R Stephenie Oluwitse Alake v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 22 July 2020 |
| Neutral Citation | [2020] EWHC 1956 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2/2020 |
| Date | 22 July 2020 |
[2020] EWHC 1956 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2/2020
Joseph Plowright (instructed by Perera Solicitors) for the Claimant
Tom Tabori (instructed by the Government Legal Department) for the Defendant
Hearing date: 16 July 2020
Approved Judgment
This is a renewed application for judicial review of the Defendant's decision dated 26 August 2019 to refuse the Claimant's application for a replacement British passport.
Permission was refused on the papers on 17 March 2020 by HH Judge Pearce, sitting as a Judge of the High Court. He did, however, extend time for making the claim.
Facts
The Claimant was born in Nigeria on 20 September 1984. Her mother was a Nigerian national, who is sadly deceased. The Claimant claims that her father is Mr O. A. Alake, a British citizen, who was married to her mother at the time of her birth, but left them in Nigeria when he returned to the UK soon after her birth. In 1986 her parents separated.
The Claimant travelled to the UK in 2004, and moved in with her aunt in 2005. She has been residing in the UK since then. She claims she last saw her father ten years ago.
On 2 April 2007, the Claimant was issued with a British passport based on her claimed father's identity and British nationality. She and her partner, Kazzem Shittu, have two sons, born in 2011 and 2015, who have also been issued with British passports.
In July 2017 the Claimant applied to Her Majesty's Passport Office (“HMPO”) for a replacement passport. As part of their identity checks, HMPO asked the Claimant to provide some additional information, including her parents' wedding certificate. The Claimant provided a copy of a Nigerian wedding certificate. Following overseas checks in Nigeria, the wedding certificate was deemed to be unverifiable i.e. it could not be matched with the records in the central registry. The Claimant attended an interview at the passport office and as she was unable to provide sufficient details, her aunt provided the passport office with a statement, confirming that Mr Alake was the Claimant's father. Her aunt had last seen him in 2006, when she asked him to support the Claimant but he refused.
Neither the Claimant nor her aunt know Mr Alake's current contact details.
HMPO managed to trace Mr Alake. HMPO had a file on him because he had been a victim of identity theft in the past, at which time HMPO had taken steps to establish his genuine identity. He answered questions posed by the passport office and in January 2018 he sent a written statement stating that the marriage certificate was a fake; he did not know the Claimant's mother and did not marry her; and he did not know the Claimant and she was not his daughter.
In March 2018, HMPO revoked the Claimant's passport and the passports of her sons. As a result, the Claimant has been unable to work or claim benefits and she has become depressed. Her future in the UK is in jeopardy. The Claimant and her sons filed a claim for judicial review. Permission was granted in an order dated 5 September 2018 by John Howell QC, sitting as a Deputy High Court Judge, on the ground that HMPO should have given the Claimant an opportunity to respond to Mr Alake's statement before making a decision. In the ‘Observations’ section of his order, he said it was possible that the Claimant could have raised matters which might have made a difference to the decision, for example, requesting HMPO “to help arrange for a DNA test between Mr Alake and the First Claimant”.
Following the grant of permission, the parties entered into a consent order, sealed on 16 October 2018, under which the Claimant and her sons submitted a further set of passport applications and the Defendant agreed to issue fresh decisions.
By letter dated 11 December 2018, HMPO refused the applications (the second refusal). The Claimant's solicitors challenged the refusal in a pre-action protocol letter. In a letter dated 13 February 2019, HMPO responded, accepting that the decisions had not been properly made, and agreeing to make fresh decisions.
On 12 March 2019 the Claimant sent a further application. She was then invited to attend an interview, bringing with her as many forms of identification as possible, and she duly attended on 5 July 2019. The Claimant's solicitors complained to HMPO about the conduct of the interview, saying it was bullying and intimidating. But HMPO denied this. The account given by the case officer who conducted the interview indicated that she was unco-operative.
By letter dated 26 August 2019, HMPO refused the Claimant's application again, on the ground that it was not satisfied that the Claimant had provided enough evidence to confirm her claimed relationship with her alleged father and therefore it was not satisfied that her status as a British citizen had been established. This was the third refusal and this is the decision which is challenged in this claim. The letter was not received until November 2019; hence the extension of time granted by HH Judge Pearce.
Grounds for judicial review
Following exchange of pre-action protocol correspondence, this second claim for judicial review was issued on 30 December 2019, on two grounds:
i) It was procedurally unfair and therefore unlawful to refuse the Claimant's application for a British passport without offering any assistance to the Claimant to undergo DNA testing to demonstrate that she is the daughter of her claimed father.
ii) It was procedurally unfair not to disclose the interview notes and a recording of the interview which took place on 5 July 2019, prior to deciding not to grant her application for a passport.
In the claim, the Claimant did not contend that HMPO was under an obligation to conduct the DNA test itself, and acknowledged HMPO had no power to require the parties to undertake a DNA test. The Claimant put her case in this way at paragraph 20 of the statement of facts and grounds:
“….. It has always been the Claimant's case that she does not know where her father lives. The Passport Office do know where the Claimant's father lives. It is therefore submitted that in light of the seriousness of having her passport revoked and her application for a British passport refused, the Passport Office could have, at the very least, written to the claimant's alleged father, asking him whether he would consent to a DNA test…”
Ground 2 is no longer pursued – which sought disclosure of interview notes and records – as the documents have now been supplied.
In his decision refusing permission, HH Judge Pearce said:
“2. The Claimant relies two grounds in support of her argument that the Defendant's decision to refuse her application for a British passport was unlawful:
a. That the Defendant has not offered any assistance to the Claimant to demonstrate that she is the daughter of the man who she claims is her father, through which relationship she claims to be entitled to a British passport.
b. The Defendant had not disclosed the notes of an interview on 5 July 2019 or a recording of that interview by the time of making the decision on 26 August 2019 not to grant the Claimant a passport.
3. Under the first ground, the Claimant contends that, given that the identity Claimant's father is central to this case and that his whereabouts are known to the Defendant (as demonstrated by their communication with him) but not the Claimant, it is incumbent on the Defendant to assist with arrangements for DNA testing to resolve the issue. They draw attention to the fact that Mr John Howell QC, sitting as a Deputy High Court Judge, observed that the Defendant might assist in such arrangements in granting permission to bring judicial review proceedings of a previous decision of the Defendant in respect of the Claimant's application for a passport in September 2018.
4. The Defendant submits that DNA testing is not the only route to proving paternity and that the other evidence does not on balance prove the paternity of Mr Alake. This may be correct, but DNA testing would no doubt be powerful evidence on the issue and would probably determine it one way or the other.
5. The Defendant also states that it has no statutory power to require Mr Alake to provide DNA evidence. It is stated in the Defendant's letter of 26 August 2019 that, during the interview on 28 June 2019, the Claimant said that the Defendant should “ facilitate, conduct and pay for a DNA test between her and her alleged father…” I am unaware of any statutory obligation on the Defendant to do this and none has been suggested on behalf of the Claimant.
6. It is arguable that, if she were asked to assist with a DNA test in these circumstances, the Defendant's duty, apparently knowing the whereabouts of the putative father, would be to provide assistance in the performance of a DNA test by contacting the father and asking him to cooperate, as suggested in paragraph 20 of the Claimant's written grounds. Whilst he might decline to do so, a failure to cooperate would be relevant evidence from which the Defendant might draw an inference as to the true paternity of the Claimant.
7. However, the difficulty for the Claimant is that she cannot show that the Defendant has failed to discharge such a duty, since no request has been made to the Defendant. The evidence, as quoted above, is that the Claimant requested the Defendant to pay for and arrange the testing. I cannot see that the Defendant is under any obligation to do this. In correspondence on her behalf, solicitors have spoken of an obligation “ to facilitate and arrange a DNA” (sic). Again, it is not...
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