R Mohammed Salikur Rahman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] EWHC 1146 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 April 2015 |
| Docket Number | Case No: CO/16766/2013 |
[2015] EWHC 1146 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: CO/16766/2013
Amanda Weston (instructed by Sutovic & Hartigan) for the Claimant
Edward Brown (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 18 th March 2015
On the 5 th March 2014 Mr. Charles George QC, sitting as a Deputy High Court Judge, granted the claimant permission to bring this claim for judicial review. The Claim Form seeks a declaration that the claimant is a British citizen by descent, and a mandatory order requiring the defendant to show cause why a passport should not be issued and/or to issue a British passport to the claimant.
The Decision
The decision under review was contained in a decision letter dated 7 th August 2013. The substance of this letter, addressed to solicitors acting for the claimant, is as follows:-
"The provisions of the British Nationality Acts 1948 and 1981 govern British nationality law which is determined by the facts of a person's date and place of birth, and those of their parents. Her Majesty's Passport Office has no discretion on how the law may be interpreted, nor are we able to grant a British passport where the person does not have a claim to British citizenship.
"The main function of Her Majesty's Passport Service is to establish a person's identity and claim to a British passport. Therefore a passport can only be issued where both the applicant's eligibility for a British passport and identity has been established by Her Majesty's Passport Office. This means that where the eligibility of the applicant has been established but not their identity and vice versa, we are unable to issue a passport to that person.
"In your client's case, we have not been able to establish this through the documents provided so his eligibility to British citizenship cannot be confirmed. We are therefore not in a position to issue further passport facilities to Mr. Rahman and his application has been withdrawn."
It is not absolutely clear from this letter whether Her Majesty's Passport Office (HMPO) was unable to confirm the claimant's identity, or his eligibility for a British passport, or both. However, when the Detailed Grounds of Resistance to this claim were served, they made the HMPO's position clear by saying that HMPO was satisfied that the claimant's identity had been established but not that his eligibility to British citizenship has been established. This means that HMPO does not accept that the claimant is the son of the man who was granted British citizenship in 1958, Somir Ullah otherwise known as Uddin. The name Ullah appears on the claimant's birth certificate, but the name Uddin was used on his Bangladeshi passport, and his student visa application made in 1994. As will be seen, this discrepancy of names has been apparent to HMPO at various times and has had different outcomes. In the Skeleton Argument served in March 2015 for this hearing, the defendant accepts that if it is established that the claimant is the son of Somir Ullah then he is eligible for British citizenship and, therefore, a passport. That therefore is a factual dispute which underlies this challenge.
The application for a passport which was thereby rejected was a renewal application dated 18 th August 2011, and it had been under consideration for almost exactly 2 years by the time it was rejected.
The Letter of Claim
The formal letter of claim which preceded the issue of the claim form in these proceedings was dated the 29 th October 2013. It sets out the facts of the case in brief. The claim to citizenship being advanced was based on the claimant's assertion that he is the son of Somir Ullah who obtained British citizenship in 1958 and is therefore British by descent, having been born in Sylhet, Bangladesh. It is pointed out that this claim was accepted by the UK Passport Agency when it issued him with a British passport on 4 th September 2001.
The letter also refers to a decision of Mr. C.G. Kelsey, Immigration Judge, sitting in the Asylum and Immigration Tribunal, promulgated on 18 th April 2006. This decision concerned an appeal by the claimant's mother and two sisters against the refusal by the Entry Clearance Officer in Dhaka to grant certificates of entitlement to the right of abode in the United Kingdom on the basis of their relationship to Somir Ullah. The claimant gave evidence to the Tribunal and was the sponsor of the applications being made by his mother and sisters. The Tribunal also considered a village enquiry report by Mr. M.B. Hussain and other documents identified in its written decision. There was DNA evidence before the Tribunal, but which is mentioned in the decision. The reason for the refusal was that the Respondent raised doubts about the identity of the claimant, as sponsor. It appeared that his passport had been granted in 2001 without any referral to the High Commission in Dhaka. Documents held there included a birth certificate relating to the claimant which showed him not to be the son of Somir Ullah, but of Monir Ullah. There was also an application in 1978 when a woman with the same name as the claimant's mother applied to the High Commission for something (the decision does not say what) on her own behalf and that of her son (the claimant) and his brother saying that they were the wife and sons of Monir Ullah. This application appears to have been refused. The claimant was later granted a student visa using a different name and relying on his descent from Somir Ullah, (who was also known as Uddin). The respondent said that there was therefore evidence of deception in the family in 1978 when the application using the name of the claimant's mother was actually made by another woman who claimed to be his mother. Sunaban Khatun, the wife of Monir Ullah, had applied on behalf of two boys who were not her sons. The respondent not surprisingly expressed puzzlement about the motive for lying about the paternity of the two boys if their real father had been granted British citizenship in 1958. The respondent addressed the DNA evidence in this way, according to paragraph 12 of the decision:-
"Although the DNA tests showed that the first Appellant [the mother] was the mother of the Sponsor, this was not regarded as sound grounds for establishing that she was related to the late Somir Ullah as she claimed."
It was common ground before the Tribunal that the late Somir Ullah was registered as a British citizen on 22 nd August 1958 and the issue was whether the appellants were, respectively, his wife and two daughters. This, in turn, depended on DNA evidence from tests in 2002 which showed that the three alleged children of Somir Ullah all had the same father. Therefore, if the sisters were descended from him, so was the claimant. The relevance of the village enquiry report was to attempt to establish who that father was. The claimant's evidence was designed to address the deception in 1978 revealed by the documents at the High Commission. He was about 10 years old at that time. He said that he remembered going to Dhaka with his uncle at this time, but he did not know why. It appeared that his uncle had claimed to be his father. He said that by this time his true father's contact with the family had become tenuous, and that they lived in an extended family of which the uncle was the head.
The Tribunal Judge set out the evidence before it, and then its findings. He identified the issue as being whether the 1978 application had been based on deception or whether the applications before the Tribunal were deceptive. He found as a fact, relying on the village report of Mr. Hussain, that Monir Ullah (the claimant's uncle) had attempted to bring the claimant to the UK in 1978 pretending that he was his father. He had in fact been the son of Somir Ullah, or Uddin. Since he had the same father as the two appellants who claimed through him also to be descended from Somir Ullah, it followed that they were too and were entitled to succeed. He said this:-
"I also find that the enquiries made in the village and the contents of the report by Mr. Hussain together establish that the Sponsor, Mr. Salikur Rahman, is the son of Somir Ullah and was entitled to his British citizenship and to the passport which he obtained."
The letter of claim, having referred to the decision of the Tribunal said that its findings had been unchallenged and were binding on the Secretary of State without good reason. It then set out the circumstances of a visit by the claimant to the passport office on 2 nd December 2011 in the context of his passport renewal application. It recited that he had complained about that visit, saying that he had been referred to as an "immigration offender" and warned that the police had been called. The claimant had involved his MP, to whom HMPO wrote by letter of the 26 th June 2012 and specified long list of documents which as said to be necessary. This had been dealt with by solicitors who then acted for the claimant and there was an exchange of correspondence which resulted in the letter of refusal in August 2013 which I have quoted above.
The letter before claim said that the decision was reached after an unfair procedure, was irrational in that it failed to give any weight to the Tribunal decision, and breached the claimant's Article 8 rights.
The Grounds of Claim
HMPO did not reply to the letter before...
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