R (Fayad) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Hickinbottom |
| Judgment Date | 31 January 2018 |
| Neutral Citation | [2018] EWCA Civ 54 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/2729 |
| Date | 31 January 2018 |
The Queen on the application of
[2018] EWCA Civ 54
Lord Justice Hickinbottom
and
Lord Justice Singh
Case No: C4/2014/2729
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT))
HIS HONOUR JUDGE McKENNA SITTING AS A DEPUTY HIGH COURT JUDGE
[2014] EWHC 2556 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Gary Dolan (instructed by AMZ Law) for the Appellant
Susan Chan (instructed by Government Legal Department) for the Respondent
Hearing date: 24 January 2018
Further written submissions: 24 January 2018
Approved Judgment The Court certifies that this judgment may be cited in other cases
This is an application by the Appellant Nazem Fayad under CPR rule 52.24(5) for review of the decision of Master Bancroft-Rimmer of 16 August 2017 in which she ordered that, in respect of the costs below, there should be no order; and that the Appellant should pay the Secretary of State's costs of making costs submissions.
The background to the application is as follows. The Appellant was born in Sierra Leone on 5 February 1961. In 1994, when he was living in Lebanon, he applied for and obtained a British Overseas passport through the British Embassy in Beirut. In 2003, the Secretary of State placed the Appellant on the Stop File List, because that first passport had been issued by an official against whom allegations of corruption had been made. Unfortunately, the fact that the Appellant was on that list was not noticed when the Appellant was issued with a Certificate of Registration as a British Citizen on 19 April 2005, or when he was issued with successive British passports on 25 March 2005, 25 April 2005, 28 March 2007 and 13 December 2009.
However, when he applied for a new passport in 2012 – the first application he made from within the United Kingdom – the Identity and Passport Service (“the IPS”), acting on behalf of the Secretary of State noticed that he was on the list, and his application was referred to a fraud investigation officer. In the course of that investigation, the Appellant attended several interviews, and provided various information and documents including several copies of his birth certificate which were purportedly certified.
Pausing there in the chronology, it would be helpful to identify the basis upon which the Appellant claimed that he was entitled to a British passport. As I have indicated, he was born on 5 February 1961, in that part of Sierra Leone which was then a British Colony. Sierra Leone declared independence on 27 April 1961. The way in which citizenship of those who had been born in Sierra Leone was affected by independence was effectively determined by the citizenship laws enacted by the newly independent Sierra Leone government. Those were to the effect that an individual born in Sierra Leone prior to independence became a citizen of Sierra Leone if his or her parents and grandparents were also born in Sierra Leone. Otherwise, a person born in the British Colony of Sierra Leone before independence retained the status of a British Subject Citizen of the United Kingdom and Colonies. Under the British Nationality Act 1981, that status was later converted to British citizenship.
The Appellant's claim to British citizenship such as to entitle him to a British passport was therefore dependent upon the place of birth of his parents and grandparents; and, in his interviews with the IPS to which I have referred, he was pressed for documentation showing that one or more of his parents and grandparents were born outside Sierra Leone. He said that both his parents were born in Lebanon, and relied on the certified copies of his birth certificate as evidencing that fact. The IPS, however, did not accept the genuineness of the copy birth certificates which had a number of discrepancies, e.g. they bore different volume and page numbers from the purported source document. Furthermore, it appeared that, when the Appellant submitted his original application for a British passport in 1994, he had not submitted the required documentary evidence; and, as I have indicated, that application had been considered and issued by an official against whom allegations of corruption had been made. Indeed, it seemed that the Appellant could not remember anything of the circumstances in which his first British passport was issued in 1994.
The IPS was consequently not satisfied that any one of the Appellant's parents and grandparents was born outside Sierra Leone. Therefore, it did not grant the application; but neither did it refuse it. On 14 December 2012, in response to an enquiry from the Appellant's Member of Parliament, the IPS wrote confirming that, at his interview of 3 October 2012, the Appellant had failed to provide documentation required to prove his British nationality. After pre-action protocol correspondence, on 4 March 2013 the Appellant issued judicial review proceedings. These focused on the letter of 14 December 2012. The grounds were simple: the Appellant contended that the 19 April 2005 Certificate of Registration was conclusive of his British nationality; and there was thus no justification for the IPS re-examining his nationality, or the delay that had caused, or for not now issuing him with a new British passport forthwith. So far as relief was concerned, the Appellant sought a mandatory order requiring the IPS to issue him with two British passports, and he claimed compensation for the earnings he had lost as a result of the IPS delay.
At an oral hearing on 14 November 2013, Collins J granted permission to proceed (reported as [2014] EWHC 4772 (Admin)). He ordered the Secretary of State to issue the Appellant with a temporary passport; and he asked Counsel for the Secretary of State (then, as before us, Susan Chan) to convey to the Secretary of State that she should not be proud of the way in which the Appellant's passport application had been dealt with; and, the judge said, it looked to him as though she ought to concede (see [47]).
The substantive hearing came before Judge McKenna on 16 July 2014. Shortly before, on 17 June 2014, the Appellant applied to amend his grounds, to include (amongst other things) a claim that, by withholding his passport the Secretary of State had violated his rights under article 8 of the European Convention on Human Rights. The relief sought was clarified and expanded to include a declaration that the IPS had acted unlawfully by questioning his entitlement to British citizenship, and “damages for loss of earnings due to [his] inability to travel prior to the grant of interim relief and continued restrictions to his ability to engage in business activity”. Judge McKenna appears to have granted that application on 8 July 2014.
However, in a reserved judgment dated 24 July 2014 ( [2014] EWHC 2556 (Admin)), he dismissed the claim. In doing so, he refused to consider documents from 1994 which the Appellant contended assisted him, because they had been disclosed late; and he accepted that the Secretary of State had legitimate grounds for concern in respect of the genuineness of birth certificates upon which the Appellant relied (see [30]). He noted that the Secretary of State had not refused the request for a passport: she had simply asked for documentary evidence from the Appellant to establish his identity and thus his entitlement to a British passport, doubt having been cast on that by virtue of the allegations of corruption against the official through whom he obtained his first British passport and the fact that, in applying for his first British passport, he appeared not to have submitted the required documentary evidence in support of his identity (see [26]–[27]). Those concerns had been compounded by the fact that the Appellant appeared not to recall when his first passport was issued or the documents he used to support his request for that passport (see [28]), and the documents he had produced contained various unexplained discrepancies (see [29]). The Appellant's main proposition, that he was entitled to a new British passport now simply because he had been granted a Certificate of Registration of British Citizenship and had had a British passport for 20 years, was therefore not sound (see [30]). The Certificate was granted only on the basis of his first British passport. The Secretary of State had legitimate, evidence-based concerns, and it was not irrational for her to decline to issue a British passport to the Appellant before those concerns had been alleviated (see [32]–[33]). Nor did the Secretary of State act in any way that was procedurally unfair (see [34]–[35]).
Having refused the application, he directed that costs be dealt with on the basis of written submissions. The Secretary of State contended that there should be no order as to costs. The Appellant submitted that he should be entitled to his costs; but, alternatively, there should be no order. Judge McKenna ordered that there should be no order as to costs.
The Appellant issued an Appellant's Notice in this court on 15 August 2014, challenging Judge McKenna's refusal of his judicial review, and again seeking an order compelling the Secretary of State to issue him with a passport. On 19 December 2014, on the papers, Davis LJ refused permission to appeal. The Appellant renewed his application for consideration at an oral hearing.
However by this stage, but unknown to Davis LJ, matters had moved on. On 13 August 2014, in response to queries raised by the IPS, the British High Commission in Sierra Leone confirmed that the certified birth certificates provided by the Appellant were genuine, confirmed to the Appellant by letter dated 1 December 2014. In the light of that, on 22 June 2015,...
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