Easy, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3344 (Admin)

Case No CO/243/2015[2015] EWHC 3344 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice CentreDate 25 November 2015
Before
MRS JUSTICE LANG
Between
THE QUEENClaimantOn the application ofClaimantSAMUEL NATHANIEL EASYClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Ramby de Mello (instructed by Fountain Solicitors) for ClaimantMs Naomi Candlin (instructed by T he Government Legal Department) for DefendantHearing Hearing date: 6 November 2015
Judgment
[1]The Claimant applies for judicial review of the Defendant’s refusal to renew his British passport, previously issued on 29 March 2001.[2]The decision was made by Her Majesty’s Passport Office (HMPO) which is an executive agency of the Home Office. HMPO said, in a pre-action protocol response to the Claimant’s solicitors on 16 December 2014:
“Your client’s stated identity is that of an infant born at North Middlesex Hospital London on 27/12/75 who subsequently died in infancy on 21/01/1977 at St Leonard’s Hospital London. The above information has been confirmed by the General Register Office of England and Wales. As such the passport previously issued to your client in 2001 at the British High Commission in Kingston Jamaica was issued erroneously on the basis of false information. Despite the decision taken by the Crown Prosecution Service not to proceed with your client’s case, this has no bearing on the fact that your client has no entitlement to a passport in an identity that is patently not his own. In view of the foregoing, I can only reaffirm our position that your client will not be issued a British passport in this identity. If your client is subsequently in a position to furnish evidence of his true identity, that also qualifies him for British citizenship, then we will of course consider any future application. It may also be in your client’s interests to contact the Jamaican authorities and any other family members who may have further knowledge of his identity.”
[3]The Claimant was granted an extension of time and permission to apply for judicial review by Hickinbottom J. on 21 July 2015. Hickinbottom J. also gave the Claimant permission to file amended grounds and additional evidence.

History

[4]The Claimant resides in the United Kingdom (UK) and has done since 2001.[5]In January 2001, the Claimant applied at the British High Commission (“BHC”), Kingston, Jamaica for a UK passport, relying on a short birth certificate in his name, showing his date of birth as 27 December 1975, and the place of birth as London, UK.[6]The officials at the BHC conducted a birth and death check with the General Registrars Office (GRO).[7]The full birth certificate stated that a male named Samuel Nathaniel Easy was born in London on 27 December 1975. His birth was registered on 13 March 1976. His mother was recorded as Juliet Her first name is spelt differently in the various documents (Juliet and Juliette), however, all references appear to relate to the same person. Marcia Jenkins (place of birth Birmingham) and his father as Elias Alexander Easy (place of birth Jamaica; occupation cabinet maker).[8]However, the checks also generated a death certificate which showed that the male named Samuel Nathaniel Easy who was born in London on 27 December 1975 died on 21 January 1977 at St Leonard’s Hospital London. The death was registered on 9 March 1977. The father Elias Alexander Easy was named on the death certificate. The BHC was sent this information in a letter dated 1 February 2001.[9]The Claimant was interviewed by the BHC on 25 March 2001. He told them that he was born in England on 27 December 1975. His mother’s name was Juliette but he did not know the identity of his father. At the age of 1, he was sent to live in Jamaica with his grandparents. His grandfather Lester Jenkins was already dead. His grandmother Violet Jenkins had just died the previous week.[10]The BHC interviewed Juliette Marcia Jenkins on 29 March 2001. She confirmed she was the Claimant’s mother. She said she was born in Birmingham, UK on 20 February 1957 and had lived in the UK for 29 years. She held British and Jamaican passports. She had returned to Jamaica to visit her mother who was ill, and had just died. She intended to return to live in Jamaica soon. She had three children. The Claimant, Samuel Nathaniel Easy was born on 27 December 1975. His father was Elias Alexander Easy. She explained that the Claimant had been sent to Jamaica in 1976 to be raised by her mother, Violet Sandrina Jenkins, because she (Juliette) was working and could not care for him. His grandparents brought him up in Jamaica.[11]The BHC conducted investigations which confirmed the Claimant’s name and address and longstanding residence in Jamaica, as well as his good character. The investigations included statements from his employer, the pastor at his church and his doctor. His class teacher at the Kitson Town All-Age School confirmed that he had attended the school for 9 years, graduating in July 1990. The BHC obtained a copy of his Jamaican driving licence issued on 22 March 2001.[12]The BHC received a declaration made on oath by Lasville V.A. Miller,

Justice of the Peace, stating:

“I know Samuel Nathaniel Easy to be the child of Juliette Marcia and Lester Jenkins – born 20.2.1957 – 134 Heathfield Road, Handsworth, Birmingham, England as per certified copy entries of birth attached.”
It is not clear which birth certificate the JP was referring to. It also seems to be inaccurate as it is common ground that Lester Jenkins was the father of Juliette Jenkins, not the father of the Claimant.[13]The BHC obtained the birth certificate of Juliette Marcia Jenkins which stated that she was born on 20 February 1957 in Birmingham, UK. Her parents were Lester Jenkins and Violet Sandrina Jenkins (nee Morgan) who were resident in Birmingham, UK.[14]I infer that the BHC was satisfied that the Claimant was entitled to be issued with a British passport in the identity he claimed, as the passport was duly issued on 29 March 2001. The Claimant and his mother were interviewed after receipt of the death certificate but there is nothing in the interview notes to indicate how they explained the discrepancy and satisfied the BHC of the Claimant’s identity.[15]Thereafter the Claimant travelled to the UK and took up residence here. He obtained a UK driving licence. The Police National Computer identifies him as Samuel Nathaniel Easy, born 27 December 1975 in London. Some of his children have obtained British passports, based upon application forms in which he is named as their father, and a British citizen.[16]On 26 September 2011, the Claimant applied to renew his passport (it expired on 29 March 2011). His application triggered a match on the Defendant’s Warnings Index in respect of passports issued after the registered death of a child.[17]Having considered the material which was before BHC in 2001, the Defendant went on to check the details of death with HM Coroner who provided the following records: i) A witness statement from Juliet Marcia Easy aged 19 years (DOB 20.2.57) living in London describing how her baby Samuel died in a house fire at their home on 21 January 1977. ii) A report of the incident from the Metropolitan Police. iii) The post mortem report. iv) The Coroner’s Inquisition, dated 8 March 1977, certifying the death of Samuel Nathaniel Easy on 21 January 1977, whose date of birth was 27 December 1975. His father was recorded as Elias Easy, a cabinet maker. v) The Coroner’s Officer’s Report and notes of evidence. The baby was pronounced dead at hospital at 4.45pm on 21 January 1977. In the notes of evidence, there is a formal record of Juliet Marcia Easy identifying the deceased as her son on 26 January 1977 before Douglas Chambers, the Coroner.[18]In March 2013, the Claimant was arrested and subsequently charged with offences of procuring a passport using false identity details, contrary to section 36 Criminal Justice Act 1925. He was committed to Birmingham Crown Court for trial on 4 April 2013.[19]At a hearing on 4 October 2013, the prosecution offered no evidence and he was acquitted. The transcript of the hearing records counsel for the prosecution (Mr Spratt) saying:
“Our case is that he is not Samuel Nathaniel Easy but the defence case, as I have seen from unused material that we have disclosed and, of course, in conversation, is simply this: that this defendant has always been known as Samuel Nathaniel Easy and documentation from Jamaica where he was at school says that they also knew him as Nathaniel Easy. It seems to me that we would run into a potential difficulty on the issue of whether there had been any dishonesty on his part in any event in making said statement. But, more compellingly, we have taken a few moments to look at the various births and death certificates that exist in the case – … our case has been thus far based on the following premise: that Samuel Nathaniel Easy was born in 1975 and died in 1977. … Thus, a two-year-old boy. But when one looks a bit more closely at a further birth certificate, one can see that the father in both instances of the person named Samuel Nathaniel Easy is an Elias Easy….Plainly, Elias is of itself an unusual name but made more obviously the same person because the occupation is cabinet maker in each instance. It would seem that there is a more than strong possibility that the same father, who is now in any event, I am told, deceased, had a child in 1975 who died very young and then had another child who had the same name. And this defendant has always been known by his family and by others who knew him as a child and in later years as Samuel Nathaniel Easy. And he has in any event a relationship in this country and a long-term partner and they have a number of children from that union. The point I am really leading to is that we are in an entirely circular position. The prosecution would need to establish (a) the facts but more importantly, that the defendant operated dishonestly at the time of expressing the facts. We are never going to resolve either of those issues to any level of satisfaction before a jury in my submission and accordingly, I am going to make an application that the matter does not proceed to trial. We will offer no evidence and I suspect a verdict will follow…. We are in short just going around in circles …and the point will always be the same. That he says he is who he is and there is some documentation that supports that he might be.”
[20]In light of the acquittal, the Claimant applied to the Defendant to renew his passport. On 7 December 2013, HMPO wrote to the Claimant refusing to do so, on the basis that:
“ (HMPO) are duty bound only to proceed on the basis of information supplied by the Office of National Statistics (ONS) who are responsible for the recording of all births, deaths and marriages in the United Kingdom. ONS have confirmed that Samuel Nathaniel Easy was born 27/12/75 and subsequently died in infancy on 21/01/1977 …. A further check has confirmed that there was only one Samuel Nathaniel Easy born on 27/12/75 in England. As a result of the above, this office maintains our earlier position that your client is using the identity of a deceased child and as such he cannot be the true holder of this identity. He may well have been known as Samuel Nathaniel Easy both in this country and in Jamaica as you have stated, however the fact that the Crown Prosecution Service made an application for the case not to proceed to trial, does not alter our view that your client has no entitlement to a British passport in this identity. Further to your request for the return of Mr Easy’s previous passport I can confirm that the passport issued in Jamaica in 2001 was issued erroneously and cannot be returned…”

Grounds for judicial review

[21]The Claimant submitted that the Defendant was required to renew his passport because he was a British citizen and entitled to a British passport. The passport issued on 29 March 2001 amounted to proof of this fact: see section 3(9) of the Immigration Act 1971.[22]The Claimant was the holder of a valid passport. The passport was properly issued and could not be said to be a nullity on grounds of deception, as deliberate dishonesty on the part of the Claimant had not been established and was no longer relied upon by HMPO, following his acquittal. His passport could not be withdrawn, unless his citizenship was withdrawn under section 40 of the British Nationality Act 1981.[23]The Claimant had a substantive legitimate expectation that the Defendant would renew his passport upon its expiry. The issue of the passport in 2001 was a clear, unambiguous representation to him that the Defendant accepted he was a British citizen and entitled to a British passport. He had relied upon the representation by relocating to the UK and in obtaining British passports for his children.[24]Applying the test in R v Inland Revenue Commissioners ex parte Unilever plc [1996] STC 681, it was conspicuously unfair to depart from the decision made in 2001, solely on the basis of the death certificate indicating that Samuel Nathaniel Easy had died in infancy, since this information was available to the BHC in 2001, and yet they were satisfied of his identity after making independent investigations. If an official makes a mistake in issuing a passport, then the court should, if possible, rectify it without doing harm to others: see re Gowa DC/628/81, at p.10.[25]The change in stance was both irrational and unexplained. It was plainly irrational for the Passport Office to assert that they were “duty bound only to proceed on the basis of information supplied by the Office of National Statistics (ONS)” (letter of 7 December 2013). The explanation that the passport was issued “erroneously” was inadequate. Following the collapse of the prosecution for fraud and his formal acquittal, the Defendant did not (or could not) rely upon any allegation of dishonesty on the part of the Claimant.[26]Any withdrawal or refusal to renew the Claimant’s status as a citizen of the EU is subject to the principles of proportionality: see Rottmann v Freistaat Bayern Case C135/08 [2010] QB 761, at[41-56]; Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, at [98], [108-110].[27]Withdrawal of his passport had severe consequences which engaged Art. 8 ECHR. He was likely to lose British and EU citizenship; although he was probably eligible for Jamaican citizenship, the Jamaican authorities would probably follow the lead of HMPO and reject his stated identity; he would be unable to travel; identification documents were required in everyday life e.g. by employers, benefit agencies, banks, landlords etc.; his driving licence had been withdrawn; he could not travel outside the UK.[28]The Claimant’s children might also lose their British passports, which would engage Art. 8 ECHR, and the best interests of the children had to be considered under section 55 of the Borders, Citizenship and Immigration Act 2009.

Conclusions

[29]In his submissions, the Claimant did not clearly distinguish between the issue or renewal of a passport and the grant or withdrawal of British citizenship. The Defendant’s decision only relates to the renewal of the Claimant’s passport. There has been no decision in relation to his British citizenship, nor in relation to his right to remain in the UK.[30]Thus, although under section 3(9) of the Immigration Act 1971, a person seeking to enter and remain in the UK can rely upon his passport as proof of British citizenship, this provision is not determinative of the issue in this case, namely, whether or not the passport was properly issued or ought to be renewed. For this reason, this case is distinguishable from R (Obi) v Secretary of State for the Home Department [1997] 1 WLR 1498, in which the issue was whether the Secretary of State had erred in treating the applicant as an illegal entrant.[31]The Claimant is also incorrect to submit that a passport can only be withdrawn if citizenship is withdrawn under section 40 of the British Nationality Act 1981, as decisions as to the grant of a passport are separate from decisions as to citizenship.[32]I refer to the helpful summary of the law on the issue of British passports, beginning at paragraph 2.109 in Macdonald’s Immigration Law & Practice (9th ed.). The power to issue passports is derived from the prerogative, not from any statutory powers. However, in modern times, the executive does not exercise the power arbitrarily or capriciously. Passports will generally be issued to those who have established that they are British citizens, unless there are exceptional reasons not to do so.[33]Statements have been issued by HM Government from time to time According to the Defendant, at the time of the Claimant’s renewal application in 2011, the material part of HMPO policy was set out in a written answer to a parliamentary question, as follows:
“Joan Ryan [holding answer 18 May 2007]: Passports are issued at the discretion of the Secretary of State under the Royal prerogative. In practice, passports are issued when the Secretary of State is satisfied as to the identity and British nationality of applicants, in accordance with legislation, except in certain well defined categories, of which Parliament has been informed from time to time….” (Hansard HC 23 May 2007, Col. 1332W) on the manner in which the prerogative will usually be exercised. Most recently, on 25 April 2013, the Defendant laid a written ministerial statement in the House of Commons. I set it out below, with emphasis added to relevant passages: “The British passport is a secure document issued in accordance with international standards set by the International Civil Aviation Organisation. The British passport achieves a very high standard of security to protect the identity of the individual, to enable the freedom of travel for British citizens and to contribute to public protection in the United Kingdom and overseas. There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative. This Written Ministerial Statement updates previous statements made to Parliament from time to time on the exercise of the Royal Prerogative and sets out the circumstances under which a passport can be issued, withdrawn, or refused. It redefines the public interest criteria to refuse or withdraw a passport. A decision to refuse or withdraw a passport must be necessary and proportionate. The decision to withdraw or refuse a passport and the reason for that decision will be conveyed to the applicant or passport holder. The disclosure of information used to determine such a decision will be subject to the individual circumstances of the case. The decision to refuse or to withdraw a passport under the public interest criteria will be used only sparingly. The exercise of this criteria will be subject to careful consideration of a person’s past, present or proposed activities. For example, passport facilities may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity. This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world. Operational responsibility for the application of the criteria for issuance or refusal is a matter for the Identity and Passport Service (IPS) acting on behalf of the Home Secretary. The criteria under which IPS can issue, withdraw or refuse a passport is set out below. Passports are issued when the Home Secretary is satisfied as to: i the identity of an applicant; and ii the British nationality of applicants, in accordance with relevant nationality legislation; and iii there being no other reasons (as set out below) for refusing a passport. IPS may make any checks necessary to ensure that the applicant is entitled to a British passport. A passport application may be refused or an existing passport may be withdrawn. These are the persons who may be refused a British passport or who may have their existing passport withdrawn: i a minor whose journey was known to be contrary to a court order, to the wishes of a parent or other person or authority in whose favour a residence or care order had been made or who had been awarded custody; or care and control; or ii a person for whose arrest a warrant had been issued in the United Kingdom, or a person who was wanted by the United Kingdom police on suspicion of a serious crime; or iii a person who is the subject of: • a court order, made by a court in the United Kingdom, or any other order made pursuant to a statutory power, which imposes travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • bail conditions, imposed by a police officer or a court in the United Kingdom, which include travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • an order issued by the European Union or the United Nations which prevents a person travelling or entering a country other than the country in which they hold citizenship; or • a declaration made under section 15 of the Mental Capacity Act 2005. iv A person may be prevented from benefiting from the possession of a passport if the Home Secretary is satisfied that it is in the public interest to do so. This may be the case where: • a person has been repatriated from abroad at public expense and their debt has not yet been repaid. This is because the passport fee supports the provision of consular services for British citizens overseas; or • a person whose past, present or proposed activities, actual or suspected, are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. There may be circumstances in which the application of legislative powers is not appropriate to the individual applicant but there is a need to restrict the ability of a person to travel abroad. The application of discretion by the Home Secretary will primarily focus on preventing overseas travel. There may be cases in which the Home Secretary believes that the past, present or proposed activities (actual or suspected) of the applicant or passport holder should prevent their enjoyment of a passport facility whether overseas travel was or was not a critical factor.”
Passports are issued when the Home Secretary is satisfied as to: i the identity of an applicant; and ii the British nationality of applicants, in accordance with relevant nationality legislation; and • a court order, made by a court in the United Kingdom, or any other order made pursuant to a statutory power, which imposes travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • bail conditions, imposed by a police officer or a court in the United Kingdom, which include travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • an order issued by the European Union or the United Nations which prevents a person travelling or entering a country other than the country in which they hold citizenship; or • a declaration made under section 15 of the Mental Capacity Act 2005. • a person has been repatriated from abroad at public expense and their debt has not yet been repaid. This is because the passport fee supports the provision of consular services for British citizens overseas; or • a person whose past, present or proposed activities, actual or suspected, are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest.

ii the British nationality of applicants, in accordance with relevant nationality legislation; and

[34]Before a passport is issued, the Defendant has to carry out checks on the applicant and clearly a passport may be refused because the applicant’s British citizenship is not recognised or the applicant’s identity is in doubt.[35]The burden is on the applicant to establish his entitlement to a passport and the standard of proof is the civil standard of the balance of probabilities: Begum (Rangis) v Secretary of State for the Home Department [2014] EWHC 2968 (Admin), per HH Judge David Cooke, sitting as a Deputy Judge of the High Court, at [24]; R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin), per Burnett J., at [17].[36]I cannot accept the Claimant’s primary submission that he still has a valid passport which cannot be withdrawn and must be renewed. The Claimant’s passport expired on 29 March 2011, so it was no longer valid when the Defendant refused to renew it. As it had expired, it did not have to be withdrawn.[37]In my judgment, it is a legitimate exercise of the Defendant’s discretion to issue passports for a limited duration (in this case ten years), and to require regular renewal. Renewal applications have to be supported by the required proof of identity and citizenship. This policy enables HMPO to make periodic security checks, for example, that the passport holder is still alive; that his passport has not been stolen; and that he continues to be eligible. Indeed, the Claimant did not challenge the validity of this policy.[38]In my judgment, when considering a renewal application, the Defendant ought to exercise her discretion in accordance with the written ministerial statement, which reflects her policy and usual practice, and the cardinal public law principles of rationality, consistency and fairness. The authorities have established that the Defendant must show cogent reasons for refusal: i) “having issued one passport, the Defendant would have to show substantial, well-founded and cogent reasons for not renewing it”, per Edis J. in R (Rahman) v Secretary of State for the Home Department [2015] EWHC 1146 (Admin), at [27]. ii) “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 public 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.” per Burnett J. in R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin), at [23].[39]The Defendant explained that the decision letter was the letter of 7 December 2013, which is set out at paragraph 20 above. The delay in issuing a decision letter was explained by the fact that HMPO decided to await the outcome of the criminal investigation before issuing its decision. The letter of 16 December 2014 (set out in paragraph 2 above), which was identified as the decision letter in the claim form, was the Defendant’s response to the Claimant’s pre-action protocol letter.[40]In my judgment, on the unusual facts in this case, HMPO took too narrow a view of its obligations when it said, in its letter of 7 December 2013, that HMPO was “duty bound only to proceed on the basis of information supplied by the Office of National Statistics (ONS) who are responsible for the recording of all births, deaths and marriages in the United Kingdom”. Other information was also relevant and ought to have been considered.[41]The BHC was in possession of the same birth and death certificates for Samuel Nathaniel Easy in 2001. However, after conducting an investigation, the BHC was satisfied that the Claimant was entitled to be issued with a British passport in the identity he claimed. In my judgment, when deciding whether or not to renew the passport, the HMPO ought to have made more extensive enquiries of the BHC to find out the basis upon which the passport was issued in 2001.[42]The Claimant and the Claimant’s mother, Juliette Jenkins, were interviewed after receipt of the death certificate, and so must presumably have been asked about it. The interview notes are only summaries and make no reference to it. Mrs Jenkins told the BHC that she had three children, but the notes do not give details of her other children. One possible explanation raised by the Claimant is that the BHC was satisfied that he was the child of Juliette Jenkins, and a different child of hers died in the fire in 1977. Another possibility canvassed in court was that the BHC concluded at the time that the death certificate was inaccurate.[43]According to counsel for the Defendant, HMPO simply did not know why the BHC issued the passport in 2001, despite having seen the death certificate. Counsel’s submission that there may have been a material change of policy between then and now which led the BHC to a different conclusion was un-particularised and unsupported by the evidence. The basis of HMPO’s statement that the passport was issued “erroneously” (letter of 7 December 2013) was just the existence of the death certificate, as confirmed by the evidence from the Coroner’s court obtained by HMPO in 2011. The letter of 16 December 2014 referred to the letter being issued on the basis of “false information”, although this phrase does not appear in the earlier decision letter. Counsel for the Defendant explained that this was intended to be a reference to the information provided by the Claimant as to his identity, in so far as it conflicted with the information in the death certificate. HMPO could not say whether this “false information” was given by mistake or dishonestly. HMPO did not know whether the BHC considered that the Claimant was in any event entitled to British citizenship as another child of Juliette Jenkins and E.A. Easy, even if he was not the person identified in the birth and death certificates. HMPO’s view was that this was a matter for the Claimant to establish as the burden of proof rested upon him to prove his identity.[44]It appears from the witness statement on behalf of the Defendant, Ms Janice Heywood, Executive Officer in HMPO, that HMPO obtained copies of the documents in the BHC files from 2001. However, I was informed by counsel for the Defendant, on instructions, that no further enquiries were made of the staff at the BHC to ascertain why the passport was issued, despite the existence of the death certificate. The passport had only been issued ten and a half years before the renewal application in September 2011, and so there would have been a reasonable chance of tracing someone who was involved in the decision-making process. The letters from the BHC asking for birth and death certificates were sent by someone called Ms Ruth McMurty. Even if she was not the interviewer or decision-maker, she may have known who was.[45]The Defendant has not disclosed the BHC file in these proceedings. Fortunately, the court has been able to see those documents from the file which were disclosed to the Claimant by the Crown Prosecution Service. However, there may be other documents, such as internal memos or forms which disclose more information and the names of staff dealing with the application. Ms Heywood did not attend court, as she was on leave, and no one else from HMPO was available to attend court with the file.[46]In my view, the investigation and decision by the BHC was of particular importance in this case because the Claimant’s mother, Mrs Jenkins, was no longer alive. The Claimant’s father and grandparents were also dead. It was too late to carry out DNA tests on any of them. Plainly the Claimant could not be expected to have any recollection of events surrounding his birth or being taken to Jamaica to live with his grandparents in 1976. It was much easier for him to prove his identity and parentage in 2001 than in 2011.[47]In my judgment, since the BHC had already conducted an investigation and issued a passport to the Claimant, in the interests of fairness and consistency the HMPO was required to accord considerable weight to the earlier decision of the BHC and only depart from it for “substantial, well-founded and cogent reasons”. The earlier decision could not be simply ignored or dismissed out of hand, as inexplicable. It had to be thoroughly investigated by HMPO, otherwise how could they be satisfied that the BHC’s decision was indeed erroneous, and ought to be departed from. I consider that HMPO’s decision-making has fallen short of these required standards.[48]I also consider that HMPO ought to have asked the Crown Prosecution Service for the further information (birth certificates etc) which led the prosecution to offer no evidence on the charges against the Claimant for falsely procuring a passport. After all, this prosecution was prompted by HMPO’s concerns about the validity of the Claimant’s passport following his renewal application in 2011. HMPO did not apply to the Crown Prosecution Service for disclosure of the material in its possession before making its decision. It appears from Ms Heywood’s statement that the evidence gathered in the criminal proceedings and the transcript of the hearing were not taken into account by HMPO when it made its decision. This was confirmed by counsel for the Defendant at the hearing.[49]The day before the hearing, in response to a query from me, the Defendant’s solicitors disclosed that HMPO held a passport history for a second Samuel Nathaniel Easy who was born some 18 months after the first Samuel Nathaniel Easy, on 23 June 1977. He applied for a passport in 1991, declaring his mother was J.M. Jenkins (Easy) – which appears to be the same name as Juliette Marcia Jenkins/Easy. His passport was issued in 1991 and he has since been issued with two further passports. HMPO say “his identity does not appear in doubt”. HMPO have not sought to obtain his birth certificate. It seems to me quite possible that this was one of the individuals referred to in the Crown Court transcript. Counsel for the Defendant confirmed that the information relating to this individual was not taken into account when the decision not to renew was made, nor was it disclosed to the Claimant.[50]In my judgment, HMPO was also required to consider this further information when deciding whether or not there were “substantial, well-founded and cogent reasons” for not renewing the passport previously issued, so as to give effect to the public law principles of consistency and fairness, and the duty to take into account all relevant material when making a decision. In so deciding, I am not seeking to lay down any general rule about what HMPO ought to take into account in its decision-making process. I base my conclusion solely on the unusual facts and circumstances of this case.[51]As a British citizen, the Claimant was also a citizen of the EU. Rottmann v Freistaat Bayern Case C135/08 [2010] QB 761, at[41-56] and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, at [98], [108-110], are authority for the proposition that any decision by an EU member state to remove citizenship has to observe the principles of proportionality. This is acknowledged in the 2013 written ministerial statement which states that “a decision to refuse or withdraw a passport must be necessary and proportionate”. Cases such as Rottmann and Pham were concerned with discretionary decisions on naturalisation and withdrawal of citizenship. It is less clear how the principle of proportionality ought to be applied in a case where the applicant is claiming citizenship as of right by descent. However, in the light of the case law and the Defendant’s express reference to the principle of proportionality, I am satisfied that a decision-maker must at least consider whether the principle applies, and if appropriate, apply it. In this case, HMPO did not take the principle of proportionality into account when it decided not to renew the Claimant’s passport, which was an error in its decision-making process.[52]I accept the Claimant’s submission that Article 8 ECHR is potentially engaged by a refusal to renew his passport, because of its effect on his private life. However, if the refusal is for a legitimate reason and is proportionate, it will usually be justified. The Defendant did not appear to take Article 8 into account when making her decision. This will be a further matter to be taken into account by the Defendant upon re-consideration of the Claimant’s application to renew.[53]As to the passports of the Claimant’s children, the Claimant has said in his evidence that he has had about 30 children by different mothers, and does not live with any of them. Only two children with British passports were named, and there was no evidence as to whether they had British mothers, or whether their British citizenship would indeed be lost if the Claimant lost his citizenship. Their entitlement to a passport and to citizenship was not in issue in these proceedings, and I cannot comment upon it. However, I accept that the potential impact upon the Claimant’s children would be a factor to consider under Article 8, together with the best interests of the children under section 55 of the Borders, Citizenship and Immigration Act 2009. Of course, the Claimant would have to provide the Defendant with full family details of his children to enable her to consider their position.[54]I am not persuaded that the Claimant had a substantive legitimate expectation that his passport would be renewed. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] AC 453, Lord Hoffmann said at [60]:
“It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’: see Bingham LJ in R v Inland Revenue Comrs, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569.”
[55]I accept that the act of issuing the Claimant with a British passport in the identity of Samuel Nathaniel Easy clearly signalled that in March 2001 the Defendant accepted both his claimed identity and his British citizenship. However, the issue of the passport was not accompanied by any promise or statement by the Defendant that the Claimant would forever more be entitled to a British passport. Indeed, given the Defendant’s policy on the issue of passports, I do not consider that the Defendant would ever be willing to make any such promise or representation. Although I have not been provided with full ministerial statements and guidance to applicants from that period, The following ministerial statement, by way of answer to a parliamentary question, was applicable at that time. Passports: Grounds for Withdrawal Lord Lester of Herne Hill: Whether British citizens are entitled to expect that passport facilities will be withdrawn only in clearly defined circumstances which have been reported to Parliament; and, if so, what are the current circumstances in which the Government would exercise the right to withdraw passport facilities. Lord Williams of Mostyn: The circumstances in which a British passport would be withdrawn have been reported to Parliament on a number of occasions, the last being 7 February 1995, and have not changed. Withdrawal of a passport would be considered: 1. if it came to the Passport Agency's attention on replacement that it had been issued incorrectly; and 2. on the same basis as the refusal of an application…” Lord Lester of Herne Hill: Whether they will consider giving the present arrangements for issuing and withdrawing passports a statutory basis. Lord Williams of Mostyn: The Government have no plans to change the present system under which passports are issued in the United Kingdom at the discretion of my right honourable friend the Home Secretary, and by my right honourable friend the Foreign Secretary in overseas posts, both exercising the Royal Prerogative.In practice, refusal and withdrawal of passport facilities to United Kingdom nationals is confined to certain well defined categories, of which Parliament has been informed from time to time. Although the issue of passports is a discretionary power under the Royal Prerogative, it is constrained as any statutory power might be, and the exercise of the discretion may be reviewed by the courts. The system has worked well and it has been generally accepted, under successive Administrations, that the exercise of the Royal Prerogative has not been abused. (Hansard HL Deb 30 Jul 1998 vol 592 col 237-8WA) it is clear that the passport was only issued for a ten year period; the Defendant did not operate a policy of automatic renewals; and at all times the Defendant reserved the right to withdraw a passport or to refuse to renew or re-issue a passport. If the issue of a passport did give rise to any legitimate expectation, it could amount to no more than that the Defendant would apply her usual policy and practice in relation to renewal and withdrawal.[56]The Claimant also relied upon the case of Gowa 1984 WL 988599, in which a government official in Tanganyika erroneously advised the applicant in writing that he did not need to register his children as Citizens of the United Kingdom and Colonies under the British Nationality Act 1948, since they were already British citizens. This advice was incorrect, and the children were later denied citizenship. A majority of the Court of Appeal held that the Secretary of State was estopped from denying the children the status of British citizen. Stephenson L.J. said, at p.10:
“I can see no requirement of public policy that the Secretary of State should not be precluded from denying what … the Government of Tanganyika wrote in 1952 and should not in consequence be bound by it. Indeed, it is in the public interest that the servants of the Crown should speak with one voice and speak the truth and that when responsible officers make mistakes which mislead members of the public and injure them the courts should redress the injury, if that is possible without doing harm to others …”
[57]The jurisprudence in this area has evolved since 1984, and today the Gowa case would be decided by application of the public law concept of legitimate expectation, not the private law concept of estoppel: see e.g. R (Repotech) v East Sussex CC [2002] UKHL 8, [2003] 1 WLR 348, per Lord Hoffmann at [33-35]; South Bucks DC v Flanagan [2002] EWCA Civ 690, [2002] 1 WLR 2601, per Keene L.J. at [16]. In Gowa a clear, unambiguous and unqualified representation was made to the applicant that his children would be entitled to British citizenship, without limit of time. In this case, no such clear, unambiguous and unqualified representation was made to the Claimant, as I have already found.[58]Finally, the Claimant invited me to make a declaration that he is a British citizen, on the basis that he is indeed Samuel Nathaniel Easy who was born in London on 27 December 1975, the son of Juliette Marcia Jenkins, born in Birmingham and holder of a British passport (as recorded in the birth certificate relied upon by the Claimant). In support of the submission that the court has power to make such a declaration in an appropriate case, he relies upon the analysis in R (Rahman) v SSHD [2015] EWHC 1146 (Admin), per Edis J. at [35] to [41]. However, the facts of this case are very different to those in Rahman. I am unable to make the declaration which the Claimant seeks because there are still so many unanswered questions about his identity.

Conclusion

[59]For the reasons set out above, the Defendant’s decision to refuse to renew the Claimant’s passport, made on 7 December 2013, and re-stated on 16 December 2014, is quashed. The Defendant must now re-consider the Claimant’s application in accordance with the terms of my judgment.

Cited in 3 later judgments