Pusho Rasheed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] EWHC 2052 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4149/2014 |
| Date | 16 July 2015 |
[2015] EWHC 2052 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: CO/4149/2014
The Queen, on the application of
Rashid Ahmed (instructed by Dias Solicitors) for the Claimant
Amelia Walker (instructed by Government Legal Department) for the Defendant
Hearing date: 9 July 2015
Introduction
In this judicial review claim the Claimant seeks an order quashing a decision of 2 October 2013 to declare null and void the grant to him of British citizenship. That decision was taken by the Defendant on the basis that in and after 2001, when he arrived in the UK and claimed asylum, the Claimant deceived the Defendant by pretending to be someone he was not, and in particular by giving a false place of birth; and that the Defendant granted him leave to remain and in due course citizenship in reliance on the false information. In consequence, the Defendant determined, citizenship had never in law been granted to the Claimant.
The Claimant's pleaded case is that:-
i) The Defendant's decision was procedurally unfair, and unreasonable in the Wednesbury sense.
ii) The Defendant was factually wrong in her decision. The Claimant claimed asylum and received leave to remain and, ultimately, citizenship, in his own name, without any identity fraud.
iii) Further and alternatively, even if there was any deception, it was not material to the decision.
iv) The Claimant was under 18 at the time of any deception and for that reason should not be held responsible for it.
A supplementary decision upholding the original determination was made in response to the claim, on 19 May 2015, at the same time as the Defendant's Detailed Grounds of Defence were served. This too is, naturally, challenged by the Claimant.
In the event, I am concerned only with grounds (i) to (iii), as the fourth pleaded ground of challenge has not been pursued.
The essence of the Claimant's case falls under grounds (ii) and (iii). He maintains that he is the person that he said he was; that it is for the Defendant to prove that her decision to the contrary was correct in fact and that the deception she alleges was material to the decision to grant citizenship; and that she has failed to do so.
The fairness and rationality complaints under ground (i) have receded in importance, for obvious reasons. The Claimant's essential complaint under this head has been that the Defendant reached her decision of October 2013 on an inadequate evidential basis, without giving him any opportunity to address in advance the reasons why she suspected him of impersonation. However, not only has there been the supplementary decision, it is accepted that any unfairness has been substantially cured by the factual investigation undertaken in these proceedings, which will determine whether or not the Defendant was right. Accordingly, the Claimant does not seek any order quashing the October 2013 decision on these grounds.
It is on issues (ii) and (iii) that I shall focus, therefore, before returning at the end of this judgment to some brief observations on grounds (i) and (iv).
Legal and policy context
The decisions under challenge were made in the context of Chapter 55 of the Defendant's Nationality Caseworking Instructions on deprivation and nullity of British citizenship. The Instructions set out the circumstances in which it is considered that a person may be deprived of citizenship, or have its grant declared to be a nullity. Paragraph 55.1.3.1 states that:-
"If there has been a decision to grant an application for registration or naturalisation as a British Citizen, nullity action would be appropriate in circumstances where
A: It is discovered that the applicant is not the intended recipient of the grant
This could happen in the following ways:
The applicant has given false information or concealed information concerning their identity, for example by using a false name, giving a false date or place of birth…in this scenario, whether nullity action is appropriate will depend on the nature, quality and extent of any fraud, deception or concealment."
Paragraph 55.9.3 and 55.9.4 contain further provision as to the circumstances in which impersonation can lead to nullity:
"…A grant of British Citizenship or registration as a British Citizen should be treated as a nullity where the applicant has concealed or misrepresented such identifying particulars to such a degree that they can be said to have adopted a false identity in the sense of false attributes. The decision will be specific to each case. It will be a question of fact and degree depending on the nature, quality and extent of the fraud, deception or concealment
It should be remembered that a person is, at all times, and without the need to observe any particular formality, free to take on any name he or she chooses. There is nothing illegal in this, providing the person involved is not advancing a false identity"
The relevant legal principles are not in dispute. Most of them were identified by Ouseley J in Kaziu v Secretary of State for the Home Department [2014] EWHC 832 (Admin), [2015] 1 WLR 945, where he drew on earlier authorities for a synthesis of the current law. Ouseley J's decision is under appeal, but accepted as authoritative in this Court. Paragraph references in what follows are to the judgment of Ouseley J unless otherwise indicated.
i) There is a narrow category of case in which the grant of nationality is a nullity, with the effect that the person affected has no right of appeal, as they would do if they were deprived of nationality on the grounds of fraud: [41].
ii) The distinguishing feature of cases in this category can be summed up in the word "impersonation". More specifically, there must be a false representation as to identity. Moreover, it is not just any matter which can be described as an attribute of a person or his identity which matters; the key characteristics of identity in this context are name, date of birth, and nationality, or country and place of birth (if the latter is used in place of the former): [42]–[46].
iii) The grant of citizenship has to have been obtained by fraud, and not by an innocent error or misunderstanding or the like: [47].
iv) The fraud must also be material to the grant: [47].
v) The question of whether a grant of citizenship is a nullity is an issue of fact for the Court. It is not merely a question of whether the Secretary of State has reached a reasonable judgment. If there is no fraud such as to lead to the nullity of a grant of citizenship the Defendant Secretary of State has no power to declare it a nullity. If the point is disputed, the Court must make a finding of fact. [48].
vi) The burden of proof is on the Defendant: [48].
vii) The standard of proof is the ordinary civil standard of the balance of probabilities. (Although it was submitted in the Claimant's Skeleton Argument that the fact that the allegation was of fraud meant that proof beyond reasonable doubt was required, Mr Ahmed, who did not prepare the Skeleton Argument, has not persisted in that point.)
viii) The fact that the allegation is one of fraud does affect the approach the court should take, but in the way authoritatively established by the decision of the House of Lords in Re B (Children)(Care Proceedings: Standard of Proof) [2008] UKHL, [2009] 1 AC 11. There is no question of any 'enhanced' civil standard of proof. As Lord Hoffmann said at [13] "… the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not." Lord Hoffmann went on to explain at [14] that the right approach is to follow the guidance of Lord Nicholls in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586:
"the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
The emphasis is that of Lord Hoffmann, and was meant to underline the importance of tailoring the approach to the facts of the case.
To these principles I add only three further observations. The first is that the burden lies on the Defendant to prove the fraud and its materiality. Secondly, the approach in Re B will be material only in relation to the first of those two points. Thirdly, to some extent the Re B approach cuts both ways in this case. That is because, as will appear, the Claimant's own case is that he obtained Iraqi identity documents by fraud on the Iraqi authorities. I bear in mind, however, that it is not he who bears the burden of proof.
The approach to fact-finding
In most legal contexts, the truth or falsity of a disputed allegation of fraud would be investigated through oral evidence, with cross-examination. Oral evidence and cross-examination are not the custom in judicial review, no provision had been made for it in the directions given in this case, and both Counsel were taken by surprise when I raised the possibility at the outset of the hearing.
After a pause for thought and instructions, Mr Ahmed for the Claimant proffered his client for cross-examination, whilst noting that no arrangements had been made for an interpreter, but that his client spoke English. Counsel for the Defendant, Ms Walker, was...
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