The King (on the application of Moynul Islam) v The Secretary of State for the Home Department

Hearing date: 16 May 2024

Introduction and Factual Background

This is a claim for judicial review in respect of the decision of HM Passport Office (for which the Defendant has ministerial responsibility), of 9 March 2023, to refuse the Claimant's application for a British passport. The background is as follows.

The Claimant's paternal grandfather was born in Sylhet, then part of British India, in 1927. He became a British subject in 1947, entered the UK in 1959 and registered as a Citizen of the UK and Colonies (CUKC) (pursuant to the British Nationality Act 1948) in 1964. In 1974 the Claimant's father was born in Sylhet, which was by then part of Bangladesh. He was, pursuant to the 1948 Act, a CUKC by descent. The Claimant's father came to the UK in 1981. Pursuant to the British Nationality Act 1981 he became a British citizen by descent on 1 January 1983.

The Claimant's parents were married in 1994. Thereafter they applied for a spouse visa to enable her to join him in the UK.

The Claimant was born in Sylhet, Bangladesh, on 11 February 1995. A request was thereafter made for him to be added to the visa application for his mother.

In June 1996 the Claimant's father and mother attended an interview at the British High Commission in Bangladesh.

In February 1997 the visa application was granted. On 13 April 1997 the British High Commission in Bangladesh endorsed a Certificate of Entitlement to the Right of Abode (COE) on the Claimant's mother's passport and endorsed the Claimant's name and date of birth on that certificate.

In August 1997 the Claimant and his mother travelled to the UK, where he has lived ever since. The Claimant's mother subsequently became a naturalised British citizen. The Claimant has three younger siblings, all born in the UK, and all British.

On 7 September 2018, having considered and rejected the Claimant's human-rights claim under section 33 UK Borders Act 2007, the Defendant decided to proceed with a decision to deport him pursuant to section 32(5), because of criminal convictions and on the basis that he is not a British citizen and that the right of abode endorsed in his mother's passport had expired when her passport expired in 2000.

The Claimant challenged that decision by appealing to the First-tier Tribunal (Immigration and Asylum Chamber) (FtT). He did so on the basis that his human-rights claim had been unlawfully refused, pursuant to sections 82(1)(b) and 84(2) Nationality, Immigration and Asylum Act 2002 and section 6 Human Rights Act 1998.

Following a hearing on 4 December 2019 at which both parties were represented, and the witnesses included the Claimant's parents, the FtT's written reasoned decision was promulgated on 30 December 2019. The FtT decided that the Claimant was not liable to deportation and allowed the appeal. I will come to the FtT's reasons shortly.

The Defendant did not seek to appeal the FtT's decision to the Upper Tribunal.

In the years that followed, further applications by the Claimant for a British passport and for a new COE were refused.

In January 2023 the Claimant's representatives submitted a fresh application for a British passport, setting out why he claimed to be entitled to one. The attachments included a copy of the decision of the FtT, to which the application itself also referred.

The Defendant's decision to refuse that application was set out in a letter of 9 March 2023 (although service was only effected on 30 March 2023).

That letter stated as follows:

“British nationality is a matter of law and we issue British passports to those that have a claim under the British Nationality Act 1981. This is decided mainly by a person's place and date of birth and their parents' places and dates of birth. From the information you have provided it would appear that you are not a British national.”

The letter stated that a person born outside of the UK will be a British citizen if, at the time of their birth, either of their parents is a British citizen otherwise than by descent, or their British citizen parent was born outside the UK to a parent who was in Crown, or similar, service at the time of their birth.

The litigation in the Administrative Court

Following pre-action correspondence, the Claimant's claim for judicial review began on 13 June 2023. The claim form identified that the substantive relief sought is the quashing of the decision refusing to issue a passport, a declaration that the Claimant is a British citizen, as well as a declaration that the decision was contrary to the Article 8 rights of the Claimant, his partner and daughter.

The original claim form and detailed statement of facts and grounds set out three grounds of challenge, to which I will come. An acknowledgment of service with summary grounds of defence was filed in July 2023. This set out a summary response to each of the three grounds of challenge. A Claimant's reply was filed in August 2023, responding in particular to arguments set out in the summary grounds of defence, by reference to authorities referred to in it, and clarifying aspects of the Claimant's case.

On 5 December 2023, having considered the matter on the papers, Deputy High Court Judge Benjamin Douglas KC permitted the Claimant to rely on the reply and directed that permission be considered at an oral hearing. That hearing came before His Honour Judge Jarman KC on 15 February 2024. Having heard counsel for both parties he granted permission in respect of all three grounds and gave further directions.

On 21 March 2024 the Defendant applied for an extension of time to file Detailed Grounds of Defence from 21 March to 28 March 2024. The Claimant did not object to that application. When dealing with a subsequent application in May 2024 (see below) I formally granted that application, retroactively.

Detailed Grounds of Defence were filed on 28 March 2024. This referred to a settlement proposal tabled the same day by the Defendant, by way of a draft consent order providing for the Claimant, upon invitation, to submit a new passport application without charge and for HM Passport Office to aim to issue a decision within three months thereof. It was contended that, in light of that settlement offer, the claim was now academic.

In further open communications in April 2024 the Defendant's proposal was rejected. The Claimant's team indicated that he would be prepared to contemplate settlement on the basis of being issued a British passport as proof of British nationality. A draft consent order to that effect was tabled by them on 18 April 2024.

These communications did not lead to any proposed agreed draft consent order.

On 10 May 2024 the Defendant applied for the full judicial review hearing, listed for 16 May, to be postponed, and for further directions, including allowing for further detailed grounds of defence to be filed by 30 May 2024. A supporting witness statement was filed on 13 May. A note of objection was filed on behalf of the Claimant on 14 May. I refused those applications for reasons communicated to the parties on 15 May.

Thereafter the Defendant filed and served a (late) skeleton argument. The Claimant had already filed and served a skeleton argument, but then replied with a short supplementary skeleton. The Defendant also filed and served, and sought permission to rely upon, a statement of Barry Richardson of the Passport Casework team.

The FtT's decision

As we shall see, central to this claim is the FtT's decision. I will turn now to its material content.

Mr Chirico of counsel (as he then was) appeared for the Claimant and Ms Gill, a Presenting Officer, for the Defendant.

The FtT first set out its findings about what it called the immigration history relating to the Claimant and his family, covering broadly the same aspects as I have. It then made findings about the Claimant's criminal record and the reasons for the deportation decision.

It then referred to the conduct of the appeal hearing, including noting that there was a detailed skeleton argument from the Claimant's counsel, and that, as well as having a bundle, it heard oral evidence from witnesses including both the Claimant's parents.

Under the heading “Findings and Conclusions” there is then the following section:

“ Is the Appellant a British Citizen?

14. I am satisfied that if the appellant is able to persuade me, on the balance of probabilities, he is a British Citizen the respondent has no power to deport him (s.5 and 6 of the Immigration Act 1971).

15. It is not disputed that the Certificate of Entitlement issued to the appellant and his mother on 13 April 1997 was validly issued. I am satisfied that in accordance with s.3(9) of the Immigration Act 1971 this is evidence that he had a Right of Abode at that time. Mr Chirico submits that this is also evidence that it was accepted that the appellant was a British Citizen at that time, because, simply put, he would not have been issued with the Certificate otherwise. Mr Chirico directed my attention to s.2(1) of the Immigration Act 1971 to corroborate this submission:

‘2 Statement of right of abode in United Kingdom

(1) A person is under this Act to have the right of abode in the United Kingdom if –

(a) he is a British citizen; or

(b)...