Ali, R (On the Application Of) v The Secretary of State for the Home Department [2012] EWHC 3379 (Admin)

[2012] EWHC 3379 (Admin)Case No CO/3566/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/11/2012
Before
The Hon Mr Justice Burnett
Between
The Queen on the application of Liaquat AliClaimantThe Secretary of State for the Home DepartmentDefendant
Mr J Rene and Mr M Mukulu (instructed by Just and Brown Solicitors) for ClaimantMiss Lisa Busch (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 8 November 2012
Judgment
[1]The Secretary of State has refused to issue a new passport to the claimant upon the expiry of a passport issued to him in 1999. The reason why a new passport has been denied to the claimant is that he has failed to satisfy the Secretary of State that he is Liaquat Ali. That conclusion carries with it the implication, which the Secretary of State accepts, that the passport issued in 1999 was issued in error. The Secretary of State is satisfied that there are two people who claim to be Liaquat Ali, and who have asserted British nationality by right of descent from Mohamed Moyna Miah. He was born in what was then British India on 10 May 1932 and was registered as a citizen of the United Kingdom and colonies on 11 April 1963. The claimant submits: i) that it was irrational for the Secretary of State to refuse to accept that he is the son of Mohamed Moyna Miah; ii) that the conclusion reached by the Secretary of State suggests that the claimant is a fraud and so the Secretary of State should be required to prove that suggestion to a high degree of probability. iii) that it was unlawful to require the claimant to produce evidence of his life in the United Kingdom before 1999; iv) that the Secretary of State did not provide all the evidence to the claimant before making and then affirming her decision, with the result that there has been procedural unfairness which vitiates the decision.

The Facts

[2]The only common ground between the claimant and the Secretary of State is that Mohamed Moyna Miah was born on 10 May 1932 in Sylhet and that his wife was Amrunassa Banu born five years later also in Sylhet. Sylhet is now in Bangladesh.[3]On 13 March 1980 a British passport was issued to Liaquat Ali. The only extant official record of that passport is an index card which appears to give the date of birth as 20 November 1967. The papers before the court contain a poor photocopy (not the original) in which the date is not clear. In March 1999 an application for a renewed passport in anticipation of travel on 4 April that year was made. The 1980 passport, which had by then expired, was forwarded with the application. The applicant in 1999 was the claimant in these proceedings. The application was supported by a Dr Bashkar Sitaram Swadi, who gave a London address and asserted that he was the applicant’s general practitioner. The date of birth given for Liaquat Ali was 28 November 1967. The difference, if indeed there was one, with the date of birth in the expired passport was not noticed.[4]A new 10 year passport was issued. It was the normal practice of the Home Office to return the expired passport to its holder along with the new one. The claimant says that when he received the passport the old one was not returned. A national insurance number for Liaquat Ali, date of birth 28 November 1967, was set up on 21 July 2009.[5]On 28 November 2008, in advance of the expiry of the 1999 passport, the claimant applied to renew it. He again gave his date of birth as 28 November 1967. On this occasion the apparent discrepancy over dates of birth was picked up. The paperwork was sent to the Newport Fraud and Investigation Team. Inquiries were made of the DVLA who indicated that driving licences had been issued to two separate people called Liaquat Ali, one with each of the two dates of birth. The photographs of the two were different. The Metropolitan Police provided a photograph of a Liaquat Ali date of birth 20 November 1967. That was not a photograph of the claimant but was the same as the man to whom DVLA had issued a licence with that date of birth. As the summary grounds of defence put it ‘these checks suggested that the applicant was an imposter’. The claimant was invited for an interview. On 31 March 2009 he was interviewed. He said he had arrived in the United Kingdom in 1979 to join his father, whose name and date of birth he gave. He said that his father died in 1994 in Bangladesh and that his mother died in Bangladesh in 1997. The claimant said he had held three British passports. The first was issued in 1979 (he was unsure where this passport was); the second was issued in 1989 (it was retained by the Home Office when he applied for the third); the third was issued in 1999. His date of birth was 28 November 1967. He came from Bangladesh when he was 11 and went to Robert Montefiore Secondary School in the East End for about three years. The claimant said that he was taken out of school when he was 15 or 16 to work in a factory. He had no siblings and no relations in Bangladesh. He could get no documents relating to his parents but had married in 2004. He provided details. He was interviewed again on 15 April and produced documents relating to his wife and children. He was arrested but released.[6]By letter dated 20 August 2009 the application was refused, in these terms:
“I am writing to advise you that the Identity and Passport Service (IPS) has decided not to proceed with your application for passport facilities as, having reviewed the application, IPS is not satisfied with your claimed identity. This letter sets out the reasons for this decision. In 1999 you submitted an application to replace a previous British Passport number 533774C issued in 1980. As a result of this application a passport number 035245669 was issued in your respect. A subsequent check of identity and Passport Service records established that the [the 1980] passport number 533774C was originally issued in the identity of Liaquat ALI born 20 November 1967. If this had been identified at the time you applied in 1999 then passport 035245669 would not have been issued. As a result of this information, when you submitted [the 1999] passport number 035245669 for replacement, you were arrested at the London Passport Office on 15 April 2009. Although enquiries made by IPS with the Metropolitan Police have established that they decided not to charge you, it remains that [the 1980] passport 533774 which you have previously submitted as your own, was in fact issued to somebody else. Accordingly your application for the grant of further British Passport facilities is refused.”
Accordingly your application for the grant of further British Passport facilities is refused.”[7]One 20 January 2010 PC Adam Ridley wrote a letter in response to a telephone call from a Miss Hossain of the claimant’s then solicitors which set out the ‘rationale’ for taking no further action against the claimant. Within that letter, PC Ridley indicates that the claimant had been interviewed and could not understand why the 1980 passport gave his date of birth as 20 November 1967. The claimant attended the police station and provided a copy of the certificate of naturalisation of Mohamed Moyna Miah, together with his own marriage certificate and the birth certificates of his wife and two children. The officer observed:
“All of these items would suggest that the suspect would have lawful UK citizenship and so would not make any gain from the alleged false application. The passport office is unable to provide any evidence of the original blue passport or the application details. The only evidence that the original was issued in the earlier date of birth was from a faded card entry which is in itself is (sic) difficult to read. At this time there is insufficient evidence to proceed on further lines of enquiry. The suspect clearly settled in a family life and would have the right to stay in the UK from his wife and children. Enquiries with the voters and DVLA the residents of similar name have had a negative result in tracing the correct passport holder if indeed the suspect is false. I hope this is sufficient to assist your client.”
I hope this is sufficient to assist your client.”[8]A good deal is made of this letter by Mr Rene on behalf of the claimant at the core of whose submissions is the contention that the Secretary of State was effectively obliged to issue the passport because of the conclusions expressed by PC Ridley. With respect to the officer, he was not right to suggest that the documents produced relating to the claimant’s wife and children could provide any independent evidence of his own British nationality. The short point is that if Mohamed Moyna Miah was his father, then he is entitled to British nationality. The observation that the claimant would have not made any gain from the alleged false application is also, with respect, wrong. If a false application was made by the claimant that happened in 1999, long before he met his current wife. In any event the possession of a British passport confers many benefits. Whilst the observation that, even if he is not a British national, the claimant would have a right to stay in this country by virtue of his marriage to a British national and his being the father of two British children may be correct, that is different from securing the advantages of British nationality. It appears that the officer had only a poor copy of the index card. Given the information that the Secretary of State had been given by the DVLA, including photographs, it is anomalous that PC Ridley obtained a "negative result" when he enquired of them.[9]A letter was written by the claimant’s then solicitors to the Secretary of State, although it has not been copied into any of the papers before the court, which elicited this response dated 23 March 2010:
“All the evidence in your client's case has been carefully reviewed and further exhaustive identity checks have been conducted. The conclusion of the review is that the date of birth held on our records for [the 1980] passport … does not appear to be an administrative error on our part and that as a result we should not have issued [the] passport … to your client in 1999. Our enquiries have located the person we believe to be the genuine holder of [the 1980] passport … who has a verifiable social footprint in the United Kingdom going back to the early 1980s. However, our enquiries have also revealed that there is no evidence of your client's presence in the United Kingdom prior to the issue of [the 1999] passport … Although the Metropolitan Police have decided not to take further action in this case, the Identity and Passport Service are still not satisfied that your client is the true holder of [the 1980] passport. Unless your client is able to provide us with substantial confirmable documentation (school reports, evidence of employment, social security documentation, family/school photographs etc) which can prove his life history before 1999 then unfortunately we are not in a position to issue him with a further United Kingdom Passport.”
[10]Beyond then making an application for the claimant to have leave to remain as the spouse of someone present and settled in the United Kingdom, neither the claimant nor his solicitors sought any further particulars of the "identity checks" referred to in the letter. No material of the sort referred to in the letter was provided to the Secretary of State.[11]On 10 January 2011 a pre-action protocol letter was written to the Secretary of State. In that letter it was asserted that the claimant had arrived in the United Kingdom in 1979 with his details endorsed on his father's passport. The letter enclosed a copy of the document confirming Mohamed Moyna Miah’s British nationality. It was said that in that letter that Mr Miah died in 1996 rather than 1994 as the claimant said in interview. Proceedings were threatened in the event that the passport was not issued. In response, the Secretary of State wrote a letter dated 17 January 2011 repeating that she was “not satisfied that your client is the true holder" of the 1980 passport. The letter repeated that if “substantial and confirmable documentation" were provided which proved the claimant's life history before 1999 the position would be reviewed.[12]Proceedings were issued on 18 April 2011. The issues were identified as being first whether the Secretary of State could require the claimant to produce evidence relating to before 1999; secondly whether the refusal to grant a passport could only follow a "finding of fraud"; and thirdly whether the claimant was entitled to disclosure of the evidence on which the Secretary of State is relying. I note that the pre-action protocol letter did not seek further information in respect of the evidence upon which the Secretary of State was relying. However, full details of the facts and matters upon which the Secretary of State was relying were produced in the summary grounds of defence supported, as was appropriate, by a statement of truth.[13]In addition to the material already referred to which emanated from the DVLA and the Metropolitan Police photograph, the following factors were identified: i) Those who interviewed the claimant considered that his English was very poor for someone who had been in the United Kingdom since he was 11 (he was by then 41). ii) In February 2010 the Department for Work and Pensions confirmed that Liaquat Ali date of birth 28 November 1967 had a national insurance number set up on 21 July 1999, but Liaquat Ali date of birth 20 November 1967 had his national insurance number set up on 6 May 1988. The DVLA also confirmed that Liaquat Ali with that date of birth had a driving licence from 1984. iii) At the same time checks were made relating to Mohamed Moyna Miah. The claimant has suggested in interview that Mr Miah died in 1994 although his solicitors then said 1996. But a passport was issued to him in June 2002 and his national insurance details were also updated in June 2002. iv) Further checks were carried out which revealed that there were two people claiming to have been entitled to the 1980 passport. v) The counter-signatory on the application for the 1999 passport (Dr Swadi MRCGP) was not shown on the Medical Register. However, he counter-signed 10 other fraudulent applications.[14]Shortly before the oral application for permission in this case, the claimant provided a witness statement. It provides his factual response to all the evidence provided to him. He says that he lived with his father in Brick Lane after he arrived in the United Kingdom and that although attending Robert Montefiori School, he spoke little English there. His father took him out of school when he was 15 and forced him to work in a series of factories, taking all but a small amount of his earnings. The claimant says that his father controlled him and all his papers. He never saw the 1980 passport but says that it was renewed in 1990, when his father gave it to him along a with copy of his own naturalisation certificate. The claimant then worked in a restaurant until 1990, with his father once more taking most of his earnings. From 1990 he worked in a restaurant in Bishops Stortford, but lived in Manor Park from 1991 to 1998. His father died in Bangladesh in 1994. He was told by a cousin. He exhibited a copy of his father’s death certificate. It shows the ‘date of registration’ of the death as 17 October 1997 but the date of issue of the certificate as 19 March 2007. It records the date of death as 27 January 2004. There is reference to the cause of death provided by the ‘informer’ but that individual is not identified. The claimant moved to Brighton in 1999. His new employer asked for his national insurance details. That was when he applied for a national insurance number. The claimant also notes that the DVLA has refused to return his driving licence to him.[15]The claimant also produced a statement from one person who says that he has known him since he was 15 or 16 working in a leather factory in the East End, another from the lady with whom he lodged in Manor Park from 1991 and a third from a man who says he has known the claimant since 1990 when he was working in Bishops Stortford.[16]Although it is common ground that the information provided by the claimant in these recent statements was not before the Secretary of State when she made her original decision 20 August 2009, or when she affirmed it on 17 January 2011, it is significant because no attempt has been made to produce any material to evidence the claimant’s presence in the United Kingdom with Mr Miah from 1979 nor to deal with much of the evidence relied upon by the Secretary of State. There is no explanation of how Dr Swadi came to counter-sign the passport application in 1999, or to produce evidence of engagement with the health service. There is nothing about his time at school. Whilst an explanation for the late application for a national insurance number is given, there is nothing of the circumstances in which the claimant came to apply for a driving licence.

The Law

[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 [“the 1971 Act”] 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 Mohamed Moyla Miah. The question for the Secretary of State was whether, on the information available to her at the time or her decisions in 2009 and 2011, she was satisfied that the claimant was the son of Mohamed Moyla Miah 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.[18]Mr Rene relies upon the decision of Sedley J in R v. Secretary of State for the Home Department ex parte Obi [1997] 1 WLR 1498 in support of his submission that because a passport was issued to the claimant in 1999 it now falls to the Secretary of State to prove that he is a fraud. Otherwise she must issue the passport, whatever her doubts.[19]The applicant in that case entered the United Kingdom using a temporary passport which had been issued to him in the name of Obi. It was a six month passport. In due course he sought to renew it. But at that time the Secretary of State was not satisfied that he was Obi. He was arrested and served with notice as an illegal entrant on the basis that he was not in fact Obi. He challenged the decision that he was an illegal entrant. That was a question of precedent fact for the court (R v. Secretary of State for the Home Department ex parte Khawaja [1984] A.C. 74). That had the consequence that although the Secretary of State was obliged to reach a conclusion on the question whether the applicant was an illegal entrant, the task of the court was to reach its own decision on the evidence, rather than ask whether the view that the Secretary of State had reached was available on the evidence. The applicant did not challenge the refusal to grant him a new passport. The Secretary of State contended that the burden of proof rested upon the applicant by virtue of section 3(8) of the 1971 Act. Sedley J identified the question before him as one of ‘pure law’ “Is it for the Secretary of State to satisfy the court that the applicant is an illegal entrant or for the applicant to satisfy the court that he is not?” The judge went on to say that neither party was in a position to discharge any burden that rested upon them. Therefore the outcome of the application would flow from the conclusion of where the burden of proof lay (1499 G – H; 1500 D –E).[20]Section 3(9) of the 1971 Act provides:
“A person seeking to enter the United Kingdom and claiming to have the right of abode there shall prove that he has that right by means of either - (a) a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom; or (b) a certificate of entitlement.”
[21]It was the applicant’s contention that he had satisfied section 3(9) by producing the passport which had been issued to him in the name of Obi. The argument advanced by the Secretary of State was that unless the applicant could prove that he was Obi the passport was not ‘describing him’ as a British citizen. In short, the argument was that once identity was queried it was for the applicant to prove that he was Obi. The judge concluded that no such further burden rested upon the applicant (1501 D-E). By producing the passport he had done what section 3(9) required of him. It was for the Secretary of State to satisfy the court that he was, nevertheless, an illegal entrant (1502H – 1503A). The passport furnished unqualified, though not irrebuttable evidence for the purposes of entry into the United Kingdom under section 3(8) and (9) of the 1971 Act (1502 C-D).[22]In my judgment Obi does not support the claimant’s arguments. It was a precedent fact case arising out of a challenge to a decision that the applicant was an illegal entrant. It turned on the question of where the burden of proof lay. In particular, it turned on whether the normal approach in illegal entrant cases, namely that it was for the executive to prove that the applicant was an illegal entrant when challenged in judicial review proceedings, was reversed in the circumstances described. A challenge to a decision of the Secretary of State refusing to issue a passport is not a precedent fact case. It does not engage sections 3(8) and 3(9) of the 1971 Act because it does not raise any question under that act.[23]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 pubic 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.

The Rationality of the Decision

[24]The reason given by the Secretary of State in her letter of 20 August 1999 for refusing to replace the 1999 passport was that the original 1980 passport ‘was in fact issued to someone else’. The 1999 passport would not have been issued if the change in dates of birth had been picked up. In the subsequent letter of 23 March 2010 the Secretary of State explained that the true holder of the 1980 passport had been located and had a ‘verifiable social footprint’ in the United Kingdom stretching back to the early 1980s. She provided the claimant with the opportunity to provide further material, but none was forthcoming. It their letter of 10 January 2011 the claimant’s then solicitors said that Mr Miah had died in 1996. The letter of 17 January 2011 in reply maintained the Secretary of State’s position, but again offered to consider any further evidence. The underlying detail of the information which founded the Secretary of State’s conclusion, which I have summarised, has been provided in these proceedings. Its most striking features are that there is strong evidence that a Liaquat Ali with the date of birth 20 November 1967 obtained a passport in 1980, a driving licence in 1984 and a national insurance number in 1988. Photographs show he is not the claimant. His passport was issued on the basis that he was the son of Mr Miah. Mr Miah, far from having died in 1994 or 1996, was issued with a new passport in 2002. By contrast, the claimant’s application for a passport in 1999 with a date of birth of 28 November 1967 coincided with the first request for a national insurance number at the age of 31. The passport application was supported by a non-existent ‘doctor’ who supported 10 other applications which the Secretary of State had concluded were fraudulent. The claimant failed to produce anything to the Secretary of State, despite being given the opportunity to do so, which provided any support for his contention that he was Liaquat Ali, the son of Mr Miah, living in the United Kingdom from 1979.[25]Mr Rene submits that the account now given in the witness statement from the claimant to which I have referred shows that he cannot provide such material. Mr Rene asserted, although there is no evidence before the court, that the school the claimant attended has closed. So he submits the Secretary of State cannot lawfully take account of that lack of evidence, nor in effect require him to produce it. There is an obvious circularity in the submission. Any decision maker will take account of an absence of material which ordinarily he would expect to see, but which has not been produced. For example, anyone claiming to be qualified in a trade or profession, who on being asked to produce supporting evidence fails to do so, cannot complain if his assertion is not accepted. Here, the claimant made an application for a passport in 1999 supported by someone who represented himself as his general practitioner. On his own account the claimant had been in the United Kingdom for 20 years at that stage. The absence of evidence of medical involvement in the NHS is of relevance and something that the Secretary of State was entitled to take into account. Whether or not the school has closed, records of a person’s attendance – even if he was there for only two or three years – would be likely to exist and be accessible. It is not suggested by the claimant that he has tried, but failed, to get information from the school or local authority. It should not be forgotten that the claimant was asserting to the Secretary of State than he had been lawfully in the United Kingdom since 1979 (as a British passport holder since 1980) in the circumstances summarised by him in the interview in March 2009. The Secretary of State was in possession of evidence which suggested that the claimant was not Liaquat Ali. She was, in my view, entitled to take account of the absence of evidence from the claimant supporting his assertions, all the more so after encouraging him to do so.[26]I do not accept Mr Rene’s submission that the conclusion reached by PC Ridley, as explained to the claimant’s then solicitors, should have led the Secretary of State to a different conclusion. There are difficulties with the reasoning which supported his conclusion that no further action should be taken (referred to in paragraph [8] above). The Secretary of State was well aware of the outcome of the police investigation. It is clear that she had more material available to her than did PC Ridley. The police decision not to take further a criminal investigation did not undermine the conclusions reached by the Secretary of State.[27]Many of Mr Rene’s submissions were developed in a way which would have been more appropriate if this were a precedent fact case. Thus, he submits that because the court has not seen the original of the index card, which has photocopied poorly, there must be some doubt that the original passport did indeed show a date of birth of 20 November 1967. Similarly, he submits that because the court has not seen the two driving licences referred to, or the underlying material relating to the ‘other’ Liaquat Ali or Mr Miah, it is not possible to be sure that the conclusion of the Secretary of State is correct. However, there is no reason to doubt that the information provided by the Secretary of State is accurate. He submits that the claimant’s explanation, namely that before 1999 he was living in circumstances of which there would be no official trace, is ‘plausible’. However, the legal scheme in this case calls for the Secretary of State to make the factual judgement rather than the court. That said, were this a precedent fact case, I would reach the same conclusion as the Secretary of State on the basis of the material available.[28]I am satisfied that the Secretary of State was entitled to come to the conclusion that the claimant was not the person to whom the 1980 passport had been issued. She recognised that the claimant had been issued with a passport in 1999. She concluded that it had been issued in error. She has provided cogent evidence based reasons for coming to that conclusion. It is impossible, in my judgment, to stigmatise her decision as irrational. Indeed, on the basis of the information she had it is very difficult to see that she could have come to a different conclusion.

Procedural Fairness

[29]In the detailed grounds the claimant’s case was that “it was an incontrovertible principle of public law, that an individual must be given an opportunity to see and comment on the information being used to make findings which are adverse to his interest.” CCSU v. Minister for the Civil Service [1985] 1 A.C. 374 and R (Refugee Legal Centre) v. Secretary of State for the Home Department [2005] 1 WLR 2219 were cited in general support. Mr Rene submits that the piecemeal way in which the evidence emerged amounts to procedural unfairness which calls for the quashing of the decision with a direction for it to be taken again. Furthermore, it is submitted that the Secretary of State was under a legal obligation to disclose all of the underlying evidence to the claimant. That submission is advanced despite the claimant never having asked for disclosure before the proceedings were commenced and then not having pressed for any further information after the details were set out in the Summary Grounds of Defence.[30]Mr Rene did not develop any oral submissions in respect of this ground of challenge but confirmed in answer to a question from the court that it remains part of the claimant’s case.[31]Miss Busch accepts that the Secretary of State cannot act unfairly in making a decision to refuse to issue a passport. She submits that the procedure in this case was fair. The essence of the Secretary of State’s conclusion was explained from the outset; the claimant was given every opportunity to deal with it; full information was given when the claimant asked for it yet he has, in fact, not joined issue with much of it.[32]It is axiomatic that the Secretary of State must act fairly in making a decision whether to renew a passport. It is also fundamental to any examination of whether a decision maker has acted fairly that procedural fairness is a flexible principle which is sensitive to the context and circumstances of the case. The speeches in CCSU make that plain; see Lord Diplock at 411H and Lord Roskill at 415 A-B and the cases collected together in Fordham, Judicial Review Handbook at 60.2.5.[33]The application was originally refused on the basis that the original passport was issued to someone else. It followed two interviews at which it does not appear to have been put to the claimant that the original 1980 passport was issued to someone else with a different date of birth. Neither was it put to the claimant that two material driving licences had been issued by DVLA, one to him with his stated date of birth of 28 November 1967 but another to Liaquat Ali with the 20 November 1967 date of birth, nor that an independent photograph of the second man had been provided by the Metropolitan Police. The context of the interview in March 2009 was that the interviewer was seeking to gather information from the claimant, in particular evidence of his past in the United Kingdom. He also sought the original passport which, in the ordinary course, would have been returned to him with the 1999 passport. The second interview, arranged to enable the claimant to provide further information, resulted in his arrest inferentially for fraud. There is no detail in the papers. If he was then interviewed under caution, there is no record of it before the court. The original decision followed on 20 August 2009 (see paragraph [6] above). This letter appears to have been the first time that the claimant was told that the reason why he was being refused a passport was because the 1980 passport had been issued to someone else.[34]Had matters rested there, I consider that there would have been substance in the claimant’s procedural unfairness argument. Before a final decision is made on the basis that an individual has failed to satisfy the Secretary of State that he is the person entitled to renew a British passport, procedural fairness would ordinarily require that he be confronted with the issue and given an opportunity to demonstrate otherwise. The evaluation of the evidence by the Secretary of State in this case amounted to a conclusion that the claimant’s application in 1999 was fraudulent.[35]However, here the decision was not final. The letter of 23 March 2010 (see paragraph [9] above) made clear that the other Liaquat Ali had been located and had a verifiable footprint stretching back to the early 1980s. An explicit offer was made to the claimant to produce similar evidence. It elicited no response. All of the information subsequently set out in detail in the Summary Grounds of Defence had by then been collected by the Secretary of State, albeit that it was not referred to. The pre-action protocol letter (see paragraph [11] above) did not engage with the issue. It did not seek further information. The decision letter of 17 January 2011 again made clear the Secretary of State’s willingness to change her mind if material were provided. No request for further detail of the basis of the Secretary of State’s decision was made until the question was raised in the claim form. It was then provided. If the claimant wanted further particulars of that information, he did not ask for it either informally or through the court.[36]In my judgment, the way in which the decision making process evolved provided the claimant with ample opportunity to demonstrate that he was Liaquat Ali, son of Mohamed Moyna Miah, who had been in the United Kingdom since 1979 and to whom the 1980 passport was issued. The letter of 17 January 2011 was couched in provisional terms. He was provided with the substance of the reasons for the Secretary of State’s conclusions.[37]This is not a case in which a final decision was made, and then the person affected was able to say that he had an answer to a concern which had not been revealed to him. Neither is this a case in which a claimant asked for material but was denied it. The claimant appears throughout to have been lacking in curiosity about why the Secretary of State reached the decision she did. He has even now not engaged with the most significant aspects of the information provided.[38]It would have been better had it been put to the claimant at the interview that, on the basis of the inconsistent dates of birth and the additional material then available, the Secretary of State thought he had obtained the 1999 passport by fraud. It is not clear why that was not done and good practice would require it. However, the process looked at as a whole was not unfair. The decision then made was not final. The claimant was given two explicit opportunities to produce material after he was told of the Secretary of State’s conclusion, but failed to do so. For the first time in these proceedings the claimant sought full details. They were provided in the Summary Grounds of Defence. Although a refusal to disclose material in the face of a request might lead to the conclusion that the process was unfair, this case involves no such refusal. On the contrary, requests for information have been acceded to.[39]No authority was cited in support of the proposition that all the underlying evidence gathered by the Secretary of State should have been disclosed to the claimant in the course of the decision making process. There is no such hard edged principle of law, whether as an aspect of the duty to act fairly or otherwise. However, in the circumstances of this case, where no request was ever made for the underlying evidence, it is not a point that could assist the claimant. In any event, questions of disclosure might have been complicated by the fact that such disclosure would involve the personal data of the other Liaquat Ali and Mr Miah. Had the claimant wished to pursue the evidence, a request could have been made after the Summary Grounds of Defence were served followed up if necessary by an application to the Court. The suggested failure to disclose the underlying evidence in this case provides no basis for impugning the decision of the Secretary of State.

Conclusion

[40]None of the grounds of challenge advanced by the claimant succeeds. In those circumstances the claim is dismissed. Any ancillary matters not subject to agreement between the parties will be resolved on written submissions.

Cited in 12 later judgments

and 3 more of the most senior