Sinha, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 711 (Admin)

Case No CO/3708/2011[2013] EWHC 711 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 5 March 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE EDER
Between
THE QUEEN ON THE APPLICATION OF JAYRAM SINHAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Zane Malik (instructed by MLC Solicitors) appeared for ClaimantMs Beatrice Collier (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE EDER: On 28 May 2012, the present claimant, Mr Jayram Sinha, was notified of a decision by the Secretary of State for the Home Department to reject Mr Sinha's application for a new passport. The reasons for that decision are set out in the body of the letter as follows:
"You first attended an interview at the passport office on 16/09/2008. During this interview, you claimed to have been born Monir Ali in Bangladesh on 01/01/1939, that you changed your name from Monir Ali to Jayram SINHA in 2000 and the name SINHA was acquired through marriage as your wife is Basanthi SINHA. You also claimed to have received your first British passport in 1988 having both entered the UK and naturalised in 1978. Following this interview, you were asked to produce your naturalisation certificate. You submitted naturalisation certificate number 6057431 alleged to have been issued by the Home Office on 30/04/1978 to Monir Ali born Bangladesh in 1939. Checks with the Home Office confirmed the certificate is counterfeit and that it should not be relied upon as evidence of nationality or identity. You stated during the interview that you first entered the UK in 1978. However, further checks with the Home Office confirmed that the Monir Ali identity existed prior to 1978. Our records confirm that a British passport was first issued in this identity in 1962 and that Monir Ali born 1930 was registered as a British Citizen in 1968. Our records also show that there is only one record of Monir Ali born Bangladesh in 1930 and as the information you provided is not consistent with our records we do not accept that you are the Monir Ali who appears in our records. On a number of occasions you have been asked to submit documents to confirm that you are in fact Monir Ali and that you have been established in this identity since you entered the UK in 1978. To date you have supplied the following documents: Three British passports, two issued in the name Monir Ali 025307S issued 28/07/1988, 032556514 issued 08/07/1988 and 070080861 issued 01/01/2000 in the name Jayram Sinah. Your Wife's Bangladeshi passport, her Naturalisation certificate, Home Office status letter, payslips and P60 dated 2000-2011, NI card, Medical card dated 2000, Bank statements dated 2008-2011, credit card statements dated 2011, BT phone bill dated 2008, pension statement dated 2011, and polling cards, air tickets and flight itinerary, change of name deed poll, marriage certificate and Notarial Certificates. In terms of the documents you submitted when you attended the office on 26/01/2012 which comprised of the same documents you submitted as above, has not changed our position as they were all recently issued documents. They are not extensive or historical enough to prove that you were born as Monir Ali and that you have been resident in the UK since 1978. Furthermore the Registration Certificate you supplied, a key evidence of your claim to British citizens has been shown in fact to be a forgery."
[2]In the light of that decision Mr Sinha makes this application for judicial review. By way of background, the remedies sought in the claim form were as follows:
"(a) A quashing order to quash the decision under challenge; (b) A declaration that the Claimant is a British citizen and is entitled for a United Kingdom passport; (c) A mandatory order requiring the IPS to renew the Claimant's passport forthwith; (d) Such order or other relief as appropriate; (e) Costs."
That application, in the usual way, required permission, which was refused on paper by Foskett J on 7 September 2011. That was, I think, in respect of an earlier decision but subsequently, on 30 May 2012, the Deputy High Court Judge granted the claimant permission to apply for judicial review on modified grounds.[3]Although this is framed as, in effect, the hearing of the judicial review application, it is important to understand that, as conceded by Miss Collier on behalf of the Secretary of State, the question goes beyond whether the decision of the Secretary of State was rational or arrived at on reasonable grounds. In particular, Miss Collier identified the issues that need to be determined at this hearing. They are as follows, and I read from her skeleton argument:
"(i) whether the [Secretary of State] was entitled to refuse the Claimant's passport applications; (ii) whether or not an issue estoppel arose from the decision of the Adjudicator of the Immigration Appellate Authority of the 9.2.05 that the Claimant was legally present and settled in the United Kingdom such that the Defendant was estopped from asserting that he was not a British citizen; and (iii) whether the Claimant is a British citizen, formally known as Monir Ali."
Importantly, that third issue ie whether the claimant is a British citizen formally known as Monir Ali is what Mr Malik, on behalf of the claimant, says I have to determine as a matter of fact. Miss Collier, on behalf of the Secretary of State, accepts that that is indeed the case, and, perhaps unusually on this type of hearing, I have heard oral evidence from Mr Sinha. I will come back to that important issue in due course.[4]By way of background, I should summarise that the case as advanced by Mr Malik is that the claimant, that is Mr Sinha, is a British citizen and is therefore entitled to a renewed passport. Importantly -- and I will come to the evidence in a moment -- it appears, and the Secretary of State does not suggest otherwise, that Mr Sinha has been in possession of at least four passports, the earliest of which, which was produced in court, was issued in 1978. Notwithstanding that, the Secretary of State asserts that the claimant is not a British citizen and is therefore not eligible for a renewed passport.[5]Before me, two main issues have arisen. The first is, as raised by Mr Malik, that the question as to whether Mr Sinha is Monir Ali and a British citizen has already been considered by the IAA on a statutory appeal. In particular, he submits that an entry clearance officer originally refused the application of the claimant's wife to join him in the United Kingdom as his spouse on the grounds that the claimant was not Monir Ali and a British citizen. An appeal against that refusal was heard by the Adjudicator on 20 May 2004. The Adjudicator's determination was promulgated on 9 February 2005. Mr Malik submits that the Adjudicator scrutinised all the evidence closely, including the evidence on which the Secretary of State is, he says, seeking to rely in the present proceedings. Mr Malik submits that the Adjudicator made a clear finding that the claimant is indeed Monir Ali, a British citizen, who had changed his name to Jayram Sinha. No appeal was made against the Adjudicator's decision and findings. On that basis, Mr Malik submits that the Adjudicator's decision and findings constitute res judicata and therefore it is now not open to the Secretary of State to assert that the claimant is not Monir Ali or that he is not a British citizen. In support of that submission, Mr Malik has drawn my attention to a recent decision of the Supreme Court in R(Coke-Wallis) v Institute of Chartered Accountants [2011] UKSC 1, where Lord Clarke, with whom Lord Phillips and Lord Rodger agreed, at paragraph 34, identified six constituent elements of res judicata, namely:
"(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was - (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem."
[6]As I have already stated, the Adjudicator's decision was promulgated on 9 February 2005. The determination and reasoning covers some 6 pages or more. It is important to note that it is a decision between Mrs Sinha and, as I understand it, her three children. It is not a decision to which this claimant, Jayram Sinha, was a party, although he was the "sponsor". The decision recites the documentary evidence that was received, including a copy of Mr Sinha's United Kingdom passport. The determination recites certain of the facts and submissions made by the parties and the matters relied on. In particular, in paragraphs 13 and 14 of the determination the following is stated:
"13. Conversely, I note that the appellants and sponsor are consistent in their evidence and, moreover, that the respondent has accepted that the sponsor is entitled to be the holder of a British passport, something which itself speaks volumes in this appeal. Also, if it was truly the case that the respondent considered that the sponsor's status was not what it was claimed to be then the respondent could have taken steps to address that issue by legal process. I have no information before me to show that any such action has been initiated by the respondent. 14. Therefore, and because I find that the evidence introduced by the respondent does not achieve the high standard of proof, because I find that the sponsor has a UK passport in his name in any event, and because of the consistency of evidence from the appellants' side with reference to his status, I find that the sponsor is upon the evidence before myself legally present and settled in the UK."
[7]On that basis, Mr Malik submits that the relevant conditions for res judicata have all been satisfied and that therefore, in summary, on that basis his client is entitled to say that his status is res judicata binding on the Secretary of State such that he is now entitled to be treated as a British citizen and entitled to the renewal of his passport. It follows, says Mr Malik, that there is an absolute bar on the Secretary of State to raise any issue now as to the claimant's identity and nationality.[8]At the outset, i should mention that my tentative view was no question of res judicata can possibly arise because the proceedings that I have just referred to before the Adjudicator were not proceedings between the same parties. As I have said, Mr Sinha, the claimant here, was not a party to those proceedings. He was a sponsor and there was evidence adduced on his behalf before the Adjudicator but, in my view, that does not make him a party to those proceedings to the extent that any question of res judicata could arise. However, this point was never raised by the Secretary of State. It was not identified in the grounds of defence served on her behalf, and Miss Collier accepted before me that it was not a point that she could run. In fairness, Mr Malik said that if the point was to be run he would need time to think about it at the very least, and in the event this point has disappeared. The result is that whatever my views might be on this point, they form no part of my reasoning in this case.[9]Instead, Miss Collier raised one point, and that is that the fifth element referred to in the speech by Lord Clarke here was not satisfied. In particular, Miss Collier submitted that no issue estoppel arises because the Adjudicator was not making a decision as to the claimant's status as a British citizen and therefore, she submitted, an essential element is missing and no res judicata is established. Rather, the Adjudicator accepted the evidence provided by the claimant to support his contention that at the time of the appeal he was "legally present and settled in the United Kingdom". That evidence included the documents referred to in the determination. In other words, so Miss Collier submitted, for the purposes of the claimant's wife's and children's appeals against a refusal of entry clearance, the Adjudicator was not prepared to go behind the claimant's valid UK passport when deciding whether the claimant as their sponsor was legally present and settled in the United Kingdom. Miss Collier submitted that that was entirely consistent with authority but does not mean that the Adjudicator was determining whether the claimant was entitled to the status of a British citizen, so as to give rise to any res judicata.[10]In my view, those submissions are correct, that, in summary, the particular issue before the Adjudicator is different from the issue that arises in the present context. It may be that the questions are closely aligned. It may also be the case that the decision actually made by the Adjudicator in those proceedings was made on a basis which is directly relevant to the present issue before the court. Be all that as it may, in my view, the fifth condition with regard to res judicata is not satisfied in the particular circumstances of the case.[11]I should mention that Miss Collier submitted that even if, contrary to her submission, a case based on res judicata might be said to arise, nevertheless this was a case which she submitted in the alternatives was subject to an exception. In that context, she drew my attention to, in particular, Arnold v National Westminster Bank PLC [1991] 2 AC 93, where the House of Lords considered the availability and extent of exceptions to issue estoppels and held that the doctrine of issue estoppel did admit of certain exceptions. Here, Miss Collier submitted that there was evidence that the claimant had submitted a certificate of registration in support of his application for renewal of a passport which was counterfeit. There was evidence before the court from the National Document Fraud Unit confirming that that was indeed the case and that the document should not be relied upon as evidence of nationality or identity. Apparently, after that document was submitted on behalf of Mr Sinha, he, Mr Sinha, was arrested by the authorities, although in the event, as I have been told, no further steps were taken in relation to any possible prosecution arising out of the submission of that document.[12]I should make plain that Mr Malik submitted that there was no, or no sufficient, evidence that Mr Sinha himself had submitted that document, a point which I will come to shortly. Be all that as it may, my tentative view is that if he had submitted that document, and on the assumption that, contrary to my earlier conclusion, the decision of the Adjudicator gave rise to res judicata, the discovery of this new document would, at least arguably, bring into play an exception. That may or may not be the case, and in the event it is unnecessary to determine that because I have already held in favour of the Secretary of State that this is not a case which gives rise to any res judicata in any event.[13]I can then turn to what really is the main issue i.e. whether or not the named claimant, Mr Sinha, is a British citizen and whether he is entitled to the renewal of a passport. As to that, there was some debate before me as to the proper approach of this court. Mr Malik referred me to Macdonald's Immigration Law and Practice, paragraph 2.72. In the event, it seems to me that there was no substantial dispute between the parties as to the approach, or indeed as to what is said in that passage from MacDonald's Immigration Law and Practice. In particular, Mr Malik submitted, and, as I understood it, Miss Collier agreed, that the legal burden of proving that this claimant is indeed Monir Ali and that he is a British citizen lies throughout on the claimant. Mr Malik goes on to submit that there is evidence before the court which on a balance of probabilities satisfies that legal burden so that on a balance of probability I should be satisfied that the claimant is indeed a British citizen and entitled to a British passport.[14]The question then is whether or not there is any evidence to the contrary and indeed whether the Secretary of State can displace that conclusion by any other evidence. Miss Collier referred me to a recent decision of Burnett J in R(Liaquat Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin), which she submitted, at least originally, assisted with regard to the proper approach of the court. The difficulty is that the overall shape of that case was rather different from the present case. In particular, as Mr Malik submitted, the focus of that case was on the irrationality of the Secretary of State to refuse to accept the individual who wanted a new passport in that case. Here, Miss Collier has accepted that it is for the court to decide simply on the balance of probability whether or not the claimant is a British citizen and entitled to a new passport. Therefore, it seems to me that questions of rationality or irrationality do not arise, and Miss Collier confirmed that that indeed was the case. I have to consider, as she accepted, the evidence before me and reach a conclusion on the balance of probability on those main issues, that is whether the claimant is a British citizen and whether he is therefore entitled to a new passport on that basis. Mr Malik refines that slightly to say that in truth the issue is whether the claimant is Mr Monir Ali. That may be a convenient way of describing the issue that comes before the court but at the end of the day I have to decide, as Miss Collier submitted, whether on a balance of probability this claimant is a British citizen entitled to a new passport.[15]In support of that case and by way of discharging the burden upon him, Mr Malik makes three main submissions. First he says that the claimant has produced a British passport. Indeed he submits that the claimant has produced four British passports, the first of which was issued, as I have said, in 1978 for a period of 10 years, the second issued in 1988, again for 10 years, the third issued in 1998 for a period of 10 years but then Mr Sinha changed his name. His original name was Monir Ali. He changed his name by way of deed poll -- I will come to that in a moment -- he says in 2000 then a new fourth passport was issued, with his new name Mr Sinha, in the year 2000 for a period of 10 years. I should have said that each of those first three passports showed a photograph of the claimant, stated his name to be Monir Ali and gave his date of birth as 1 January 1939. The deed poll shows that he changed his name on 9 August 2000 from Monir Ali to Jayram Sinha. On that basis, Mr Malik submits that that evidence satisfies the legal burden of proof and that then it is for the defendant to prove that he is in fact not a British citizen. Secondly, Mr Malik submits that even if that is not right, that the decision of the Adjudicator should be regarded as the starting point. Thirdly, he submits that even if that is not right of itself and the burden remains on the claimant to go further, Mr Malik submits that that the totality of the evidence satisfies that burden.[16]Dealing with the first submission, it seems to me that there is much force in Mr Malik's submission that in the light of the passports that have been produced, as I have said, some four in total going back to 1978, that that satisfies the evidential burden of proof on the claimant and that the burden of proof then shifts to the defendant to prove otherwise. All other things being equal, it seems to me, as I have said, that there is much force in that submission. In very broad terms, it echos what was stated by Burnett J in Liaquat Ali v Secretary of State for the Home Department in paragraph 23 of his judgment:
"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."
As I have said, I am not concerned in these proceedings with the rationality test at all. To that extent, the focus of what Burnett J said in paragraph 23 does not strictly apply to the present proceedings. Nevertheless, as he says there, that in circumstances where the Secretary of State has been satisfied that an individual is entitled to a passport, the Secretary of State would, in the ordinary course at least, need to advance cogent reasons that stood up to scrutiny why on a later applications she was taking a different view. In the event, I do not need to decide this case simply on the basis of Mr Malik's first main submission, and I say no more about it.[17]Second, Mr Malik submitted, as I have indicated already, that even if that were wrong, the decision of the Adjudicator should still be regarded as a starting point. In that context, he referred me in particular to a number of authorities, including Devaseelan v Secretary of State for the Home Department [2003] IMM AR 1; DB (Dependent Relative - Appeals Procedure) Pakistan [2003] UKAIT 00053; Djebbar v Secretary of State for the Home Department [2004] EWCA Civ 804; Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT00312 (IAC). However, those cases were not directly concerned with the issue that arises here. As I have stated, the decision of the Adjudicator previously involved different parties and did not give rise to any res judicata. Nevertheless, Mr Malik further submitted that the Adjudicator's decision should still be regarded as a starting point. He may be right but in my view it is unnecessary to determine that point. My tentative view is that for similar reasons to those that I have expressed in relation to the res judicata point, in truth that determination provides no real starting point, certainly no real starting point which is any stronger than the fact that the Secretary of State has already, as I have said, issued some four passports going back to the first one issued in 1978.[18]Turning then to the third submission, Mr Malik said that even if I did not accept his first two submissions, nevertheless here the totality of the evidence satisfied the burden of the claimant. In that context, Mr Malik relied upon, of course, the fact of issuance of the passports that I have already referred to together with, in relation to each of the three renewals, the renewal documentation that has been provided. That, submits Mr Malik, shows that the claimant is indeed the Monir Ali that is referred to and lends further support to his case. Secondly, Mr Malik relies generally on the evidence of the claimant. He produced a written witness statement, the truth of which he confirmed when he gave oral evidence before me. It is unnecessary to set out in detail what he says in that statement but in summary he explains when he was born, that is on 1 January 1939, in what is now Bangladesh. He confirms his name, Monir Ali. He confirms that his parents were committed Muslims. He identifies the names of his parents. He says that although there was no birth certificate that was issued at the time of his birth, which is perhaps entirely unsurprising, he produces as an attachment a registration certificate confirming his birth. It is a document included in the bundle. He confirms that from that point until June 1962 he lived in Sylhet and thereafter came to the United Kingdom in June 1962. He confirms that he was registered as a British citizen on 18 January 1968 and then refers to the various passports that were issued in his name with his picture. He also confirms his marriage to his wife, who is a Hindu, and the dates of birth of their three children and that he continued to live in England. He then explains why he decided to change his name from Monir Ali to Jayram Sinha by way of deed poll, as I have said already, on 9 August 2000, and I quote, he says:
"I felt that the time had come to change my Muslim name, Monir Ali, to a Hindu name, Jayram Sinha, and to have the same surname as my wife and children (Sinha)."
[19]It may be that that was the cause of the various problems that have now arisen with regard to the issuance of his passport. I do not know. Anyway, all of that was confirmed, as I have said, in his statement. He gave evidence before me. He was then cross-examined by Miss Collier. She put various questions to him, seeking to elucidate where he lived and what work he did during the period when he says he came to England in 1962. It is fair to say that she did not challenge much of his evidence. She did not, for example, challenge that he was indeed born on 1 January 1939. She did not challenge the authenticity of the registration certificate showing his date of birth, nor indeed any of the other evidence he gave with regard to his residence in England and the work that he did since 1962. She did put to him certain matters which are referred to in the decision of the Secretary of State being information which he allegedly gave in the course of various interviews and also with regard to the counterfeit certificate that I have already referred to. I will so far as necessary revert to that in due course. In addition, Miss Collier put to him that regardless of what he said there were no documents to support his residence in England and the work that he did in the period at least before the year 2000. I should perhaps have said, and I will come to it, that there were certain documents relied upon by Mr Malik but did not pre-date the year 2000. As to that, Mr Sinha said that he had given lots of documents to a lady in the passport office, who he named as Miss Kitaka, but she told him that she had lost lots of documents. That is a matter that I cannot resolve. It is impossible to say what documents he might have submitted to Miss Kitaka or the passport office. It is impossible to resolve whether what the claimant now says happened did indeed happen. I am prepared to proceed on the basis that there are no documents now available at least showing his residence and work prior to the year 2000. Be that as it may, it does not detract, really, from the substance of the claimant's evidence, as I say, none of which was properly challenged, if it was going to be challenged, by Miss Collier.[20]So that is the first part of the evidence Mr Malik relies on, that is the statement of the claimant and his oral evidence. In addition, Mr Malik also relies upon other evidence, some of which I have referred to already but for the sake of completeness I should mention again if I have not mentioned it already. The first is a letter dated 13 May 2002 which is signed by him, Mr Sinha, and sent to the British High Commission in response to a letter from the British High Commission dated 2 May 2002 asking for details as to how he, Mr Sinha, first entered in the United Kingdom. In his response letter dated 13 May, Mr Sinha says the following:
"As per above reference, I want to inform you that I have entered in the UK by Job Voucher in June 1962 from East-Pakistan that time."
That letter confirms, therefore, at a very early stage, in 2002, in response to the request made, that he, Mr Sinha, arrived in England in June 1962. On that basis, Mr Malik submits there is no reason to suggest that Mr Sinha was lying then.[21]In the letter dated 28 May 2012, is it said that Mr Sinha stated during interview that he first entered the United Kingdom in 1978. It is said by Miss Collier, as one of the reasons, therefore, for disputing the claimant's evidence, that that is inconsistent with his evidence that he came to England earlier, in June 1962. There are very considerable difficulties, however, with regard to this. As I have stated, although the letter refers to this being stated by Mr Sinha during an interview, no notes of interview have been provided and there is no witness statement from any individual who was there at the time to confirm that that is indeed what Mr Sinha apparently said during the interview. In his evidence, Mr Sinha categorically denied that he had ever said that. It is clear from Mr Sinha's demeanour in giving evidence that he has sometimes difficulty in expressing himself, and listening to his evidence I am bound to say that I was somewhat confused on certain points. However, what is plain even from the face of the letter dated 28 May 2012, for example when the letter states that during one of the interviews he apparently claimed to have received his first passport in 1988, is that either the person who conducted the interview did not understand Mr Sinha correctly or possibly even that Mr Sinha made a mistake. We now know clearly, and indeed the Secretary of State knows quite clearly, that in fact there is a passport in the name of Monir Ali which was issued before 1988 certainly, in 1978. That being the case, it seems to me that Mr Malik is right that this letter, going back to the letter of 13 May 2002, strongly supports the credibility of the claimant.[22]The second further document relied on is the document described as a birth certificate, which confirms Monir Ali being born, as he says, on 1 January 1939, with the name of his parents. This is the document which I have already referred to exhibited to the claimant's witness statement, as to which he gave evidence and, as I have stated, that was never challenged by Miss Collier during the course of cross-examination.[23]Thirdly, Mr Malik relies on various payslips dating from the year 2000 which show Monir Ali being employed and being paid a salary. All of those matters, in my view, taken together, more than satisfy the burden on the claimant to show that he is a British citizen and entitled to a new passport and, for the avoidance of doubt, if it is necessary, to show that the claimant who is now named Mr Sinha is the original Monir Ali referred to in those documents and in the passports that I have already referred to.[24]The real focus then is, in the light of that, what is the Secretary of State's case as to why that conclusion should in some way be displaced? First, the Secretary of State states in paragraph 81 of the detailed grounds of defence that the claimant is unable to show that he is Monir Ali as he has no original documentation and no documentation pre-dating 1988 which proves that he is Monir Ali. That is true in part, although I should explain, and I think Miss Collier would accept, that at the very least the first passport produced which was issued in 1978 is at least some proof that he is indeed Monir Ali. As I have said, it shows his photograph and his name and his date of birth. There can be no doubt from that passport that the claimant who I saw giving evidence is the named person in that passport. However, even in the absence of original documentation, the entirety of the evidence that I have referred to satisfies me that he is indeed a British citizen and entitled in principle to a passport.[25]So what other matters have been raised that might displace that conclusion? These are set out, helpfully, in paragraph 82 of the detailed grounds of defence and I should set those out:
"a. In 1968 Monir Ali was ordinarily resident in the United Kingdom and had been resident there for twelve months prior to the 18.1.68. This is consistent with the Home Office record which states that a British passport was first issued to Monir Ali in 1962 and is inconsistent with the Claimant's claim that he first arrived in the United Kingdom in 1978; b. If the Claimant had been registered as a Citizen of the United Kingdom and Colonies in 1968 it is surprising that the Claimant is unable to produce the certificate of registration issued to him in 1968 but has a counterfeit registration certificate purportedly from 1978; c. There is a discrepancy between the dates of birth on the records held by the Home Office in relation to Monir Ali (1.1.30) and those for Jayram Sinha (1.1.39); d. The Claimant states that his first British passport was issued in 1988, but Home Office records show that passports were issued to Monir Ali prior to 1988, the first being in 1962."
[26]In my view, this first point, a, carries no real weight at all. The essence of the point, based upon what is said in the letter of 28 May, is that according to the Home Office records a British passport was first issued to Monir Ali in 1962 and this is inconsistent with the claimant's claim that he first arrived in the United Kingdom in 1978. The problem with this assertion is that the premise is that he did first arrive in the United Kingdom in 1978. However, the evidence that I have referred to is, as I have indicated, to the contrary. Moreover, there is no evidence before me, or at least no proper evidence, to persuade me that the claimant did indeed say in the course of one of the interviews that he did first arrive in the United Kingdom in 1978. Not only are there no records, and again I mention what I have already said, but there are obvious matters in this letter which show that if the claimant did say certain things in the interview, or is recorded as having said certain things, that is almost certainly because the person conducting the interview misunderstood what he said or alternatively, possibly, Mr Sinha made a mistake. But there is nothing in this first point, in my view, which assists the Secretary of State on the evidence before me.[27]The second main point is potentially much more important. In particular, what is there said is that it is surprising that the claimant is unable to produce the certificate of registration issued to him in 1968 but has a counterfeit registration certificate purportedly from 1978. This is an important point. Mr Malik has accepted before me that the evidence shows that the certificate referred to by the Secretary of State is indeed counterfeit. Nevertheless, Mr Malik makes two points. The first is that the Secretary of State has produced no evidence as to when the counterfeit certificate was produced or where it was produced. In evidence, when cross-examined, Mr Sinha said that he had no recollection of providing that certificate at any stage. That may or may not be right. I am bound to say that it is surprising that if he did not provide that certificate that the Secretary of State refers to it in the letter of 28 May 2012. Indeed, if in truth he had not provided it, one would have expected Mr Sinha to have responded in categoric terms to the letter of 28 May 2012. The fact that he did not do so is, in my view, very powerful evidence indeed that, contrary to his evidence, he did produce that counterfeit certificate and submitted it to the Secretary of State. The question then arises on the assumption that he did produce this counterfeit certificate and submitted it to the Secretary of State, what is the consequence of that? That is, in my view, the most difficult point in this case. It may be as a result of that action that Mr Sinha may be subject to criminal proceedings. As I have already indicated, he was arrested, apparently, although in the event a decision was taken to take no further steps by way of prosecution. It is unnecessary to consider that further but be that as it may, Mr Malik submitted, and I did not under Miss Collier to disagree, that even if Mr Sinha did produce this counterfeit certificate, that does not prejudice his status as a British citizen or one who is entitled to a new passport. It may be, as I have said, that that action involved a criminal offence which he may be prosecuted for but, in the event, it does not seem to me that if the facts show otherwise that I should reach a different conclusion. It is well known that individuals, sometimes at least, lie to bolster what they perceive to be a good case. Equally, if the position were one of considering rationality, whether in the light of that counterfeit document the Secretary of State would have been entitled to conclude that the evidence of the claimant was to be disbelieved generally, as I think Mr Malik fairly accepted, then the existence of this counterfeit document would be strong material against the interference by this court of any such decision on grounds of irrationality. However, importantly, that is not the issue that I have to determine. As I have said, the issue before me is simply whether as a matter of fact the evidence shows that on a balance of probability Mr Sinha is a British citizen, and in that context it seems to me that whether or not it might be said that Mr Sinha committed a criminal offence in producing this registration certificate, it does not assist in this context, or at the very least it seems to me that the rest of the evidence is such that it does not displace that conclusion.[28]Thirdly, the Secretary of State says in subparagraph c that there is a discrepancy between the dates of birth on the records held by the Home Office records in relation to Monir Ali, being 1 January 1930, and those for Mr Sinha, being 1 January 1938. In my view, this is a hopeless argument. The Secretary of State has produced no evidence by way of records to support that ground. Second, it is wrong to say that the records do not show a Mr Monir Ali with a date of birth of 1 January 1939. All the four passports that I have referred to and the application forms made in support of the renewal of those passport show a Mr Monir Ali with that date of birth. It may be that the Home Office have other records concerning another individual, another Monir Ali, with that birth date. In evidence, Mr Sinha said that Monir Ali is not an uncommon name, and there is no evidence before me to suggest otherwise. In my view, this third ground is, as I have stated, of no merit whatsoever.[29]Fourthly, Miss Collier submits that the Home Office records show that passports were issued to Monir Ali prior to 1988, whereas the claimant states, she says, that his first British passport was only issued in 1988. That again is one of the points raised in the letter dated 28 May but again, in my view, this point is hopeless. We now know that even if Mr Sinha did say during the course of an interview that his first British passport was issued in 1988, that that was obviously wrong because, as I have said, we have seen a passport issued in 1978. The conclusion that I reach therefore is that the person who conducted the interview may well have even mistaken or misunderstood what Mr Sinha said, alternatively that Mr Sinha during the interview did say that but was obviously mistaken. Whatever the position is, the passports speak for themselves.[30]In the light of all of that, the conclusion which I reach is that the evidence before me is such as to persuade me that on a balance of probability Mr Sinha is Monir Ali and that he is therefore a British citizen and entitled to a new passport. On that basis, I would invite counsel to agree a draft order for me to consider.[31]Is there anything else I need to deal with?[32]MR MALIK: I am very grateful, my Lord. My Lord, on the question of relief, I am happy to draft an order. Shall I draft the order in the terms identified in the claim form?[33]MR JUSTICE EDER: I think what I would prefer, if you could, Mr Malik, is prepare a draft order, send it to Miss Collier for agreement and then send it to me for approval.[34]MR MALIK: Very well, my Lord. My Lord, the other consequential is, of course, costs.

MR JUSTICE EDER: Yes.

[36]MR MALIK: I seek an order requiring the Secretary of State to pay the claimant's costs, to be assessed if not agreed.

MR JUSTICE EDER: Yes.

[38]Yes, Miss Collier?[39]MISS COLLIER: My Lord, of course I have heard your judgment and it is fair to say that at least half of the case was decided against the Secretary of State. However, it is right to say that the question of res judicata was decided in the Secretary of State's favour, and so I would invite your Lordship to make an order for part of the costs to be paid by the Secretary of State to the claimant, to reflect the findings that you have made.

MR JUSTICE EDER: Is there anything else you want to add or not, Miss Collier?

[41]MISS COLLIER: No.[42]MR JUSTICE EDER: Let me tell you, in my view, reading the letter of the Secretary of State, or the UKBA, the real problem in this case has been on the basis that I have said, that the claimant produced, on my findings anyway, a counterfeit document. It is the production of that counterfeit document which, it seems to me, has caused probably the entirety of the problems. If you read that letter, that lies at the heart of it. If that is right, I am bound to say I am not sure that the claimant should be entitled to any of his costs. A party who presences to a public authority a forged certificate, in my view, is not entitled to get the benefit of the exercise of the court's discretion.[43]MISS COLLIER: My Lord, of course I am very grateful for your observations.[44]MR JUSTICE EDER: It is a matter for the court, I suppose, but that is my tentative view, Miss Collier. If I were to consider that that was a relevant consideration, is that something that you would wish to comment on?[45]MISS COLLIER: Of course, my Lord. I, with gratitude, accept your analysis and, as has been confirmed only a moment ago when I rose to take instructions, it has caused considerable problems for the Secretary of State in this matter and it has shown that the claimant has been prepared to deceive the authorities if he concluded that that was going to serve his purpose. I am not sure, my Lord, that there is anything I can add.

MR JUSTICE EDER: No, thank you.

[47]Mr Malik, there are two points, really, that you need to address. One is the point that Miss Collier makes, that although you succeeded there are certain points at least which you raised on, for example, the res judicata point and I suppose the Obi point, which I did not address in my judgment simply because in the light of your submissions it seemed to me to disappear into the background.[48]MR MALIK: Yes.

MR JUSTICE EDER: But what do you say about this counterfeit certificate?

[50]MR MALIK: My Lord, I, of course, see the force in what my Lord has said but the problem here is that we do not know at what stage that certificate was submitted. We know that the initial application was refused in 2011 and then the matter was reconsidered, the claimant was interviewed a few times and after the last interview the latest decision was made. So what we do not know is exactly when that certificate was submitted and, of course, I have taken a tentative note of what my Lord has said and my Lord has not, in my respectful submission, expressly determined the point as to whether the claimant had actually submitted the counterfeit certificate.[51]MR JUSTICE EDER: I will have to read what I said but my recollection is that I said in the clearest terms possible that although he could not remember when he had sent it, the inference is he must have sent it himself, and I also said that if the position were otherwise, then he would have responded and said "I have never sent it".[52]MR MALIK: I take my Lord's point but it may be the case that the Home Secretary had refused his application and then he had submitted a counterfeit certificate in frustration, to get a prompt passport but, given that we do not know exactly when the passport was submitted, I would ask my Lord not to attach any weight to it when it comes to assessing the costs.[53]MISS COLLIER: My Lord, if I may assist on this point, page 63 of the bundle. It is a letter dated 6 March 2009 from Miss Kitaka, who you will recall was somebody that the claimant spontaneously mentioned as being a person concerned with his case, and that letter there shows Miss Kitaka sending off the --

MR JUSTICE EDER: Yes, 6 March 2009, at an early stage.

[55]The carpet has been pulled from under you, Mr Malik.[56]MR MALIK: Yes, it appears so, my Lord.

MR JUSTICE EDER: That is very early on, is it not?

[58]MR MALIK: Yes, I accept that.[59]MR JUSTICE EDER: I am bound to say, Mr Malik, that in the light of that, if that is right, and you may want to take more instructions on it, but Miss Collier does seem right in saying it is March 2009. I am looking at the conclusion of the National Document Fraud Unit at page 65. I think it is dated 23 March 2009. So they concluded it shortly afterwards, within a few weeks of the request from Miss Kitaka, and it seems to me if one looks at the letter rather carefully of the Identity and Passport Service, the 28 May letter, it is quite plain that that is the real focus of that, if you look at the pre-penultimate sentence on page 96: "Furthermore the Registration Certificate you supplied, a key evidence of your claim to British citizens has been shown in fact to be a forgery".[60]MR MALIK: I take my Lord's point. I think the claimant would be content with what my Lord has decided but I will leave this point.[61]MR JUSTICE EDER: Let me say something briefly about costs. I have just delivered a judgment in this matter. Mr Malik now seeks an order for costs in favour of his client. In my view, the difficulty with that is that the main problem that seems to have given rise to all these proceedings and the various interviews and the ultimate rejection of the claimant's application is the fact that he produced a forged certificate of registration. It appears from the document I have seen that that was produced at a very early stage, 6 March 2009, and that within a very short period, by 23 March 2009, the National Document Fraud Unit had come to the conclusion that that registration document was indeed a counterfeit document. It is plain from the letter of 28 May 2012 that the reasons for rejection of the application focused very much on this forged document which, as described in the letter, was regarded as key evidence for the claimant's claim to British citizenship. It is fair to say that the letter also refers to other matters as well but, in my view, given what I have said in my judgment, it seems to me that it would be wholly inappropriate to make any order for costs in favour of the claimant. It seems to me that on the basis that I have said, there is a strong reason to believe that but for that document the whole shape of the proceedings would have been very different indeed. That being the case, in my discretion I decline to make an order for costs in favour of the claimant and I decide to make no order for costs at all. I would be grateful if that could be recorded, please, in the draft order.

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