Mahmood, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4023 (Admin)

Case No CO/14329/2013[2014] EWHC 4023 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 13th November 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE GOSS
Between
THE QUEEN ON THE APPLICATION OF MAHMOODClaimantv
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 7831 8838(Official Shorthand Writers to the Court)
Mr S Harding (instructed by Singh Solicitors) appeared for ClaimantMr S Singh (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE GOSS: This is a claim for judicial review of the Secretary of State for the Home Department's decision, made on 26th March 2013, refusing the claimant's application for a British passport. The claimant seeks an order quashing that decision and declarations that she is entitled to rely on DNA testing to establish that she is the daughter of Ibrahim Mahmood (Deceased), who was a British citizen, and that she is entitled to be granted full British passport facilities.[2]Permission to bring this claim was granted by Bobbie Cheema QC, sitting as a Deputy High Court Judge, on 9th January 2014, who also extended time to make the claim and gave case management directions.[3]The claimant is a national of Yemen where she resides. She applied for a UK passport on 8th November 2012. The application was considered by Lesley Tant, a passport officer (Middle East and North Africa). He has provided a witness statement, dated 29th March 2014, to which is exhibited copies of the application, the claimant's Yemeni passport and notes of an interview of the claimant he conducted on 19th March 2013.[4]Prior to the application being made by the claimant, at the request of solicitors acting on her behalf a request was made in April 2010 to Cellmark for analysis of DNA samples to be taken from the claimant and her brother, Sharif Ibrahim Mahmood, who was in the UK and had acquired British nationality through his parents, to establish their sibling relationship. That process was commenced but stalled through 2011, difficulties being encountered by reason of the closure of the British Embassy in Yemen. By letter dated 20th November 2012 the claimant's solicitors wrote to the British Embassy in Amman, referring to the claimant's entitlement to a British overseas passport through her parents and the suggestion that her identity was confirmed by way of a DNA test. The Overseas Passport Management Unit of the Foreign and Commonwealth Office and the Home Office Identity and Passport Service responded by a letter dated 30th November 2012 in the following terms:
"DNA test results are only considered in support of passport applications after the application has been submitted and all verification checks have been made. This is likely to include an interview. If after that time passport officials assess that they are unable to prove the identity of the applicant, they may offer them the option to submit DNA testing. This will need to be undertaken under our strict guidance in Amman and private DNA testing will not be accepted. DNA is not considered in every application. The first step for Miss Mahmood is to submit an application in Amman... If documentation is not available Miss Mahmood should submit a covering letter explaining the reason behind this. She should be aware the onus is on the applicant to submit all relevant documentation and without this the application is likely to be refused."
[5]In the passport application the applicant's name was "Jumuria Ibrahim Mahmood", her date of birth was 26th May 1962 and her place of birth was Congo. Accompanying the application, as proof of identity, was a Yemen passport issued on 20th June 2012 in the name of "Gomeria Ibrahim Mohammed Mahmood", place of birth Abyan, Yemen, and date of birth 5/9/1960.[6]In the interview that was conducted on 19th March 2013 the claimant is recorded as saying that her brother, Sharif Mahmood, completed the application form and confirmed with her that all the details were correct. Her full name was Jumuria Ibrahim Mahmood, born in 1962, in Congo, because her parents were living in Congo. When asked when she left Congo, she said she did not know. Her father left Yemen in 1973 to go to Congo. When asked to explain the differences between the names, dates and places of birth on her application form and Yemen passport, her response was:
"This is my identity"
. There were conflicting responses in relation to her birth certificate and she said that she provided her Yemen identity card to obtain the Yemen passport. She did not respond to the question:
"What documents did you submit to obtain your Yemen identity card?"
She confirmed that she understood all the questions and added that she could get all the documents. The passport of Ibrahim Mohammed Mahmood, date of birth 1912, issued in Abidjan on 18th October 1974 identifies four children. The third being Jumuria, date of birth 26th May 1962.[7]The letter of 26th March 2013, refusing the claimant's application for a UK passport, was in the following terms:
"I refer to your application which was assessed based upon the documents provided and your interview on the 19th March at the British Embassy in Sana. You have applied for a British passport. When applying for a British passport the onus is on the applicant to prove that he/she is a British national. British passports can only be granted once an applicant has provided satisfactory documentary evidence of both their identity and their claim to British nationality. Each applicant is required to establish that they are the person named in all the documentation they have provided. The documents you provided did not conclusively prove this. Therefore you were interviewed in connection with your passport application on 19th March. I have carefully considered the points made in your interview and the statements made in your passport application. We have also considered documents submitted in support of your passport application. However, you have failed to provide satisfactory explanation as to the clear discrepancies in your identity and the conflicting statements you made regarding your birth certificate. I am therefore not able to establish that you are the true holder of the claimed identity and I therefore not satisfied that you are entitled to a British passport. Under these circumstances, the application falls to be refused and I have closed the file."
[8]Lesley Tant, in his witness statement of 29th May 2014, confirms the inadequacy of the explanations for the discrepancies and conflicting statements. He goes on to explain that he did not request a DNA report because it seemed to him that the claimant was seeking to obtain a completely different identity in a British passport. Privately commissioned reports are not accepted and case workers may only accept a DNA test report from an organisation accredited by Her Majesty's Court Service. The DNA testing policy states that if the only reason for the refusal is that the relationship cannot be proven the case worker may request a DNA test report. In this case it was the claimant's identity that was in question and not simply the existence of a relationship. DNA testing could have shown a genuine relationship but it would not have revealed anything about the claimant's real name, date of birth and place of birth. So it would not have dealt with the central issue of discrepancies in the claimant's identity details.[9]In response to Lesley Tant's statement the claimant has lodged witness statements from herself and a joint statement from Sharif Ibrahim Mahmood and Sabria Ibrahim Saleh, who state they are the claimant's brother and sister. These statements seek to address the contradictions and discrepancies referred to above. They explain that the claimant's pet name was Gomeria and that is what she is called, how she was left with her aunt from a young age, who completed her application for an identity card when she was around 10 years of age and, not having the correct details, in effect ‘made up’ her date and place of birth.[10]The whole basis of the claimant's case is that she wants to prove she is who she says she is, namely the daughter of Ibrahim Mohammed Mahmood, and thereby entitled to British citizenship. In order to do this is it submitted she needs to prove, by DNA testing, that her brother is Sharif Ibrahim. She is denied this and so is unable to prove her identity. Once she has proved she a sibling of Sharif Ibrahim it would then just be a question of determining the formalities of her name, date of birth and place of birth.[11]It is submitted on her behalf that the defendant's decision did not consider the obtaining of DNA and, therefore, the defendant did not reasonably exercise discretion to refuse the obtaining of DNA in order to determine the claimant's identity.[12]On behalf of the defendant it is argued that the issue of DNA testing is irrelevant. The onus is on the claimant, as an applicant, to establish her identity. By reason of the contradictory evidence as to her identity and her failure to provide any consistent or satisfactory explanation as to the discrepancies, the decision to reject her application as the person and with the personality details contained in an application was lawful and reasonable and in accordance with stated policy.[13]There can be no doubt that it was for the claimant to establish her identity. By the entries on her application form and the document she provided, namely her Yemen passport, together with the answers she gave in interview, the defendant's officer was entitled to conclude that she had failed to establish her identity. Accordingly, the stage of establishing her relationship had not then been reached, so the issue of DNA testing had not arisen on the evidence then available to the defendant. There was no failure, or certainly no unreasonable failure to consider DNA evidence at that stage. It is not for this court to judge the merits of the claimant's application in the light of the evidence now provided. This court has to address the issue on the available evidence to the defendant's determining officer. I am quite satisfied that, on the evidence available at the time, the defendant's decision was lawful, rational and not unreasonable. Accordingly, this application must be dismissed.[14]MR JUSTICE GOSS: Mr Singh, before we come on to the consequential orders, I emphasise that I have reached this decision for the reasons given and specifically identified that it is not for this court to judge the overall merits of the claimant's application for a full British passport. It should be noted that if there is to be a subsequent application by the claimant, then there will have to be total re-appraisal, as I am sure there would be, of the claimant's position in the light of any evidence provided with a second application. This cannot simply be a case of saying ‘there has been one unsuccessful application, therefore there is no good reason for a second application succeeding’. As I say, I am not expressing any views, I am simply putting the defendant on notice, so to speak, for the benefit of Mr Harding and those that he represents, that I am very clear about that matter. (Submissions re: costs)[15]MR JUSTICE GOSS: I think, Mr Singh, that there is a point to be made in relation to proportionality here; I am not saying that 12 hours was wholly unjustified but I have to assess what would be a reasonable sum to handle a case with that many papers and not a complex matter. I think it is was a moot point; it was a difficult and arguable point. I consider, assessing the costs summarily, a reasonable sum would be £2,000 and that is what I am going to order to be paid.[16]MR SINGH: I do not think there is any point in quibbling.[17]MR JUSTICE GOSS: Miss Alder, reluctantly, is in agreement with you judging by the expression on her face, indicating, I surmise, that she does not want you to push the matter further.[18]I will say that, having regard to the defendant's statement of costs, my view in relation to some of the items that are contained within that statement, without descending to detail which one does not do, of course, in a summary assessment, but having regard, in particular, to proportionality and the complexity of this particular case, a fair and reasonable sum would be £2,000 by way of the defendant's costs. I therefore order the claimant to pay the defendant's costs summarily assessed in the sum of £2,000.[19]Thank you both very much indeed.