R (on the application of Edmir Xhelilaj) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Timothy Corner |
| Judgment Date | 24 February 2021 |
| Neutral Citation | [2021] EWHC 408 (Admin) |
| Date | 24 February 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2513/2020 |
[2021] EWHC 408 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Timothy Corner, QC
Sitting as a Deputy High Court Judge
Case No: CO/2513/2020
Eric Fripp (instructed by Rashid & Rashid) for the Claimant
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 16 th February 2021
Judgment Approved
Timothy Corner, QC:
In this matter the Claimant seeks judicial review of the Defendant's refusal to return his British passport to him.
BACKGROUND
The Claimant is a British citizen whose stated place of birth is now in the Republic of North Macedonia. The Claimant states that he was born on 20 th January 1986 at Sells Tetova in the Socialist Republic of Macedonia, a component of the former Republic of Yugoslavia. He is of Albanian ethnicity.
On 14 th August 2001 the Claimant entered the United Kingdom and in October 2001 he sought asylum. This was refused, but exceptional leave to remain was granted, and on 21 st December 2005 the Claimant was granted indefinite leave to remain. Later he applied for naturalisation as a British citizen, and this was granted on 1 st September 2010. He applied for a British passport on 15 th September 2010 and was asked to attend an interview to confirm his identity. On 5 th October 2010 a British passport (no 466493570) was issued to the Claimant.
On 14 th July 2018 a son was born to the Claimant and an application was made for a British passport in the son's name. This was rejected on 7 th September 2018 on the basis that the counter-signatory on the form was not accepted. A new application was made and on 13 th September 2018 the Defendant wrote to the Claimant seeking a copy of his own passport for use in processing the application for his son. The Claimant provided his passport to the Defendant. On 27 th November 2018 the Defendant wrote to the Claimant requesting a copy of his birth certificate.
The Claimant's solicitors wrote to the Defendant on 29 th November 2018 saying
“Our client has not changed his name before or after entering the UK, nor his date of birth. However, he wishes to inform you that when he entered the UK he was a minor and did not have the birth certificate on arrival. Since he has now spent most of his life in the UK having left Yugoslavia during the civil war, he does not possess, nor is he able to obtain the birth certificate from the time of his birth and it is unlocatable due to the turmoil of war.”
Attached was a statutory declaration from the Claimant, stating amongst other things that
“I hereby confirm unequivocally that I have been honest with all information provided to the authorities and notwithstanding this, as I have entered the UK as a minor and due the turmoil of the civil war, I do not have in my possession a birth certificate…..”
On 7 th January 2019 the Defendant wrote to the Claimant informing him that she had concerns about his identity and that it had been decided that his British passport was to be retained and not returned.
On 4 th February 2019, the Defendant wrote to the Claimant asserting that she possessed information suggesting that he had provided false information to obtain British nationality and notifying him that she was considering depriving him of his British citizenship by exercise of the power under section 40(3) of the British Nationality Act 1981 (“the 1981 Act”), setting out the consequences of any such decision and inviting the Claimant to provide documents proving his Macedonian origin.
The Claimant's MP wrote to the Defendant regarding the case on 12 th March 2019 and on 8 th April 2019 a letter before claim was sent the Defendant with medical evidence (a letter from his General Practitioner dated 18 th March 2019) concerning the effect on the Claimant's health of delay in determining his status.
On 2 nd July 2019 the Claimant attend an interview at the Defendant's premises relating to the contemplated decision to remove his British citizenship. On 5th July 2019, the Defendant wrote to the Claimant requesting further documentation, which the Claimant provided in August 2019. By letter dated 16 th August 2019, the Defendant set out the main concerns;
“On 2 nd July 2019 your client attended an interview at HM Passport Office in London where it was put to him that there was no record of his birth in Macedonia, in order to allow him the opportunity to confirm his identity.
He claimed that as he was born at home and as such his birth was not registered.
He did not provide any identification or other documentation from prior to his entry into the UK.
His British passport shows extensive travel to Albania within 2 months of its issue in 2010 up to an entry stamp on 10 th April 2016. The passport does not show any travel to Macedonia. There is no exit stamp from Albania which indicates that he may hold a further passport other than his British passport, this is denied by your client who states that he presented his passport to immigration and cannot explain why there is no stamp present.
Following our letter to you and your client dated, 05 July 2019, no further documentation was submitted to support your client's identity and a suggestion to your client to approach the Macedonian authorities for assistance does not appear to have been acted upon.”
By letter from his solicitors dated 29 th August 2019 the Claimant provided evidence of his travel history obtained from the Albanian authorities. On 16 th September 2019 the Defendant wrote to the Claimant suggesting that the copy travel record was “not particularly clear”, asserting that there were discrepancies between the entries in the travel record in the stamps in the Claimant's passport, and asking for any other passport used in the relevant period.
On 30 th September 2019, the Claimant's solicitors wrote to the Defendant enclosing a more legible copy of the travel record and translation and saying;
“You..stated that there appear to be 24 entries on the schedule but that there is no translation and there are only 13 stamps in the passport including entry and exit stamps. Our client instructs and reiterates that he has no other passports aside from his British passport and has always used the latter to travel outside the country. With regard to the stamps it is our client's submission that the only explanation to this is that his British Passport might not always have been stamped on entry or exit. He has provided a translated version of the copies for your ease of information and reference.”
In a letter to the Defendant of 14 th October 2019 the Claimant's solicitors reiterated;
“…the Home Office is…aware that the client explained that his birth was not registered in Macedonia as he was born at home. He entered the UK as a minor as the Home Office is already aware but never presented any form of identification because he had none.”
In a letter also dated 14 th October 2019 the Defendant stated its position that;
“on the documentation and information available, HM Passport Office is unable, on balance, to establish [the Claimant's] identity and therefore not in a position to return to issue a new passport at this time.”
On 6th November 2019, the Claimant issued judicial review proceedings challenging the Defendant's delay in addressing the question of whether to exercise her section 40( 3) 1981 Act power and continued retention of his passport. Permission to apply for judicial review was granted on 18th February 2020. On 11 th March 2020 the Defendant wrote to the Claimant;
“On 04 February 2019 we wrote to you to advise you that the [Defendant] was considering depriving you of your British citizenship on the grounds that it had been obtained as result of fraud, false representation, or concealment of material fact.
Your case was referred to us because it was believed that you had obtained British citizenship using a false identity. The full facts and any mitigating circumstances that you have presented have now been considered in accordance with our policy.
I am now writing to inform you that the [Defendant] has decided not to deprive you of citizenship because your case does not fall within our policy.”
The judicial review claim was then resolved by consent on the basis that the Defendant had issued a decision not to deprive the Claimant of British citizenship, the Claimant had leave to withdraw the claim and the Defendant would pay the Claimant's costs. The Order by Consent was signed on 25 th March 2020.
On 30 th March 2020 the Claimant wrote to the Defendant requesting the return of his passport.
The Defendant responded on 29 th April 2020, stating;
“Her Majesty's Passport Office… accepts that your client was and remains a British Citizen. The issue is with [his] identity not his status. HM Passport office must maintain the integrity of the passport so that people have confidence in the details presented with it.”
The letter went on to state that the Defendant was not in a position to return the passport “at this stage” due to concerns regarding the Claimant's identity set out in the Defendant's letter of 16 th August 2019.
In response to further letters of claim, the Respondent stated in a letter of 6 th July 2020;
“I note that your challenge relates to the fact that Her Majesty's Passport Office… has refused to return the British passport of [the Claimant]. I have since reviewed this matter on your behalf, and I am satisfied that the action taken.. in retaining the passport has been appropriate and in accordance with policy.
“For clarification there is no statutory right to have access to a British passport. HM Passport Office will only issue a passport once...
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...Civ 113 at para. 50, and the judgment of Mr Timothy Corner QC, sitting as a Deputy High Court Judge, in R (Edmir Xhelilaj) v SSHD [2021] EWHC 408 (Admin) at para. 42, when he said: “It was common ground at the hearing that it is now established that issue estoppel applies in the area of pu......
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Upper Tribunal (Immigration and asylum chamber), 2023-01-23, EA/02799/2020 & EA/02800/2020
...that statement of the law is the decision of Timothy Corner QC, sitting as a Deputy Judge of the High Court, in R (Xhelilaj) v SSHD [2021] EWHC 408 (Admin). Xhelilaj was a case in which the Secretary of State had resolved prior judicial review proceedings by consent, stating that she had de......