The Queen (on the application of Malvin George Harding) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 358 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
| Docket Number | Case No: CO/254/2016 |
[2017] EWHC 358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Andrew Baker
Case No: CO/254/2016
Rajiv Sharma (instructed by D J Webb & Co) for the Claimant
Catherine Rowlands (instructed by the Government Legal Department for the Treasury Solicitor) for the Defendant
Hearing date: 15 February 2017
Introduction
The Claimant is a young man, now 21, having been born in Lewisham on 13 September 1995. His mother is Mrs Marilyn Harding (née Ademu-John). She was born in Sierra Leone, to Sierra Leonean parents, in 1971. She was not a British citizen or settled in the UK when the Claimant was born. However, she later became, first, settled in the UK under a grant of indefinite leave to remain, on 1 November 2002 when the Claimant was 7, and, second, a British citizen under a naturalisation certificate issued on 3 October 2007, when the Claimant was 12.
In September 1996, Mrs Harding married Allieu Ibrahim Kanu, a British citizen born in Manchester in 1970. The Claimant says that Mr Kanu is his father, first and foremost because Mrs Harding says so, although also by reference to other evidence.
Mrs Harding and Mr Kanu divorced in June 2001. Later that year, in Sweden, she married George Chukuma Harding. To avoid confusion, since by deed poll the Claimant's name is now also Harding, 'Mr Harding' in this judgment will always mean George Chukuma Harding and not the Claimant. Mr Harding was born in Sierra Leone in 1968. It seems he may have become a British citizen in 2000.
By letter dated 27 October 2015 to the Claimant's solicitors, HM Passport Office ('HMPO') communicated its decision that the Claimant's application for a UK passport " will now be withdrawn". That appears to be HMPO's way of describing what was, in substance, a decision to refuse to issue the Claimant with a British passport as sought by him. That final decision letter was the culmination of something of a saga that I shall need to describe in a little more detail. For introductory purposes, it is enough to say that it evidences HMPO's conclusion that it would not issue a passport to the Claimant since it was not satisfied that the Claimant is a British citizen under s.1(1) of the British Nationality Act 1981 ('the 1981 Act'). The Claimant is a British citizen under s.1(1) only if he is Mr Kanu's son. There is more to the letter than that, but that suffices to set the scene, not least because the precise purport of what it said in more detail is one of the disputed questions that I must decide.
If the Claimant is not a British citizen under s.1(1) of the 1981 Act, then on 1 November 2002 he acquired a right to be registered as a British citizen under s.1(3) when his mother became settled in the UK while he was a minor (see s.1(3)(a)). From 3 October 2007, he had that right on the additional ground also that his mother had become a British citizen (s.1(3)(a) again). But that right was conditional upon an application for his registration as a British citizen being made while he was still a minor (see s.1(3)(b)), i.e. on or before 12 September 2013. The benefits of British citizenship by birth under s.1(1) and registered citizenship under s.1(3) are not materially identical. I was referred in particular to the fact that British citizenship under s.1(3), unlike that under s.1(1), is not passed at birth to children born abroad, that being the effect of the words " otherwise than by descent" in s.2(1)(a) of the 1981 Act.
Permission and Grounds
By an Order dated 9 June 2016, Karen Steyn QC, sitting as a judge of the High Court under s.9 of the Senior Courts Act 1981, granted permission to the Claimant to seek a judicial review of the October 2015 decision letter. This is my judgment upon the substantive hearing of the claim. The grounds upon which permission was sought and granted were these:-
i) Ground 1: " that [the] decision to refuse to issue [the Claimant] with a British passport, in the absence of any dispute as to [his] nationality as set out in [the claim], is irrational and Wednesbury unreasonable" (my emphasis);
ii) Ground 2: that the Secretary of State, through the decision to refuse the Claimant a British passport, has acted contrary to policy and the Claimant's legitimate expectations, having regard specifically to his prior treatment as eligible for a passport and the 'Administrative Recognition' section of the Secretary of State's 'Nationality Instructions', i.e. Volume 2, Section 2 of the Nationality Instructions ('the AR Policy'). The focus of Ground 2 is the treatment of the Claimant in the past as having been eligible for UK passports and the prima facie loss upon his 18 th birthday of the right to registration under s.1(3) of the 1981 Act.
In describing Ground 2 above, I refer to the ' prima facie loss' of the right to registration because the burden of the argument for the Claimant is that HMPO, if not satisfied that the Claimant is a British citizen under s.1(1), ought to have treated him as having made an undetermined application for registration under s.1(3). If that is right, and if therefore the Claimant ought to have been treated as having made such an application while still a minor, then in effect he may not have lost his right to registration upon turning 18 after all. The complication arises that within the saga (as I described it in paragraph 4 above), the final passport application made to date, and rejected by the October 2015 decision letter, was made in February 2015 when the Claimant was an adult, but the Claimant seeks to characterise that application as in truth a continuation or re-submission of an application dated 12 September 2013, the day before his 18 th birthday (or possibly even of a prior application dated 9 October 2012).
I should also say a little more about Ground 1. The words I have emphasised in quoting from the Claimant's Statement of Facts and Grounds (paragraph 6(i) above) cannot be taken at face value. Doing so would make it a condition of the claim under Ground 1 that the Claimant show that his claim to British nationality was undisputed (i.e. that HMPO had in fact not disputed that claim). However, it is plain from the development of Ground 1 in the Statement of Facts and Grounds that that is not the contention. Rather, by Ground 1 as there developed, the Claimant contends:
i) Firstly, that his claim to be British under s.1(1) of the 1981 Act was indisputably sound (as opposed to actually not disputed), so that it was irrational or ' Wednesbury unreasonable' not to accept it. In that regard, in particular the Claimant contends it was irrational to require that Mr Kanu attend for interview. That complaint gives rise to one of the disputes over the meaning and effect of the decision letter. The Claimant says it purported to require attendance of Mr Kanu for interview as the only means by which he might satisfy HMPO of his claim to be a British citizen. Ms Rowlands for the Secretary of State accepted that it would be unlawful so to require, but submitted that the decision letter did not go that far.
ii) Secondly, that the Secretary of State, through the decision letter, failed to provide any or any proper explanation as to why the documentary evidence submitted by the Claimant was not regarded as establishing his claim to British citizenship under s.1(1).
It emerged from Mr Sharma's skeleton argument for the Claimant, for the hearing before me, that it would be submitted that the question of his British citizenship under s.1(1) of the 1981 Act, as claimed, which in practice means the question whether he is Mr Kanu's son, was a matter of statutory 'precedent fact' upon which the court could and should conduct its own primary fact-finding, so that the basis for a judicial review under Ground 1 was not (or was not limited to) a review of the decision letter for rationality and Wednesbury reasonableness. In a written Rebuttal and Response lodged for the purpose of the permission application after the Secretary of State had lodged her Summary Grounds of Defence, it was asserted that " The ultimate issue for the court to determine is whether, on the balance of probabilities, the Claimant is the son of Mr Kanu, this having previously been accepted by the Defendant."; but the paragraph in question went on, in substance, to reiterate the Claimant's case as being that there was no rational basis upon which HMPO could have concluded that he was not Mr Kanu's son; and the overall conclusion the court was to be asked to reach was then stated in the following paragraph, namely " that the Defendant's position is perverse and unsustainable". Similarly, references Mr Sharma emphasised in the Statement of Facts and Grounds to the Claimant's position being that on the evidence it is more likely than not he is Mr Kanu's son cannot get the Claimant away from the clarity with which, I think, the case put forward in stating and developing Ground 1 was one of irrationality and the like only.
The new contention – and I do therefore regard it as a new contention – that the court can and should conduct its own, contested, fact-finding hearing, upon which to issue a declaration as to whether the Claimant is Mr Kanu's son, was advanced primarily by reference to the decision of Edis J in R (Rahman) v Secretary of State for the Home Department [2015] EWHC 1146 (Admin). Ms Rowlands submitted, if necessary, that I should follow the approach of Burnett J (as he was then) in R (Liaquat Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin) on the basis that Rahman is either distinguishable or wrongly decided. But her logically prior...
To continue reading
Request your trial