Secretary of State for the Home Department v GA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Elisabeth Laing,Lord Justice Moylan |
| Judgment Date | 23 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1131 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2021/0734 |
[2021] EWCA Civ 1131
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)
Mr Justice Chamberlain
CO/328/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Peter Jackson
and
Lady Justice Elisabeth Laing
Case No: C4/2021/0734
Edward Devereux QC and Claire van Overdijk (instructed by Government Legal Department) for the Appellant
Sam Grodzinski QC, Mehvish Chaudhry, and Rachel Jones (instructed by Bindmans LLP) for the Respondents
Hearing date: 15 July 2021
Approved Judgment
An Order has been made preventing the identification of the Respondents
Introduction
The Appellant Secretary of State is responsible for Her Majesty's Passport Office (‘HMPO’). The Respondents are a mother and four children, British citizens currently living in Country X. In December 2019, the mother applied to HMPO for British passports for the older three children, the fourth child having been issued with her British passport in late 2020 after being born in England earlier that year. In a decision communicated by letter of 7 January 2020, HMPO refused to accept the applications because it required them to be supported by evidence of the consent of a person with parental responsibility under the law of Country X. It considered that person to be the children's father alone. The mother was not considered to have any status at all.
The difficulty with that response is that it was either unsafe or impossible for the mother to obtain the father's consent. In making the applications she had explained that he had recently been arrested after:
“months of extremely serious physical and psychological abuse including torture of me – much of this witnessed by the children – when he isolated us”.
In subsequent correspondence with HMPO and in her statement in these proceedings the mother described how the father had become mentally unwell. He had interrogated and beaten her, sometimes knocking her unconscious. He had broken her nose, burned her, repeatedly threatened to kill her and the children and, on occasion, been violent towards them. There had been criminal proceedings against the father in Country X and in the course of those proceedings, he had admitted causing her bodily harm. Before the court, he had signed a declaration in these terms, which formed part of a sealed order:
“I confirm that I have no objection against the travel of my children [full names] accompanied by their mother [full name] to visit her parents outside the country.”
When this was provided to HMPO, it replied:
“The letter provided did not specifically authorise the issue of the children's British passports. We need you to provide a new letter from father – consenting to the passports being issued and the consent of travel.”
The mother was unable to obtain the required document and in January 2021, she issued judicial review proceedings. The outcome was that Chamberlain J (‘the Judge’) quashed HMPO's decision to refuse to process the applications for reasons given in a judgment dated 12 April 2021 and reported at [2021] EWHC 868 (Admin). The Secretary of State now appeals.
I am in no doubt that the appeal should be dismissed and that the Judge's decision is right for the reasons he gave. I can therefore explain my conclusions relatively shortly. I will set out what the Judge decided, identifying rather than repeating paragraphs in his judgment, and will then address the grounds of appeal.
What the Judge decided
The Judge's analysis begins with a survey of HMPO's policy guidance at [23–35]. There are three relevant policies to assist decision-makers. The most recent editions of these sometimes overlapping documents were issued in September 2020. They concern ‘Authorisation and consent’, ‘Children’ and ‘Vulnerability considerations for passports’. There is also a ‘Country Profile’ in relation to Country X.
Because HMPO considers itself bound by the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague in 1996 (“the 1996 Hague Convention”), the judgment sets out its relevant articles at [36–44] and refers to the accompanying Explanatory Report. Of importance in this case are the provisions of Chapter III relating to ‘Applicable law’, and in particular Article 16 (attribution of parental responsibility is governed by the law of the state of the child's habitual residence) and Article 22 (application of the applicable law provisions can only be refused if it would be manifestly contrary to public policy, taking into account the best interests of the child). The Judge also refers to the UN Convention on the Rights of the Child and to s. 55(1) of the Borders, Citizenship and Nationality Act 2009, whereby any function of the Secretary of State in relation to nationality must be discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. The Secretary of State accepts that dealing with passport applications is a function relating to nationality and has not suggested that the children's current residence in Country X disapplies the duty.
The Judge then sets out the correspondence leading to the litigation and describes the grounds for judicial review and HMPO's response at [45–60]. He summarises the evidence filed by the mother and by Jonathan Wharton, the Passport Policy Lead for HMPO at [61–68]. He addresses competing submissions at [69–95] and sets out his conclusions at [96–134].
His essential findings are as follows:
(1) HMPO was acting in accordance with its internal guidance by refusing to process the passport applications for the children unless there was consent from a person with parental responsibility for them. [101]
(2) The Secretary of State could properly decide that questions of parental responsibility arising in connection with passport applications should be decided in accordance with the 1996 Hague Convention. [103]
(3) In the light of the father's declaration before the court of Country X, HMPO's position, based only on the Country Profile, that the mother lacked authority to apply for British passports was speculative and not rationally sustainable, justifying a quashing order. [120–121]
(4) If, contrary to (3), the father has sole parental responsibility under the law of Country X, HMPO's argument that it has no power to issue passports without his consent is rejected. In particular, and contrary to HMPO's case: (a) when applying Article 16, HMPO is also required to apply Article 22; (b) Article 22 may be applied by administrative authorities as well as courts; and (c) as between divisions of the High Court, decisions under Article 22 can be taken by the Administrative Court and are not reserved to the Family Division. [125–126]
(5) If the law of Country X requires the father to consent to any application for British passports, it would be manifestly contrary to public policy to apply that law in this case, taking into account the best interests of the children. [129]
(6) It is not now open to HMPO to apply the law of Country X because to do so would involve unjustifiable direct discrimination on the basis of sex, amounting to a continuing breach of Article 14 of the European Convention on Human Rights (‘ECHR’), read in conjunction with Article 8, and therefore contrary to s. 6(1) Human Rights Act 1998. The breach must be remedied by applying the law of England and Wales, under which the mother has authority to make the application. [131]
The Judge summarises his conclusions at [133]:
“(a) HMPO erred in refusing to process GA's applications for passports for QA, RA and SA without the consent of their father because:
(i) there was no rational evidential basis for concluding that, under the law of Country X, the father had to consent to the applications in this case;
(ii) it failed to consider whether (if the law of Country X required the father's consent) Article 22 of the 1996 Hague Convention applied; and
(iii) Article 22 did apply and accordingly HMPO was entitled to refuse to apply the law of Country X.
(b) By applying the law of Country X, HMPO acted incompatibly with GA's rights under Article 14 read with Article 8 ECHR and therefore contrary to s. 6(1) of the Human Rights Act 1998. Accordingly, HMPO was and is obliged to apply the law of England and Wales, under which GA had authority to make the applications on behalf of QA, RA and SA.”
A prior question
Before turning to the grounds of appeal, I will clear some ground in relation to the application of the 1996 Hague Convention in relation to passport decisions. The UK signed the Convention in 2003 and ratified it in 2012. (Country X has not signed it.) The Judge concluded at [43] and [103] that at the time when the decision not to process the mother's applications was first communicated, there was no domestic law giving effect to the conflict of laws rules found in Chapter III, but the Chapter was nonetheless binding on the UK as a matter of international law and the Secretary of State could properly decide that questions of parental responsibility arising in connection with passport applications should be decided in accordance with it. It may in fact be the case that the 1996 Hague Convention did have direct effect at that time, as a result of the...
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