Salih, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2539 (Admin)

Case No CO/227/2018[2018] EWHC 2539 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 October 2018
Before
ANDREW HENSHAW QC(sitting as a Judge of the High Court)
Between
THE QUEENClaimanton the Application ofClaimantISMATH BATCHA MOHAMED SALIHClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Pierre Georget (instructed by Sahab Solicitors) for ClaimantZane Malik (instructed by Government Legal Department) for DefendantHearing Hearing date: 17 July 2018
JudgmentMr Andrew Henshaw QC:(A) INTRODUCTION 1 (B) ISSUES AND MAIN APPLICABLE PRINCIPLES 6 (C) EVIDENCE 17 (1) Documents tendered by the Claimant 17 (2) Authenticity and reliability of the documents 23 (3) The Claimant’s interview in January 2017 31 (4) Discussion 17 (D) CONCLUSION 56
[1]The Claimant seeks judicial review of the Defendant’s decision of 5 October 2017. By that decision, made by Her Majesty’s Passport Office, the Defendant declined to issue the Claimant with a British passport. The essential issue in this case is whether or not the Claimant is a British Overseas citizen.[2]The Claimant is a citizen of India and holds an Indian passport. He claims to be the son of late Mohamed Salih (“MS”) and Amena Beevi (“AB”). The Claimant says he was born on 4 January 1958 to MS and AB, in the municipality of Kumbakonam in the Tamil Nadu State of India; that MS was a citizen of the United Kingdom and Colonies (“CUKC”); and that the Claimant himself is therefore a British Overseas citizen.[3]The Claimant has made several unsuccessful applications for a British passport, in 2005, 2008, 2011 and 2012. His most recent application led to a previous judicial review claim, which was resolved by way of a consent order on 30 October 2013, which recorded the Defendant as having agreed to reconsider the Claimant’s 2012 application for a British Overseas passport and return a decision, to verify the Claimant’s father’s birth certificate, and for the British High Commission in New Delhi to interview the Claimant further on 11 and 12 September 2013.[4]It does not appear that those interviews proceeded at the time, but subsequently the Claimant was interviewed on 19 January 2017. On 5 October 2017 the Defendant refused to issue him with a British passport became she was not satisfied as to his identity, entitlement and claimed relationship with a British citizen. The Defendant maintained that decision on 1 December 2017 in response to the Claimant’s pre-action protocol letter.[5]This judicial review claim was issued on 17 January 2018. The Defendant filed an acknowledgment of service on 13 February 2018. Andrew Thomas QC, sitting as a Deputy High Court Judge, considered the matter on the papers and granted permission to apply for judicial review on 9 March 2018.

(B) ISSUES AND MAIN APPLICABLE PRINCIPLES

[6]It is common ground that in order to establish that he is a British Overseas citizen, the Claimant must show that: i) he is the son of late MS and AB; ii) MS was a CUKC; iii) he was born after MS became a CUKC; and iv) MS and AB were married.[7]The above list follows from a combination of sections 5(1), 6(1), 8, 9 and 32 of the British Nationality Act 1948 (as enacted) relating to citizenship of the United Kingdom and Colonies. On 1 January 1983, the commencement date of the British Nationality Act 1981, all citizens of the United Kingdom and Colonies who did not automatically become British citizens (section 11) or citizens of British Dependent Territories (section 23) (later renamed “British overseas territories”) acquired British Overseas citizenship (section 26).[8]British Overseas citizenship is a residual category of citizenship arising from the reclassifications in the 1981 Act. The Claimant made the point (and the Defendant did not dispute) that it would not confer on the Claimant the right of abode in the United Kingdom (or any country), and is not transmissible except in exceptional circumstances or where an individual would otherwise be stateless. The Claimant pointed out that it was held in Teh v SSHD [2018] EWHC 1586 (Admin) that a person with only British Overseas citizenship and no right of admission to any other country will be considered stateless for the purpose of paragraph 403(c) of the Immigration Rules.[9]Section 3(8) of the Immigration Act 1971 concerns the burden of proof and provides that: “When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is”.[10]Accordingly, the Claimant has to prove that he is a British Overseas citizen.[11]The Court of Appeal in R (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 (Keene LJ, with whom May LJ and Arden LJ agreed) stated:
“[34] If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship …. In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it.”
[12]In R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin), Eder J said:
“[14] … 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 … I have to consider … the evidence before me and reach a conclusion on the balance of probability on those main issues, which is whether the claimant is a British citizen and whether he is therefore entitled to a new passport on that basis.”
[13]It was therefore common ground that it is for the court to decide for itself, applying the burden of proof set out above, whether or not the Claimant is a British Overseas citizen as he claims.[14]The Defendant also made reference in his skeleton argument to the statement of Burnett J (as he then was) in R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin) that: “[17] A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. Parliament has chosen not to accord to someone in the Claimant's position a right of appeal to any court or tribunal. Before issuing a British passport to an individual the Secretary of State must be satisfied that the person concerned is entitled to it. It is common ground that it is for an applicant for a British passport to satisfy the Secretary of State of his entitlement. …” and argued that it was plainly open to the Secretary of State to conclude that the Claimant has no entitlement to a British passport. However, as noted above, it was common ground that the underlying question of the Claimant’s status is a question of fact/law for the court to decide rather than one requiring a traditional public law approach.[15]The defendant’s general approach to the standard of proof in nationality applications is indicated in “British citizenship: automatic acquisition” at p5:
“Standard of proof The Immigration Appeal Tribunal in Kessori Khatun (4272) held that "the standard of proof applicable to the right of abode, whether that right be dependent on citizenship or relationship, is that of the normal balance of probabilities". This means that a right of abode or claim to citizenship is established if the evidence that it exists outweighs, however slightly, the evidence that it does not. Any requirement that applicants or claimants produce ‘conclusive’ evidence of their status, or establish their position ‘beyond doubt’, sets the standard too high and risks challenge in the courts. You must therefore avoid using such words and phrases.”
[16]The documents expected to establish a claim to British Overseas citizenship are set out in “British overseas citizens, v1.0”, published on 14 July 2017, at p6: “Evidence to establish a claim The following documents may be used to demonstrate that a person born before 1 January 1983 is a British overseas citizen:• a passport, issued on or after 1 January 1983, describing the holder as a British overseas citizen or a passport, issued before 1 January 1983, describing the holder as a citizen of the UK and Colonies• the relevant documents related to the person’s, their parents’, grandparents’, spouse’s birth, adoption, marriage, death, registration or naturalisation which establish that the person did not, on 1 January 1983, become either or both a British citizen or a British dependent territories citizen You must also take into account any evidence already held by the Home Office. In the absence of any of the documents listed above you may consider secondary forms of evidence, providing that these can be verified and demonstrate the relevant requirements.

(C) EVIDENCE (1) Documents tendered by the Claimant

[17]The Claimant’s case was essentially founded on documentary evidence, including in particular what are claimed to be the following key documents: i) A copy of MS’s CUKC registration certificate of 3 April 1956 certified by an official at the British High Commission in Kuala Lumpur (the original having apparently been misplaced). ii) The three (original) passports issued to MS describing him as a citizen of the United Kingdom and Colonies. iii) The Indian passport issued to the claimant. iv) MS’s and AB’s marriage registration certificate issued on 24 April 2012 by the Mohaideen Andavar Jumma Masjid (Mosque). v) MS’s death certificate issued on 25 January 2006 by the Kumbakonam District Registrar’s Office. vi) The claimant’s birth certificate issued on 5 October 2007 by the Government of Tamil Nadu Kumbakonam Municipality, which gives his name as “M. S. Ismath Batcha”, his date of birth as 4 January 1958, and his parents’ names as Mohamed Salih and Ameena Beevi of East Street, Sholapuram (an address which matches that given on document (iv). The certificate is headed with the details of the Kumbakonam Municipality.[18]Documents (i)-(iii) are or purport to be contemporaneous with the events to which they relate. Documents (iv)-(vi) are or purport to post-date the relevant events by many years.[19]In relation to documents (i)-(iii), the Claimant makes the point that although no clear concession has been made to date, nothing amounting even to a suspicion has been put forward that any of them is not genuine. He says these documents show that: i) MS was a citizen of the United Kingdom and Colonies from 3 April 1956 onwards, including on 4 January 1958. ii) MS’s marriage to AB is corroborated by the registration certificate dated 3 April 1956. iii) MS was in India, where AB lived, around the time the claimant would have been conceived (see the stamp issued at Madras on 14 April 1957, along with a further stamp indicating that MS left India again on 26 May 1957). iv) The Indian government is satisfied that the claimant was born on 1 January 1958 in Kumbakonam and is the son of MS and AB.[20]The Claimant argues that: i) Although no clear assertion has been made that they are not genuine documents, the implication is plainly that the defendant has doubts in respect of (iv), (v) and (vi). ii) The reason for those doubts is stated to be the same in respect of all three documents: contemporaneity. However, no proper basis has been put forward on which to doubt the authenticity of the documents, particularly because the documents themselves do not even purport to be contemporaneous. a) The birth certificate issued on 4 October 2007 by the Kumbakonam municipal council states, “the following information has been taken from the original record of Birth which is in the register for (Local Area) Kumbakonam municipality…”. b) The marriage certificate issued on 24 April 2012 by the Mohaideen Andavar Jumma Masjid (Mosque) states that the marriage was registered “at the time of marriage”. c) The death certificate was issued on 25 January 2006. It states that the death was officially registered at the Kumbakonam District Registrar’s Office on 12 January 2006 but that the information was taken from the “Original Record of Death which is 94 Koranathikaruppur in the Register of 1977”. iii) The Defendant’s criticisms of documents (iv), (v) and (vi) do not stand up to scrutiny, and there is no good reason to doubt the authenticity of the documents. They appear on their face to be genuine documents obtained from the bodies stated. Those bodies are known and in existence in the relevant areas of Tamil Nadu State. The information in these documents appears to correspond in all material details to the information in documents (iv), (v) and (vi). It also corresponds to a large degree with a number of “unofficial” documents produced by the claimant. The documents which are not contemporaneous do not purport to be so.[21]The Claimant adds that, whilst the Defendant does not have a duty to check the documents, it has had the opportunity to do so on at least five occasions. He submits that if all six documents are genuine, then he has proven his case.[22]At the hearing, counsel for the Claimant handed up what purport to be the originals of documents (ii), (iv), (v) and (vi), the original certified copy comprising document (i), and a copy of document (iii) (the Claimant’s own passport). The Claimant submitted (though no specific evidence was provided) that the Claimant was not permitted to allow his passport to be sent out of India unaccompanied by the Claimant himself. (2) Authenticity and reliability of the documents[23]The Claimant did not provide a witness statement or provide oral evidence at the hearing. It was suggested in the Claimant’s skeleton argument that a witness statement would be provided addressing the notes of interview referred to below, but counsel for the Claimant indicated at the hearing that this had turned out not to be possible.[24]Whilst not taking a point on the strict admissibility in evidence of the six key documents produced by the Claimant, the Defendant submitted that in the absence of a witness statement from the Claimant (or anyone else), or of the opportunity to cross-examine him, the Claimant could not show the documents were reliable.[25]The documents relied on by the Claimant were referred to as being original documents in the Claimant’s Claim Form, which was verified by a statement of truth signed by the Claimant’s solicitor. However, that is of limited assistance to the Claimant given that CPR 32.6 provides: “Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise. (2) At hearings other than the trial, a party may [...] rely on the matters set out in–(a) his statement of case; or(b) his application notice, if the statement of case or application notice is verified by a statement of truth.” (my emphasis)[26]On the other hand, the Claimant may have taken the view that he had explained in interview how the documents were obtained, and that the authenticity of potentially the most important documents on which he relies was not disputed. A letter dated 1 December 2017 to the Claimant’s solicitors from HM Passport Office (Litigation Team), in response to a pre-action letter dated 21 November 2017, included the following points: [i] “… the decision to refuse to issue a passport to [the Claimant] was not made based on the documentary evidence alone, nor was it based solely on the information provided by [the Claimant] in his interview. The documentary evidence, the responses to the questions put to [the Claimant] at interview, the results of the verification checks and all previous applications were considered together and a decision was reached based on a balance of probabilities.” [ii] “The Consent Order also requested that HM Passport Office verify the birth and marriage certificates. I should point out that [the Claimant’s] applications were not considered on the basis of the birth and marriage certificates alone, or the fact that they were obtained many years after the event. As I have explained above, all documents were considered in addition to the information received at interview and the verification checks conducted by our overseas colleagues. The certificates had already been verified during the previous application processes and at no point did HM Passport Office state that these documents were not genuine. [iii] “Whilst [the Claimant] may indeed have a possible claim for British nationality, evidence remains outstanding in order for HM Passport Office to be satisfied, on the balance of probability, that a British passport should be issued. As mentioned previously, HM Passport Office has not contended the authenticity of [the Claimant’s] birth certificate and it is therefore unclear why you have raised this as an issue. [iv] You referred to the death certificate of [the Claimant’s] father; again your reasons for this are unclear. [The Claimant] registered his father’s death 29 years after the event after he ([the Claimant]) obtained a copy of his claimed father’s British nationality registration certificate from the Foreign and Commonwealth Office (FCO). There are corrections on the death certificate which are not noted on the translation which render the document unreliable. [v] Having read through the interview summary notes I accept that a discrepancy did occur regarding [the Claimant’s] date of birth. Even so, this does not detract from the main point that in this, and all previous interviews, [the Claimant] has failed to provide an accurate account of his family history and any contemporaneous identity documents whatsoever for the period 1958 to 1996, a total of 38 years. You have mentioned that [the Claimant] previously attended the interview nearly 5 times and he well versed and acquainted with facts of his claim (sic). This may or may not be the case but again I am unsure of the point you are making, even so, after 5 interviews [the Claimant] was still unable to provide a reasonable account of his family history or answer with any accuracy some of the questions put to him.” [my emphases][27]The Defendant in argument drew a distinction between the authenticity of documents and their reliability, highlighting the following statements by the Court of Appeal in MA (Bangladesh) v SSHD [2016] EWCA Civ 175, which concerned the authenticity and reliability of documents in asylum cases:
“21 In Tanveer Ahmed v Secretary of State for the Home Department [2002] UK IAT 00439; [2002] INLR 345 Collins J. (President) delivering the judgment of the Immigration Appeal Tribunal, laid down the following approach in the case of contested documents. The Tribunal noted from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain “forged” documents. Some are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are “genuine” to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Courts and Tribunals need to differentiate between form and content i.e. whether a document is properly issued by the purported author and whether the contents are true. It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind. 22 Referring to Rule 39(2) of the Immigration and Asylum (Procedure) Rules 2000 the Tribunal stated that it is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely. There is no legal justification for an argument that if the Secretary of State alleges that a document relied on by an individual claimant is a forgery and the Secretary of State fails to establish this on the balance of probabilities or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. Such an argument is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is whether the document is one upon which reliance should properly be placed. Collins J. continued “35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is the material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision-maker should look at the evidence as a whole or in the round (which is the same thing). “35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is the material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision-maker should look at the evidence as a whole or in the round (which is the same thing). 36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are costs and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office.” 23 In conclusion he set out the following principles: “(1) In asylum and human rights cases it is for an individual claimant to show the document on which he seeks to reply can be relied on. (2) The decision-maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round. (3) Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the basis of abilities to the higher civil standard does not show that a document is reliable. The decision-maker still needs to apply principles (1) and (2).” (at [38]) These principles have been consistently applied since 2002 by courts and tribunals in a host of decisions.”
[28]The Court of Appeal went on to refer, at §§ 24-30, to subsequent case law including the ECtHR’s decision in Singh v Belgium (33210/11, 2 October 2012) and the Court of Appeal’s decision in PJ (Sri Lanka) v SSHD [2015] 1 WLR 1322, considering the circumstances in which the relevant public authority may have a duty to check the authenticity and reliability of a document. Such circumstances may arise where the document is at the heart of a request for protection and a simple process of inquiry will conclusively resolve its authenticity and reliability. In the present case it was not suggested that the Defendant was under such a duty, though as noted above it does appear that the Defendant has in fact verified certain of the key documents on which the Claimant relies.[29]The Defendant also drew attention to the “Country Information and Guidance India: Background information, including actors of protection, and internal relocation” dated February 2015, which under the heading “Forged and fraudulently obtained documents” states: “2.12.3 Quoting a researcher on Indian criminal justice issues, the Immigration and Refugee Board (IRB) of Canada stated in a report of 5 May 2014: ‘[M]ost identity documents in India can be faked and/or obtained by fraudulent means and can be “custom ordered in most parts of the country”. ‘[F]raudulent medical records, school records and police records are prevalent in India. ‘Political party cards are totally fraudulent. Most parties do not have any documentation of their members and generally do not issue membership cards. Some local units may provide one to their local members but there is little authenticity of these.’ 2.12.4 Transparency International (India) also indicated to the Canadian IRB that fraudulent identity documents are commonly available in India. The IRB added: ‘Media sources report of several scams in which passports were able to be procured with the submission of fake identity documents.’ Although Unique Identity (UID) numbers and ‘Aadhaar’ identity cards rely on relatively advanced technology and biometrics, there have also been some reports in the press of these being fraudulently obtained.” (footnotes omitted) ‘[M]ost identity documents in India can be faked and/or obtained by fraudulent means and can be “custom ordered in most parts of the country”. ‘[F]raudulent medical records, school records and police records are prevalent in India. ‘Political party cards are totally fraudulent. Most parties do not have any documentation of their members and generally do not issue membership cards. Some local units may provide one to their local members but there is little authenticity of these.’[30]The Defendant’s letter of 1 December 2017, quoted in part above, indicated that the Defendant did not dispute the authenticity of the Claimant’s birth certificate or his claimed parents’ marriage certificate (both of which were, unlike the death certificate, key to establishing his claimed citizenship), despite both documents being evidently non-contemporaneous. The letter did not draw a distinction between authenticity and reliability, and did not provide a clear indication that the Defendant (despite having ‘verified’ the documents) did not accept those documents’ reliability, i.e. the accuracy of their contents. In these circumstances it is less surprising than might otherwise be the case that the Claimant did not think it necessary to provide a witness statement in support of the documents’ authenticity and reliability. (3) The Claimant’s interview in January 2017[31]The main focus of the Defendant’s letter of 1 December 2017 was the answers given by the Claimant in interview, to which I now turn.[32]The Defendant contended that the Claimant’s answers in the interview in January 2017 were unsatisfactory in a considerable number of respects, which it is necessary to consider individually as well as in their totality.[33][1] It is said that the Claimant suggested in the interview that his lawyer had given him documents for his application but then retracted that statement on further questioning and said that he merely took advice.[34]The relevant exchanges took place very near the beginning of an interview conducted through a Tamil interpreter, and were as follows:
“Who completed the application form? I filled in the form but advise sought from Advocate; the name of the advocate is SAHABUDEEN HAMID; he lives in the UK. Money paid? So far I have not paid any thing How do you know him? His house is near to my house nearly 8 kms; he lives in Solapuram, I live in Kornatakapur. Has he given you any documents for your application? Yes. What documents? He has not given any documents, I just took advise. What advise you take from him? He suggested only for the documents. Did he arrange any documents? No”
The interviewer does not appear to have asked the Claimant to explain the apparent inconsistency between the fourth and fifth answers quoted above, which may therefore have resulted from an initial misunderstanding. I do not consider it possible to draw any inference from this somewhat confused exchange about the Claimant’s credibility. Money paid? So far I have not paid any thing Did he arrange any documents? No”

Money paid? So far I have not paid any thing

[35][2] The Defendant says there was little clarification in the interview as to who completed the Claimant’s application form. This criticism appears to be based on the same exchanges as I quote above, together with the following further exchange:
“Are you aware of the details given on the form? Yes I am aware. Have you read the form? Yes. You read it on your own or some body narrated it to you? The advocate read the form and narrated to me. Are you able to write English? Yes I am able. Education qualification – I am Xth passed.”
Education qualification – I am Xth passed.”[36]Taking both sets of exchanges together, the upshot is that the Claimant said that he filled in the form himself, and is able to write English, but that the advocate helped him by reading the form and “narrating” it to him. The Claimant did not state that the advocate himself filled in the form.[37][3] The interview took place on 19 January 2017. The Claimant says he was born on 4 January 1958. On that basis, he would when interviewed recently have turned 59. However, when asked for his date of birth he said:
“04/01/1958; I am 58 now”
. That answer might support a case of fabrication on the ground that had the Claimant really just turned 59, he would immediately have known that. Another way of viewing the matter is that (a) it is unsurprising for an older person accidentally to misstate his or her age slightly, and (b) a careful fraudster (though perhaps not a careless one) would not have made such an obvious mistake.[38][4] The Claimant was asked where he lived, and said Kornatakapur, and stated that it was 2-3 km from where he was born. He was not able to tell the name of the authority with which his birth was registered, replying “I do not know, but it is with municipality” and that the birth certificate “was issued by the local municipality”. It is arguable that had the Claimant himself obtained the birth certificate from the local municipality (as opposed to, for example, purchasing it), then he would remember its name, though it is evident from an earlier answer that the Claimant did know his claimed place of birth: “Place and country of birth? Kumbakonam”.[39][5] The Defendant said the Claimant was not able to offer any explanation as to how he obtained a copy of his birth registration. This section of the interview is transcribed as follows:
“How did you get your BC? It was issued by the local municipality. … When did you get copy? I do not know. Certificate says 2007 issue? May be If you got a copy in 2007, what documents provided? I gave my school documents and date of birth.”

Certificate says 2007 issue? May be

[40]It appears the Claimant was saying he obtained the birth certificate by providing his school documents and date of birth to the local municipality, and so the gist of the Defendant’s criticism is unclear.[41][6] The exchanges quoted above also indicate that the Claimant was unable to say, with any certainty, when the birth certificate was issued, and used the phrase “may be”. This might be consistent with the Claimant having purchased the documents he now relies on, rather than having obtained them himself, though it could also simply indicate the Claimant having forgotten in which year he obtained them.[42][7] The Defendant says the Claimant was not able to explain what documents he had used to obtain the birth certificate. However, the exchanges quoted above indicate that the Claimant said he had provided his “school documents” and was not asked to elaborate.[43][8] The exchanges quoted above indicate that the Claimant was not sure what date of birth was recorded in his school records. It is difficult to know what to make of this response. Since the Claimant said he used his school records to get his birth certificate, it might have seemed obvious that the date was 4 January 1958, i.e. the date given on the birth certificate which was then provided to him. If the Claimant had not really obtained the birth certificate himself, then that would still have been the obvious answer. It is possible to speculate that the Claimant expressed doubt because(a) he had not really obtained the birth certificate himself and(b) he feared that the interviewer/the Defendant might have contradictory information about the date of birth shown in ‘his’ school records: but that would be speculation. It is relevant to add that, as the Defendant pointed out, the Claimant has not put the school documents into evidence.[44][9] The Claimant gave contradictory answers about whether this was his first application for a British passport:
“Is this the first time you are applying for a British passport? Yes it is. Have you applied before? No. Has your application ever been refused? I applied in 2005, 3 times it got rejected. What was the reason for refusal? Documents were not complete – family photos were not there. Have you submitted this time? No Have you ever been interviewed? Two times – in 2006 and 2014”
Have you submitted this time? No Have you ever been interviewed? Two times – in 2006 and 2014”

Have you submitted this time? No

[45]This part of the interview is also somewhat puzzling. Whether or not the Claimant was who he claimed to be, he would surely know that the Defendant would have information about the previous applications he had undoubtedly made. The abrupt change in the Claimant’s answers might suggest that his first instinct was to lie, until he quickly realised that the lie would be obvious, though it is not obvious why the Claimant would take this course if he were pursuing a long-standing plan to obtain a passport on the basis of an assumed identity.[46]The Defendant also makes the point that the answers quoted above indicate from the feedback to the Claimant’s previous application that (further) photographs were expected, and yet once again the Claimant did not provide them. That may be regarded as a point against the Claimant. It is possible that photographs from the places and times in question had not been taken or retained, though there is no witness statement or other evidence from the Claimant to that effect.[47][10] The Claimant was not able to explain how his claimed father had become a British citizen:
“How was your father British? I do not know. … When he was born what nationality he had? I do not know.”
However, since the means by which MS became a British citizen is a somewhat complex matter of nationality law, I do not think it appropriate to draw any adverse inference from these answers.[48][11] The Defendant said the Claimant was not able to confirm his father’s nationality at the time of his birth. This relates to the same answers as I refer to in the preceding paragraph.[49][12] It is said that the Claimant was not able to provide any meaningful explanation as to his claimed father’s life. The relevant part of the interview was transcribed as follows:
“What was the reason of father’s death? He died in India, he died due to old age and not well. My father previously lived in Malaysia. When did he travel to Malaysia? I do not know. His occupation? Working shops How long he lived in Malaysia? He went before 1948, so I do not know actually. When did he return to India? As per his passport he returned in 1956. Then after 1961, he again went to Malaysia and then in 1970s he came back to India.”

His occupation? Working shops

[50]On the Claimant’s case, his father went to work in Malaysia in 1948, ten years before the Claimant’s claimed birth in 1958, returned to India in 1961 when the Claimant was three years old, returned to India in the 1970s (when the Claimant was a teenager), and died in 1977 when the Claimant was 19 years old. It is arguable that, at the age of 19, the Claimant would have known the cause of his father’s death and to have recalled it even when interviewed forty years later.[51][13] The interview transcript suggests that the Claimant was not able to recall when he had obtained the marriage certificate of his claimed parents:
“Do you have a marriage certificate for your parents? Yes How did you get it? It was issued by a mosque. When did you get it and who gave you? It was given by the local panchayat. I do not know when. Then how did you prove that your parents got married? I did not have to prove it, I just gave my father’s name and they gave me the marriage certificate When was this time? In 2005”
When was this time? In 2005”[52]In fact, the marriage certificate the Claimant has provided was issued not in 2005 but in 2012. This apparent error is also somewhat puzzling. The Claimant made previous unsuccessful applications for a passport in 2005, 2008 and 2011: no suggestion was made that those applications were made by anyone other than the Claimant. Thus, even if he were applying under an assumed identity, the Claimant would have known that as at the date of those prior applications he did not have the marriage certificate: he had obtained it (whether legitimately or otherwise) only in time for his most recent application initiated in 2012. As a result, whilst the Claimant’s inaccurate answers on this point may indicate a poor memory and/or poor attention to the details of the documents he has put forward, I find it difficult to draw from then an inference undermining the Claimant’s claim to be the son of MS and AB.[53][14] The Claimant was unable to say whether his father had ever been to the United Kingdom. However, since (at least on the Claimant’s case) his father was abroad for a large part of his life, it is difficult to draw any clear inference from this point.[54][15] The Claimant in interview said he had been told about the possibility of applying for a British passport by “[m]y relatives in Malaysia”, and provided details of his two brothers who live in India. However, the Claimant has provided no evidence from any of these relatives in support of his application, a fact which the Defendant submits is surprising.[55]Separately, the Defendant makes the point that the Claimant’s electoral identity card stated that he was 45 years old as at 1 January 2006 (which would place his birth date in 1960) and yet he claims to have to have born in 1958. Both the Claimant’s claimed passport and his claimed birth certificate give his date of birth as 4 January 1958, which would mean that on 1 January 2006 he was about to turn 48. Had the Claimant been 45 years old on 1 January 2006, then at the date of his interview on 19 January 2017 he would have been either 56 or 57, so his answer in interview that he was 58 would still have been incorrect. Overall, I do not consider the identity document likely to be sufficiently reliable to cast doubt on the other documents provided (or on the Claimant’s claim to be the person to whom they refer). (4) Discussion[56]I have not found it easy to decide whether the Claimant has sufficiently established his case to the required standard of balance of probabilities. I see considerable force in the Defendant’s point that the Claimant’s case is undermined by the absence of a witness statement from either the Claimant himself or any of the brothers or other relatives to whom he has made reference in interview. As a result, he has not himself formally verified the documents in evidence; the Defendant has not had the opportunity to cross-examine him; he has not taken the opportunity (as it appeared he would) to explain some of the arguably unsatisfactory answers he gave in interview; and there is no third party witness evidence in support of his case.[57]At the same time, I bear in mind that: i) as noted earlier, the Defendant’s letter of 1 December 2017 indicated that the Defendant “verified” both the Claimant’s birth certificate and the marriage certificate of his alleged parents, both of which were and are critical documents in relation to his claim; ii) the Defendant’s guidance quoted in § 16 above arguably places the primacy focus on documentation as the means by which citizenship should be proven; and iii) the Claimant has submitted to interview by the Defendant’s representatives on several occasions, and these have given the Defendant the opportunity to question the Claimant in detail about his applications and the documents on which he relies. In particular, the record of the interview on 19 January 2017 attached to the Defendant’s Detailed Grounds, though not formally evidenced by a statement of truth, was relied on by the Defendant and no point was taken by either party as to its accuracy. In the course of that interview the Claimant answered questions about the circumstances in which he obtained his own Indian passport, his father’s documents, his birth certificate, his claimed parents’ marriage certificate, and his documents generally.[58]The birth and marriage certificates, which the Defendant has verified, prima facie support the Claimant’s case as to his parentage, his date of birth and his parents’ marriage, i.e. facts (i), (iii) and (iv) referred to in § 6 above.[59]The passports purporting to belong to the Claimant’s alleged father on their face support the Claimant’s case as to his claimed father’s citizenship, i.e. fact (ii) referred to in § 6 above. In connection with these passports, it may be pertinent to note that if the Claimant’s case were false then it would appear to follow that either: i) these passports are genuine and reliable, but do not relate to the Claimant’s father, despite the fact that the name and visa stamp dates (relating to travel to and from India) which they bear are consistent with the Claimant’s case; or ii) the passports are false, in the sense either of being forged or inaccurate; or iii) the Claimant is not in fact Mohamed Salih Ismath Batcha at all, and has misappropriated that person’s identity.[60]Though (i) is theoretically possible, it would seem a striking coincidence that the Claimant had managed to procure genuine passports for a real person (the Claimant’s claimed father) whose name (Mohamed Salih) and visa stamp dates both matched the Claimant’s own name (Mohamed Salih Ismath Batcha) and alleged date of birth/conception.[61]As to (iii), this is not a possibility that I understand to have been suggested. It would mean that the Claimant’s solicitors were in breach of their implied warranty of their authority to act for the named claimant. It would also mean that the various informal documents in the bundle bearing the Claimant’s alleged name (including a driving licences, income tax ID card, bank pass book, insurance policy and telephone bill) have also been forged or misappropriated, though I would accept that that too is possible.[62]Overall, it seems more likely that if the Claimant’s case were untrue, then that would probably entail that not only the Claimant’s own purported passport and birth certificate but also the purported MS passports are fake. I do not understand the Defendant to have advanced any positive suggestion that the MS passports may be forged or inaccurate, and I have seen no sufficient reason to conclude that they are.[63]In spite of the considerations outlined above, it is important to have regard to the facts as a whole, which include the Claimant’s interview in January 2017 and the points which the Defendant makes about his answers. Some of the Claimant’s answers in that interview were in my view unsatisfactory. I have in mind, in particular, the apparent lack of family photographs placing the Claimant with his alleged parents (§ 45 above) (or of any explanation for their absence), and the Claimant’s lack of knowledge of his alleged father’s life including his cause of death (§ 49 above). In addition, the apparent absence from the material before the court of the Claimant’s alleged school records (§ 42 above) somewhat weakens his case, though I note that the interviewer does not appear to have asked to see them.[64]However, I consider that the Defendant places too much weight on these points. It seems quite possible that the Claimant, who was brought up in a relatively remote part of India and does not appear to come from a wealthy family, would not have photographs dating from prior to 1977 when his father died. On the basis that he was only 19 when his father died, and that his father travelled abroad a great deal, it is not implausible that the Claimant would have relatively little knowledge about his father’s life and cause of death. Whilst it would have been preferable for the school records to be produced, the Claimant does not appear to have been pressed on this point, or indeed the two preceding points I have just mentioned, in his interview. Overall I do not consider that these points, or the other points the Defendant has made about the Claimant’s interview, seriously undermine the Claimant’s explanations about the documents he has produced or his version of events more generally.[65]Taking account of all the matters set out above, I have come to the conclusion that it is more likely than not that the documents which the Claimant has produced and explained in his interview are authentic and reliable, and that he has established the key facts referred to in §6 above. I consider that those facts are established by, in particular, documents (i)-(iv) and (vi) referred to in § 17 above, taken together with the explanations given by the Claimant in his interview on 19 January 2017. Document (v) is in my view unnecessary for this purpose, though I should make clear that I do not in any way suggest that that document is non-authentic or unreliable.

(D) CONCLUSION

[66]For the reasons given above, I have come to the conclusion that the Claimant is a British Overseas Citizen. I shall hear the parties as to the appropriate form of relief.

Cited in 1 later judgment