, had the new contention been raised correctly from the outset, the proper approach to this judicial review would have been for the court to investigate, and make its own finding upon, the question whether the Claimant is Mr Kanu’s son, or only to consider on normal public law grounds the lawfulness of HMPO’s decision-making. But the point has been argued, and that has involved a suggestion of conflict in the prior authorities, so I shall set out my conclusions on the point. In my judgment, there is no conflict between Liaquat Ali and Rahman; rather, the position is as follows:-
The decision of HMPO not to issue a passport is an exercise of the Royal Prerogative (or, more strictly, a decision to refuse to exercise the Royal Prerogative in favour of the passport applicant).
Such a decision is susceptible to challenge on normal public law grounds and Liaquat Ali, especially at [17] and [22]-[23], accurately represents the law. In fact, the approach there stated was adopted and applied in Rahman to found the quashing of the passport refusal decision (Rahman at [31]-[34]), and was confirmed in R (XH, AI) v Secretary of State for the Home Department [2016] EWHC 1898 (Admin) (Div Ct, Hamblen LJ and Cranston J), in which (at [127]-[129]) Liaquat Ali at [23] in particular was approved and adopted. It was also adopted by, or at all events assumed by the approach taken in, R (Begum) v Secretary of State for the Home Department [2014] EWHC 2968 (Admin), which decided that it was unlawful for HMPO only to issue passports when satisfied beyond reasonable doubt as to citizenship (as opposed to on a balance of probabilities).
Stated generally, it is not irrational or Wednesbury unreasonable for HMPO to adopt a policy that a passport will not be issued (or renewed) if it (HMPO) is not satisfied by the evidence supplied by the applicant that he or she is a British citizen. Current policy, set out in a Written Ministerial Statement of 25 April 2013 quoted in XH, AI at [24(4)], is that “Passports are issued when the Home Secretary is satisfied as to: (i) the identity of an applicant; (ii) the British nationality of applicants, in accordance with relevant nationality legislation; (iii) there being no other reasons … for refusing a passport …” (my emphasis). That is lawful policy.
The circumstances of any given case may engage some more particular requirement as to the approach to be taken to the applicant’s evidence – see e.g. Liaquat Ali at [23] as to applicants who have previously been issued with British passports. That does not contradict, it supplements, the general proposition stated in iii) above. It is not unlawful, without more, for a passport to be refused to an applicant who is in fact a British citizen because a rational and reasonable view has been taken by HMPO that the evidence supplied for the application did not so establish.
In R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin), Eder J granted a declaration, having decided the point for himself on the balance of probabilities, that the claimant was a British citizen (formerly known by a different name), but he did so as the determination of a claim properly brought (as in Rahman) for such a declaration. Eder J did not reach any conclusion as to the rationality of the refusal to renew the claimant’s passport that had triggered the proceedings, but (a) Counsel for the Secretary of State conceded that he did not need to do so, thus (b) if the passport decision was quashed (it is not clear from the judgment whether it was), that will have been by agreement as to the form of order to be granted. (Similarly, in R (Olayeni) v Secretary of State for the Home Department [2014] EWHC 2137 (Admin), in a challenge to a passport refusal, Patterson J decided for herself whether the claimant was who she claimed to be, but (a) she did so by agreement between the parties that she should treat the issue as one of ‘precedent fact’ and (b) she decided it against the claimant anyway.) If Sinha (or Olayeni)purported to decide that the court’s declaration of British citizenship, without more, justified the quashing of a prior passport refusal, I would have regarded it as wrong and would not have followed it.
Again, in Rahman itself, Edis J’s decision to quash the passport refusal for irrationality did not conclude the proceedings, because the claimant had squarely raised the analytically separate claim for a declaration as to his British citizenship, not because the lawfulness of the passport refusal was to be judged by reference to the court determining for itself the question of citizenship.
The true proposition, with which all of the cases are consistent, is that where a passport refusal is not unlawful on normal public law grounds, it is not to be quashed on a judicial review, but if the claimant has also made a claim for a declaration as to his British citizenship, that claim can be entertained and, if the court determines it in the claimant’s favour, that determination will plainly assist the claimant in a fresh passport application.
For completeness, I should make clear that to the extent the statement of the law I have just attempted allows for or contemplates a determination by the court for itself, upon a properly raised claim for a declaration, of the question whether a claimant is a British citizen, ultimately for the purpose of enabling that claimant to seek to obtain a British passport, I intend it to state the law for claimants to whom the 1981 Act as originally enacted applies (in particular s.50(9) and s.47 thereof). If Mr Sharma’s concession is correct (see paragraph 18 above), the position will be different for a claimant to whose case the amended 1981 Act applies, and with it the 2006 Regulations, if his or her only claim to citizenship is under s.50(9A)(c) and reg.2(b) of the 2006 Regulations. (Likewise for a claimant to whose case the amended 1981 Act applies, but with it the 2006 Regulations as amended in 2015, and whose only claim is under s.50(9A)(c) and reg.2 of the amended Regulations.)
The Detailed Facts
I shall now set out the factual history in more detail, including in particular the saga, as I described it, of the dealings with HMPO that culminated in the October 2015 decision letter.
The Claimant’s birth on 13 September 1995 was registered by Mrs Harding, giving his name as George Malvin Ademu-John, and a birth certificate was issued to her accordingly on 29 September 1995. No father was named in that registration or certificate.
On 18 September 1996, Mrs Harding and Mr Kanu married. Mr Kanu re-registered the Claimant’s birth, declaring himself as father and giving the Claimant’s name as George Malvin Kanu, and a birth certificate was issued to Mr Kanu accordingly, on 6 December 1996. The Claimant was then 15 months old.
In 1998, Mrs Harding returned to Sierra Leone, with the Claimant but (if I have understood it correctly) without Mr Kanu. On 11 March 1998, Mrs Harding obtained for the Claimant his first passport, issued in Dakar, Senegal. I infer that it was obtained using inter alia the 1996 birth certificate naming Mr Kanu as the Claimant’s father and proof of Mrs Harding’s marriage to Mr Kanu. The Secretary of State accepts that this 1998 passport “was issued on the basis that Mr Kanu was the Claimant’s father” in light of the 1996 birth certificate.
According to the Secretary of State, Mr Harding became a British citizen on 30 June 2000. That Mr Harding was at any rate by late 2000 a British citizen appears to be confirmed by reference in the 2010 passport application form for the Claimant to which I refer in paragraph 36 below to Mr Harding having a British passport issued on 29 November 2000. (On that basis, were the Claimant Mr Harding’s son, then his right to registration as a British citizen under s.1(3) of the 1981 Act would have arisen first in 2000.)
Mrs Harding and Mr Kanu divorced on 28 August 2001. Mrs Harding married Mr Harding, in Sweden, on 8 September 2001. The detail behind those dates is not in evidence, save that at some point in 1998 it is said that Mrs Harding applied for a visitor’s visa to the UK to visit Mr Kanu, but that was refused upon a view being taken that her marriage to Mr Kanu was not then subsisting.
By Deed of Name Change dated 25 January 2002, Mr Harding purportedly on behalf of the Claimant (now 6 years old) purported to change the Claimant’s name to Malvin George Harding, the name by which he has been known ever since. Through explicit statements in that Deed that he was the Claimant’s father and the Claimant his son, and by purporting by that Deed to be entitled to decide upon the Claimant’s name for him, Mr Harding was stating himself to be the Claimant’s father. Contrary to a suggestion by Mr Sharma, in my judgment there is no room to construe the statements in the Deed or the claim of authority in law to act for the Claimant, objectively, as anything other than assertions that Mr Harding was the Claimant’s (biological) father. What Mr Harding thought he was saying by the Deed, and why he thought he was able in law to act for the Claimant, I cannot say. There is no evidence before the court from Mr Harding.
From Sweden, Mrs Harding sought leave to settle in the UK in 2002 and she was granted indefinite leave, as mentioned above, on 1 November 2002. There would not have needed to be any application for permission for the Claimant to enter the UK or reside here – he had his British passport. The Secretary of State’s Detailed Grounds of Defence asserted that when applying to settle in the UK, Mrs Harding stated that the Claimant was Mr Harding’s son. That is not admitted by the Claimant and there is no evidence of it before the court, so I cannot find that that was said.
The Claimant’s first passport will have expired in 2003. He was issued with a second passport by HMPO on 1 March 2005. In a Chronology with Ms Rowlands’ skeleton argument, it is said that to obtain that passport Mrs Harding completed and signed the application form and named Mr Harding as the Claimant’s father. That application form is not before the court. If indeed it named Mr Harding as the Claimant’s father, then on its face it would not have shown the Claimant to be entitled to a British passport. The possibilities appear to me to be that (a) the 2005 passport application in fact named Mr Kanu as the Claimant’s father, thereby on its face justifying the application, or (b) it did indeed name Mr Harding as father, but HMPO nonetheless issued a new passport, either (i) in gross error (meaning it considered no other information and got wrong the assessment of eligibility from the application form details), or (ii) because it had access to the existing information evidencing Mr Kanu as the Claimant’s father and treated the naming of Mr Harding on the form as an error, or (iii) it took Mr Harding to be the Claimant’s father but since he (Mr Harding) was now a British citizen HMPO treated the Claimant de facto as if also a British citizen as he was then entitled to be registered as such under s.1(3) of the 1981 Act. I am not in a position to make a finding as to which of those it was.
On 3 October 2007, Mrs Harding became a British citizen.
The Claimant’s second passport will have expired in 2010. On 22 September 2010, a new passport was issued. This third passport was not a full passport, however, but was only valid for one year. It is common ground that this was issued urgently, pursuant to an application form signed by Mrs Harding dated 21 September 2010 and naming Mr Harding as father, to enable the Claimant to travel to Sweden for his maternal grandfather’s funeral. The Secretary of State asserts that the passport was limited to one year because of concerns as to paternity, but there is no evidence of that, let alone any evidence that that was communicated at the time to the Claimant or to Mrs Harding.
On 9 October 2012, the Claimant (for the first time, now that he was over 16) signed a passport application for himself. For reasons that are not explained by the evidence before the court, the form did not include any information about the Claimant’s father. It also, in error, stated that his mother had been a British citizen when the Claimant was born. (She was a British citizen when this form was completed in 2012, and details were given of her then British passport issued on 28 December 2007; but of course she had not been a British citizen in 1995 when the Claimant was born.)
The Claimant was asked to attend HMPO with his father for interview. He attended on 4 December 2012 with Mr Harding, who confirmed that he was the Claimant’s step-father only, not his (biological) father. By letter to the Claimant dated 10 January 2013, HMPO refused the Claimant’s 2012 passport application. That was an unequivocal, final refusal of that application. The subsequent applications to which I refer below are not arguably continuations or re-submissions of the 2012 application. The current proceedings do not seek a judicial review of the refusal of the 2012 application and the Claimant would be years out of time, with no justification for the delay, to seek such a review now.
The reason given in HMPO’s letter for refusing the 2012 passport application was as follows: “In order to confirm your identity and Claim to British passport, you were required to attend an interview on 4 December 2012 with your biological father. We are unable to confirm your father’s Identities’ [sic.] as your nationality can only be conferred through your biological father; and for that reason we can not grant passport facilities.” In my judgment, the clear connotation of that – and this will become a theme – is that HMPO would not issue the Claimant with a new passport unless and until he attended for interview with Mr Kanu (he being, the Claimant says, the Claimant’s biological father).
By letter dated 28 August 2013 (by now, the Claimant was approaching his 18th birthday), at the Claimant’s request UK Visas and Immigration (‘UKVI’) issued an opinion on his nationality status. It made clear that ultimately only the courts could determine such a matter conclusively, but stated that upon the basis of the Claimant’s 1996 birth certificate, Mr Kanu’s birth certificate and the marriage and divorce certificates relating to Mrs Harding’s marriage to and divorce from Mr Kanu, “the Secretary of State is of the opinion that [the Claimant] is a British citizen under section 1(1) of [the 1981 Act]”.
On 12 September 2013 (the day before his 18th birthday), the Claimant signed a further application form. This form named Mr Kanu as his father.
By Deed of Change of Name (Deed Poll) dated 26 November 2013, the Claimant (now an adult) formally confirmed and adopted Malvin George Harding as his name. That Deed did not directly state anything about his parentage; but it did declare that his name had been changed by Mr Harding’s Deed in 2002, which (as it seems to me) would ratify that earlier Deed if indeed, as the Claimant says, Mr Harding is not his father (so that back in 2002 Mr Harding did not have authority in law to act for the Claimant).
The 2013 passport application was refused in June 2014. By letter dated 24 June 2014, HMPO (again) communicated an unequivocal and final rejection of that application. Again (as in paragraph 38 above), the one further passport application to which I refer below, and which gives rise to the present claim, is not arguably a continuation or re-submission of the 2013 application. The current proceedings do not seek a judicial review of the refusal of the 2013 application and the Claimant would be well out of time, with no justification for the delay, to seek such a review now. That said, the refusal decision even more clearly than for the 2012 application communicated a requirement, such that the Claimant would not be issued with a passport otherwise, that the Claimant attend for interview with his biological father. That means, on the Claimant’s case, Mr Kanu; on any view (i.e. even on the Secretary of State’s case) it plainly means not Mr Harding (since he had attended in December 2012, as the June 2014 letter noted, and confirmed that he was the Claimant’s step-father only).
The Claimant’s solicitors wrote a lengthy letter to HMPO on his behalf dated 20 November 2014. Somewhat oddly, its focus is the January 2013 rejection of the 2012 passport application and it makes no mention of the 2013 passport application or its rejection in June 2014. Be that as it may, it recites the relevant background facts (as the Claimant claims them to be) in quite full detail. In particular, it makes plain that the Claimant says he is Mr Kanu’s son, Mr Harding’s step-son (only).
The Claimant’s solicitors then cut accurately (as it seems to me) to the nub of the problem, namely that: “We understand that matters have now reached an impasse in as much as it appears that you will not progress our client’s application unless you have interviewed his father [by which they plainly meant Mr Kanu], which our client is unable to arrange”. They complained that HMPO’s refusal to be satisfied that Mr Kanu is the Claimant’s father is unfathomable and not properly explained. They complained, in the alternative, that if HMPO were treating the Claimant’s British citizenship under s.1(1) of the 1981 Act as unproved, then under the AR Policy he should have been treated as having an undetermined application for citizenship registration, given that whilst a minor he had plainly qualified for registration (subject to application being made) under s.1(3)(a) of the Act. (They also mentioned s.1(4) of the Act, but the Claimant did not qualify for registration under that provision because he had spent part of his early years abroad in Sierra Leone and Sweden.)
HMPO replied rather curtly, by letter dated 17 December 2014. That did not attempt to grapple with any of the substance of the Claimant’s solicitors’ letter but merely noted that that letter was not written by reference to HMPO’s most recent letter, viz the June 2014 letter refusing the 2013 passport application. Since that letter served only to put beyond doubt that HMPO’s stance was indeed that the Claimant could not win without attending for interview with Mr Kanu, it was unworthy of HMPO, or at the very least unhelpful, that it did not at this stage seek to grapple properly with the Claimant’s solicitors’ letter.
That brings me, finally, to the February 2015 passport application rejected by the October 2015 decision letter the subject of the claim before the court. By letter dated 11 February 2015, the Claimant’s solicitors enclosed a copy of their letter of 20 November 2014 and stood by the detail set out in that letter as to why the Claimant ought to be issued a passport. They also, “given the already considerable delay in this matter and for the sake of pragmatism”, enclosed a fresh passport application form. Whilst this couched in positive terms the decision to make a fresh application rather than formally challenge the previous refusals, that is what it was: a fresh application, calling for a fresh decision. These proceedings concern and concern only that fresh application and the decision made upon it (albeit the background of the prior applications and refusals may be relevant to an understanding of that decision and a consideration of its lawfulness).
Somewhat bizarrely (to my mind) the fresh application form named Mr Harding as the Claimant’s father (and gave details confirming that he (Mr Harding) was Sierra Leonean when the Claimant was born, but now had a British passport, giving details of his then current passport issued on 2 April 2013). However, HMPO could not rationally or reasonably have understood the Claimant to be asserting that Mr Harding was his (biological) father, given the history and his solicitors’ covering letter.
Ms Rowlands’ skeleton argument boldly submitted that the naming of Mr Harding as father in the 2015 application form was a complete answer to the claim for judicial review. Her point was that it could not be unlawful to refuse to issue a passport against a passport application form naming parents whose particulars did not prove British citizenship under s.1(1) of the 1981 Act. But when pressed, I think Ms Rowlands conceded that it was plain the February 2015 application, read as a whole, was made on the basis that Mr Kanu was the Claimant’s father (Ms Rowlands said she had overlooked when preparing her skeleton argument that the February 2015 letter enclosed and adopted the contents of the November 2014 letter). Even if I am wrong to think that was conceded, that basis of the February 2015 application was indeed plain. Ms Rowlands also conceded, I think, in any event I conclude, that it would have made no difference to the outcome if the February 2015 application form had named Mr Kanu as the Claimant’s father. Ms Rowlands nonetheless maintained the submission that the fact of naming Mr Harding this time round was a continuation of confusion as to the identity of the Claimant’s father that he (or in the past those acting for him) has created, rendering understandable a conclusion by HMPO that Mr Kanu had not been shown to be the Claimant’s father.
The Decision Letter
The material terms of the October 2015 decision letter were as follows:
“… a UK passport will only be issued once [HMPO] is fully satisfied that an applicant’s identity and nationality has been fully established. [This was not separately challenged, but to my mind it does not sit entirely comfortably with the balance of probabilities standard that HMPO should be applying.]
[The Claimant’s] applications’ [sic] of October 2012 and December 2013 were both withdrawn as he was unable to attend an interview with his father, Allieu KANU. [The Claimant] was informed of our decision not to issue him with a passport and the reason why in our letters dated 10 January 2013 and 24 June 2014.
[The Claimant] submitted an application for a UK passport on 13 February 2015. As part of the examination process it was still intended [this must mean ‘by HMPO’] that his father be invited to attend an interview. The purpose of this interview is to both help establish [the Claimant’s] identity and claim to a British passport as nationality in his case can only be conferred through his biological father.
With respect to this current application as you have stated in correspondence to us [the Claimant] is unable to comply with our request to attend an interview with his father. Therefore I must advise that [HMPO] is still not in a position to issue a passport to [the Claimant] and … his application … will now be withdrawn.
I appreciate that this is not the news that your client will want to receive but unfortunately as citizenship is determined by law, I regret that this office is unable to exercise discretion in this or any other case where identity and nationality has not been fully established. However, I would like to assure you that [the Claimant] is free to apply for UK passport facilities at any time but will have to be in a position to attend an interview with his father.”
Taken at face value, in my judgment those terms do set HMPO’s face against the grant of any new passport to the Claimant unless and until Mr Kanu attends for interview. That is how it struck me as a matter of first impression. Re-reading it with the benefit of the argument, I have found that view only to be confirmed and reinforced.
I say that notwithstanding in particular Ms Rowlands’ concession that to stipulate that the only way HMPO will treat itself as satisfied in the Claimant’s case is if Mr Kanu attends would be unlawful and obviously so. That impacts upon the exercise of interpreting the decision letter, because it is not to be expected a priori that HMPO would take such an obviously wrong stance. I should not find that that is what HMPO did unless the language used is clear. I should be willing to read the letter with a degree of generosity to a busy and hard-pressed public body, without cynicism and remembering that bad faith or improper motive is not suggested. However, keeping in mind all of those reasons for giving HMPO the benefit of any reasonable doubt, I think the language used bears no more favourable interpretation. In particular:
The letter confirms that the sole reason for refusing the 2012 and 2013 applications was that Mr Kanu did not attend for interview.
It states that since the Claimant will be unable to comply with a request for such an interview, HMPO is “still not in a position” to issue him with a passport.
It suggests that HMPO had no choice in the matter, given the lack of opportunity to interview Mr Kanu.
It closes by placing a condition on HMPO’s willingness to consider any fresh application, namely that the Claimant “will have to be in a position to attend an interview with his father”. (For completeness, I note that in the letter, ‘his father’ plainly meant Mr Kanu, itself an oddity unless HMPO was in fact happy that the Claimant probably is Mr Kanu’s son, but was imposing nonetheless a requirement that Mr Kanu be interviewed.)
I have also borne fully in mind, in reading the decision letter, Ms Rowlands’ submission that the context is important. That is of course correct. Indeed, context can be everything in a particular case. The essence of the submission here was that the dominant focus in the October 2015 letter, upon Mr Kanu’s not being produced for interview, is to be viewed in the context of the saga as a whole and the difficulties (as the Secretary of State contends) with the sufficiency of the Claimant’s evidence if it cannot be supplemented by an interview with Mr Kanu. So viewed, it was said, the letter is not so much an improper stipulation that only an interview with Mr Kanu could ever satisfy HMPO but a statement that as matters stood, on the evidence available from the Claimant taken as a whole, HMPO was not satisfied as to paternity, the Claimant’s admissions that he will be unable to procure Mr Kanu’s attendance for interview being one particular, important problem with the claim.
I do not agree that context assists the Secretary of State as Ms Rowlands contended. To the contrary, I find that the background history serves only to reinforce my reading of the October 2015 letter. What matters, or at any rate what matters most, is HMPO’s previous communications to the Claimant, rather than what may have been any different but uncommunicated thinking on its part. I do not in any event have any evidence of that. The key previous communications from HMPO are the letters refusing the 2012 and 2013 passport applications and I have stated my finding that they had already made it appear that HMPO was adopting the improper stance that only an interview with Mr Kanu would ever satisfy it (paragraphs 39 and 43 above). Furthermore, the immediate context for the refusal of the 2015 passport application was the Claimant’s solicitors’ letter, analysing the evidence available and complaining in terms that HMPO appeared to be, but ought not to be, adopting that stance (paragraph 45 above). Given that context, the drafting of the October 2015 letter is precisely not what one would expect if the intention was to convey that that was not HMPO’s stance, but rather that the thinking was more considered, more balanced.
The interpretation of the October 2015 decision letter that I favour is reinforced further by an objective consideration of the essential facts and the difficulty (if there is one) with the Claimant’s application. Thus:-
Just over a year after the Claimant’s birth, his mother married Mr Kanu and Mr Kanu registered the Claimant as his son. There is no evidence that Mr Kanu has ever disputed fatherhood. The fact that the marriage ended in divorce in 2001, and may have broken down prior to that, perhaps in 1998, could not reasonably be taken to be evidence contradicting Mr Kanu’s registered fatherhood of the Claimant.
That 1996 birth certificate was accepted officially as sufficient proof of fatherhood in issuing the Claimant with his first passport in 1998. That was obtained for him by Mrs Harding; by doing so she confirmed the truth of Mr Kanu’s fatherhood of the Claimant as stated in the birth certificate.
Mr Harding made claims to paternity in the 2002 Deed of Name Change.
The Claimant’s next passport was issued in 2005 either (a) Mr Kanu having been named as his father on the passport application form, or (b) despite Mr Harding having been so named (paragraph 34 above).
In the 2010 passport application form, Mrs Harding named Mr Harding as the Claimant’s father.
When in 2012 the Claimant for the first time signed a passport application for himself (being over 16), he did not identify his father in the form. When he attended with Mr Harding for interview, Mr Harding explained that he was the Claimant’s step-father, not his biological father. Unless that was being assessed as untruthful, it would tend to support the Claimant’s claim to British citizenship, but it seems to have been treated as reason to reject it. If I understood the later correspondence correctly, Mrs Harding also attended on this interview appointment.
In the 2013 passport application form, the Claimant named Mr Kanu as his father.
In the 2015 passport application form, oddly as I have said, the Claimant named Mr Harding as his father; but the form was sent by the Claimant’s solicitors whose detailed covering letter and explanation made it clear that the Claimant said Mr Harding was his step-father, not his biological father. In the specific circumstances of this case, HMPO could not reasonably have taken the 2015 application form as a claim by the Claimant that Mr Harding was his biological father.
Accordingly, if there be cause for concern about the Claimant’s claim to British citizenship by virtue of his birth in the UK (bearing in mind that his claim should be accepted by HMPO if it assesses it to be probably correct, i.e. more probably than not true; he does not need to make HMPO sure), it is created by one document of Mr Harding’s in 2002, one document of Mrs Harding’s in 2010 and (possibly) one earlier document of Mrs Harding’s in 2005. A rational decision-maker concerned about those documents would wish to have, and assess, an explanation for them from Mr and Mrs Harding. He would not think he needed to interview Mr Kanu (though it might not be unreasonable to ask whether such an interview would (also) be possible). HMPO has in fact seen Mr Harding and (if I have understood the correspondence correctly) Mrs Harding too, when the Claimant attended for interview in December 2012. It seems that HMPO accepted Mr Harding’s information that he was the Claimant’s step-father – he is referred to as such in HMPO’s later correspondence. At all events, HMPO has not communicated to the Claimant that Mr Harding was not believed. It is then difficult to understand why HMPO should consider it needs to interview Mr Kanu unless a view has been taken that, irrespective of the strength of the Claimant’s claim without it, an interview with Mr Kanu is the only means by which HMPO will ever be satisfied.
For those reasons, by reference to Ground 1, the October 2015 decision letter is fatally flawed and must be quashed. That is on the primary aspect of Ground 1, not on the Claimant’s alternative complaint that the decision letter gave insufficient reasons. My finding is that the decision letter articulated sufficiently HMPO’s reason for the rejection of the claim; but that reason was unlawful.
It is not therefore necessary to the conclusion that the decision letter must be quashed to deal with Ground 2. However, I have rejected the Claimant’s request that this claim be used for a fact-finding by the court as to whether he is a British citizen under s.1(1) of the 1981 Act. Therefore, in considering the terms of relief upon this judgment I should not assume that the Claimant’s claim under s.1(1) will now be accepted by HMPO upon reconsideration. So it remains a live issue whether the decision letter was also unlawful for failure to consider the Claimant’s request that he be treated as having an undetermined application for registration under s.1(3). If it was, then I should direct that proper consideration now be given to that claim if the claim to s.1(1) citizenship is rejected upon reconsideration; if it was not, then I should dismiss Ground 2 so as to make it clear that only the s.1(1) claim need be reconsidered in consequence of the quashing of the decision letter.
In my judgment, the Claimant’s request that, if his claim under s.1(1) be rejected, he be treated as being the subject of an undetermined registration application under s.1(3), was not considered, but plainly ought to have been. The AR Policy provides, in effect, a discretion to grant passport facilities although a claim to citizenship under s.1(1) has not satisfied HMPO because of doubt as to paternity.
Ms Rowlands submitted that when the decision letter stated that HMPO had no discretion to consider granting the Claimant a passport, having not accepted his s.1(1) claim, it meant that the question of exercising discretion in the Claimant’s favour under the AR Policy had been properly considered. I do not think that is what it conveys at all. Rather, as I find, the decision letter simply, and plainly, concludes that (a) the claim to citizenship under s.1(1) of the 1981 Act was not accepted, because Mr Kanu had not been produced for interview, and (b) it necessarily followed that HMPO could not properly issue a passport. The latter is the opposite of there being some residual discretion. Indeed, the letter says in terms that HMPO “is unable to exercise discretion in this or any other case where identity and nationality has not been fully established”. That is explicable only on the basis either that HMPO wrongly took the view that the AR Policy could not apply, or that the request to be considered under that policy if the primary application failed was overlooked.
I say that it was wrong (if this was HMPO’s conclusion) to think the AR Policy could not apply, and that it provided, in effect, a discretion that could have been exercised to grant the Claimant a passport, because:
The Claimant has been granted British passports during his childhood on the basis that Mr Kanu was his father and/or despite Mr Harding being named as his father in one or more passport application forms. The AR Policy is this (para.1), that “Where someone has been recognised as a British citizen for many years, but information comes to light which shows this to have been in error, it may be appropriate to continue to treat the person as a British citizen whilst his or her position is being regularised”. That was engaged here (if the Claimant is being treated as not Mr Kanu’s son); thus, it “may [have been] appropriate” for the Claimant to continue to be treated as a British citizen “whilst his … position is being regularised”; and that explicitly extends to the granting of a passport (AR Policy para.3 gives the form of words which (or similar) will be used in a letter when a passport is granted on the basis of ‘administrative recognition’). The AR Policy is not limited to cases of urgent need to travel (such cases are stated at para.2 to be “particularly appropriate” for ‘administrative recognition’, they are not said to be the only cases that qualify.)
It is now too late (and was too late in February 2015, when the relevant passport application was made) for the Claimant to bring himself within the strict requirements of s.1(3) of the 1981 Act by a fresh citizenship registration application. He plainly fell within those strict requirements, however, when being granted a full passport in 2005 and a temporary passport in 2010. So also when making the 2012 passport application and when signing the 2013 passport application form. (I could not find that the 2013 passport application was made while the Claimant was still a child, as I have in evidence only that he signed it the day before his 18th birthday but nothing as to when it was received by HMPO.) Ms Rowlands noted that when his 2010 temporary passport expired, the Claimant was without a passport and still a minor, so that an unassailable application for registration could then have been made. That is no doubt correct; but that does not in my view disapply the relevant policy provision. (The AR Policy, at para.5, states that “It may be possible, and preferable, to construe an old passport … application as an undetermined application for citizenship, and to resolve the case in that way (see Volume 1 Chapter 6)”; para.6.3.9 of Vol.1 Ch.6 (as it now is, it may have been para.6.3.8 in 2015) provides that “Cases sometimes come to light where, due to official error, people have been consularly registered while ineligible for such registration or wrongly issued with British passports or certificates of entitlement to the right of abode. As a result they might have lost age- or time-limited entitlements to citizenship. So that they are not disadvantaged by the official error we should be ready in such cases to construe the application as an undetermined application for citizenship and process it accordingly.”; para.6.3.10 notes that (a) this is “intended primarily to benefit people who had, but no longer have, an avenue to registration under the minor or other registration provisions of the British Nationality Act 1948 or the British Nationality Act 1981 and have been led to believe that they are British or have a UK right of abode.”, (b) it should not apply where a realistic avenue to citizenship is still open or where it is clear that the person would not have been eligible for citizenship at the time when the official error was made, and (c) if the discretion does arise it “should normally be exercised in the person’s favour”.)
The policy does not (and rationally could not) limit the circumstances in which consideration should be given to treating an applicant for a passport as having made an undetermined registration application to circumstances in which the passport application that would otherwise be turned down was made during the applicant’s minority. So to construe it would be to disapply the policy to the paradigm case for its application. That is where a young person has had successive full passports as a child until beyond their 18th birthday, and perhaps one or more full adult passports too thereafter, and an issue over their status under s.1(1) of the 1981 Act only then emerges. The passport application that triggers the need at least to consider the AR Policy will necessarily only have been made when no fresh s.1(3) registration application could have been valid. (This view of the policy is confirmed by the reference in para.5, as quoted in ii) above, to construing “an old passport … application” as an undetermined application for citizenship; the need to consider the policy may arise from a range of triggers; if, as in this case, it is triggered by a passport application made by an adult, and if it otherwise applies, it is a policy to construe a prior passport application (made during minority) as an undetermined application for citizenship, for the purpose then of deciding what to do with the current application.)
I agree with Ms Rowlands – and with the AR Policy itself as it states this – that there is a real question mark over the lawfulness of granting an ‘administrative recognition’ for life of a status not in truth enjoyed. But that is not required, at all events in the type of case presented by the Claimant’s circumstances. Such a case (if the claim to citizenship under s.(1) of the 1981 Act is not accepted) calls for consideration of whether as a matter of discretion to grant a passport (whether full or temporary) in response to the particular passport application, on the basis that the applicant should be recognised administratively as having an undetermined application for registration under s.1(3). In other words, by way of ‘administrative recognition’ the applicant is deemed to be someone in respect of whom a s.1(3) application was made during his minority. If HMPO can see that such (deemed) application is sound, on the facts of the applicant’s case, then it plainly has a discretion to issue a passport even though ex hypothesi the s.1(3) citizenship has not in fact been registered yet.
That analysis is not affected, I think, by the fact that a different agency (currently UKVI) would have carriage of any decision to register citizenship under s.1(3) of the 1981 Act. Where HMPO had approached a passport application in the manner just described, it would be incumbent on it to explain to the applicant that it had done so. Absent a change of circumstance, UKVI could not properly refuse, applying the same policy, also to recognise the applicant administratively as having made a timely application for registration. By the time the passport granted in the meantime pursuant to that ‘administrative recognition’ expired, the applicant’s citizenship status could then have been regularised.
I do not say that in a case where HMPO decided there should be ‘administrative recognition’ of a citizenship not yet registered, it would be bound to exercise discretion by issuing a passport. For example, if there were no imminent travel plans, I envisage that it might be a proper exercise of discretion not to issue a passport but to explain the decision fully, including as to ‘administrative recognition’, and directing the applicant to take that aspect up with UKVI after which, assuming citizenship was then registered, a passport could be issued.
Thus, I cannot and do not say to the Claimant that if, upon reconsideration of his 2015 passport application, HMPO concludes that it is not satisfied that he is probably British under s.1(1) of the 1981 Act, the result is bound to be that HMPO grants him a passport nonetheless pursuant to the AR Policy. I can and do say, however, that contrary to the clear tenor of the October 2015 decision letter, HMPO would have a discretion to do so. It would be bound to consider whether to exercise that discretion in the Claimant’s favour, and to communicate and explain to him its decision in that regard.
Conclusion
For the reasons set out above, the October 2015 decision letter will be quashed. HMPO must reconsider the Claimant’s 2015 passport application in the light of this judgment. In doing so, it must, firstly, consider properly whether it is satisfied on the evidence available to it that the Claimant is probably British under s.1(1) of the 1981 Act (which, on the facts, boils down to considering whether he is probably Mr Kanu’s son). If it is so satisfied, no further issue of citizenship arises and there appears to be no suggestion that HMPO would not then issue a passport, although as Mr Sharma accepted it is not for the court, at least on this occasion, to grant mandatory relief ordering HMPO to do so. If HMPO is not so satisfied, it must, secondly, consider whether by way of ‘administrative recognition’ under the AR Policy the Claimant should be treated as being the subject of a pending application, made while he was a minor, for registration as a British citizen under s.1(3) of the 1981 Act and, if so, whether as a matter of discretion he should be issued a passport although that (deemed) application had not yet been determined. I shall ask Counsel to agree, if possible, a form of words for my Order so as to spell out what is required.