R BI v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Rogers |
| Judgment Date | 26 August 2014 |
| Neutral Citation | [2014] EWHC 3070 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/14216/2013 |
| Date | 26 August 2014 |
[2014] EWHC 3070 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Hearing Centre
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
His Honour Judge Mark Rogers
(Sitting as a Judge of the High Court)
CO/14216/2013
Mr Blundell appeared on behalf of the Claimant
Mr Mandalia appeared on behalf of the Defendant
(As Approved)
I express my gratitude to counsel. Although this has been a short case, it has been well argued and argued with great clarity. The narrowness of the issue meant that the argument was inevitably short but nonetheless highly persuasive and helpful. Like counsel, since the issue is short, I hope this judgment can be delivered in the same way.
This is an application brought by Mrs B for judicial review, permission having been granted by His Honour Judge Purle QC. The single issue, as it now appears, is whether she is entitled to succeed in showing that the Secretary of State's decision taken through a decision maker, in relation to her purported date of birth was irrational.
The background circumstances are very helpfully set out in both set of skeletons but there is a very detailed chronology in the bundle and also incorporated in the skeleton argument of Mr Blundell. He demonstrates that the key time was the middle to late of 1974. The claimant's father, Mr Fazal Hussain, was naturalised on 16th July 1974.
The claimant claims to have been born on the 23rd October 1974 and, if that is right, then she is entitled to all of the advantages that flow from that, not least entitlement to a passport. If born before then, the position of course is materially different.
The matter arose in this way as counsel demonstrate. There was a previous application which was refused but it was renewed giving rise to the decision which occurred at the end of 2012 after the submission of documents and after the claimant and her cousin and, query, her brother were interviewed. I say "query" because I need to return to that fact.
The decision challenged was given in the letter of consular section of the British High Commission of Islamabad 10th December 2012, A22 in the bundle. It reads as material:
"When applying for a British passport the onus is on the applicant to prove she is a British citizen. The documents you have provided unfortunately do not conclusively prove this and you were requested to attend an interview. Sada B and Mohammed Bashir attended the interview. There were lots of discrepancies in the answers due to lack of contemporaneous documents submitted with your application in the interview. I am not satisfied that the applicant Sada B was born after her father Fazal Hussain was naturalised as a British citizen. I regret to inform you the above application has been refused and the file closed."
What had previously been submitted is of some significance and without burdening this judgment with a whole list it is necessary to look at the predating correspondence to see that which was submitted and it is there to be seen and counsel has taken me through the documentation beginning at B1 starting with the letter of 7th March 2011.
The decision of the 10th December was short and had it rested there would no doubt have been regarded as adequate. But, perfectly properly, further information was requested and that has led to two further significant documents being produced. The first, dated 19th September 2013, at C35 is a letter from the overseas passport management unit of the Foreign Commonwealth Office and gives rather more information. The key paragraph in amplification of earlier reasons is this:
"The main discrepancy that caused the Passport officer to refuse Miss B's application concerned evidence of her age. She was unable to produce antenatal or birth records and nor contemporaneous birth certificate. Hers dates from 2002 long after her birth and she submitted very few progressive photos. When examining the photos passport officials believe that Miss B was much older than her supposed age. This was confirmed when asked about details of the people in those photos as she was unable to recognise many of them. [I read that literally the grammar is poor.] Her cousin who attended the interview provided further evidence to indicate that there was an inconsistency in the applicant's real and supposed age. When asked to give her age in a family wedding photograph, he gave it as 10 years older than was being claimed."
Yet further particulars were requested and a further e-mail was sent from an individual at the Foreign Office, whose name is redacted from the document. But in terms of responding to the query the writer of that e-mail sets out the relevant documents which had been requested, which was an age assessment report from 2006 and the interview notes. They are to be found immediately preceding that e-mail. It then goes on say this:
"In reaching the decision the examining officer also took into consideration an undated birth certificate submitted by the applicant with the 2012 application which stated the applicant was born 23rd October 1974, 3 months after her father naturalised as a British citizen and the birth was registered on 31st December 1974. The birth certificate was on A4 paper and was verified as genuine on 1st March 2012. This was not submitted when the applicant applied in 2005 when the applicant submitted a different non contemporaneous union council birth registration issued on 13th June 2012. It led the examining officer to doubt the authenticity of the new document despite the verification checks. It is common place in Pakistan for Union Councils to issue non contemporaneous certificates with little or no background checks or supporting documents to validate the information which is being submitted to obtain the certificate."
In addition the examining officer noted that no parents' wedding photos had been submitted with the application. There were very limited progressive photographs. There were no antenatal or birth records for the applicant. There was a DNA report linking the applicant to both parents, the applicant's identity was not in doubt. The DNA did not confirm age. The applicant submitted her Nikanama marriage certificate with her correct spelling of name and date of birth. The applicant had submitted her national insurance contributions with date of birth. The applicant had submitted an age assessment report completed in the United Kingdom by (blank) which was commissioned by the applicant's solicitor. A refusal letter was sent to the applicant on 10th December 2012, the same day the interview took place and not 6 months after. "The letter was returned from to us from Sada B and received at British High Commission Islamabad on 28th June 2013. Whilst there was some indications the applicant's date birth was 23 October 1974 there were also a number of discrepancies which the examiner concluded cast doubt over the applicant's claimed age."
The application for judicial review of course challenges the decision that must be read in the light of the whole process. Unfortunately and perhaps the reasons are so well known they need not full articulation, the defendant's response was very late and failed to comply with court directions but the defendant has argued her case and been well represented, as I have said, but has submitted no witness evidence. I accept the first point that it is now too late for the defendant to take any point on time, and the grant of His Honour Judge...
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