The Queen (on the application of Leonard Gjini) v Secretary of State for the Home Department

Hearing dates: 19 and 26 January 2021

Further evidence and written submissions on 4 and 12 February 2021

Approved Judgment

Introduction

By this application for judicial review, Leonard Gjini (“the Claimant”) challenges the decision of the Secretary of State for the Home Department (“the Defendant”) dated 22 October 2019 (“the Decision”). By the Decision, the Defendant refused to issue the Claimant with a British passport. By an application for permission to amend his grounds, the Claimant further seeks to challenge the subsequent decision of the Defendant dated 6 August 2020 (“the Naturalisation Certificate Decision”). By the Naturalisation Certificate Decision, the Defendant refused to amend the Claimant's naturalisation certificate in order accurately to reflect his date and place of birth.

The facts in summary

The Claimant is a dual British and Albanian national. He was born in Dajc, Lezhe, Albania on 23 July 1980. In 1998 the Claimant entered the United Kingdom and claimed asylum. He claimed asylum on the false basis that he was born in Deqan, Kosovo, Yugoslavia on 16 March 1982. In May 1999 he was granted asylum and indefinite leave to remain. On 29 September 2004 the Claimant was granted a naturalisation certificate in the name of Leonard Gjini. In October 2004 Claimant was issued with a British passport bearing his false date, country and place of birth.

On 13 August 2019 the Defendant wrote to the Claimant indicating that verification checks had shown that he had obtained his British citizenship through fraud and notified him that the Defendant was considering whether to deprive him of his citizenship under section 40(3) of the British Nationality Act 1981 (“BNA 1981”). On 15 August 2019 the Defendant revoked the Claimant's passport.

On 1 October 2019 the Claimant made a fresh application for a British passport. By the Decision, on 22 October 2019, Her Majesty's Passport Office (“HMPO”) refused the Claimant's application, noting that he had obtained his British citizenship by deception and also that there was a mismatch between the date, country and place of birth as it appeared on his naturalisation certificate and his actual date, country and place of birth.

On 22 November 2019 the Claimant apply for permission to judicially review the Decision. On 28 November 2019 the Claimant apply for rectification of his naturalisation certificate. On 20 December 2019 the Defendant notified the Claimant of a decision to deprive the Claimant of his British Citizenship under section 40(3) BNA 1981 (“the Citizenship Decision”). The Claimant has appealed against the Citizenship Decision to the First Tier Tribunal (“FTT”).

At an oral renewal hearing on 10 March 2020, Richard Clayton QC, sitting as a Deputy High Court Judge, granted permission to apply for judicial review.

On 6 August 2020 the Defendant took the Naturalisation Certificate Decision. On 19 December 2020 the Claimant applied to amend his grounds in the proceedings, seeking to challenge the Naturalisation Certificate Decision.

The legal framework

Passports

General

The grant or withdrawal of a passport has always been an exercise of the Royal Prerogative: see R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett) [1989] 1 QB 811 at 817C-D. A passport does not confer citizenship, it is merely evidence of it. Passports are issued at the discretion of the Home Secretary under the Royal Prerogative. They can be withdrawn through the use of the same discretionary power.

Written Ministerial Statement

On 25 April 2013 the then Home Secretary, Theresa May, made a written ministerial statement in the House of Commons (hereinafter ‘the WMS’). The WMS is at the heart of this case. It states, inter alia, as follows:

… “The British passport is a secure document issued in accordance with international standards set by the International Civil Aviation Organisation. The British passport achieves a very high standard of security to protect the identity of the individual, to enable the freedom of travel for British citizens and to contribute to public protection in the United Kingdom and overseas.

There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.

This Written Ministerial Statement updates previous statements made to Parliament from time to time on the exercise of the Royal Prerogative and sets out the circumstances under which a passport can be issued, withdrawn, or refused. It redefines the public interest criteria to refuse or withdraw a passport.

A decision to refuse or withdraw a passport must be necessary and proportionate. The decision to withdraw or refuse a passport and the reason for that decision will be conveyed to the applicant or passport holder. The disclosure of information used to determine such a decision will be subject to the individual circumstances of the case.

The decision to refuse or to withdraw a passport under the public interest criteria will be used only sparingly. The exercise of this criteria will be subject to careful consideration of a person's past, present or proposed activities .

For example, passport facilities may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity .

This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world.

Operational responsibility for the application of the criteria for issuance or refusal is a matter for the Identity and Passport Service (IPS) acting on behalf of the Home Secretary. The criteria under which IPS can issue, withdraw or refuse a passport is set out below.

Passports are issued when the Home Secretary is satisfied as to:

i. the identity of an applicant; and

ii. the British nationality of applicants, in accordance with relevant nationality legislation; and

iii. there being no other reasons ( as set out below) for refusing a passport. IPS may make any checks necessary to ensure that the applicant is entitled to a British passport.

A passport application may be refused or an existing passport may be withdrawn. These are the persons who may be refused a British passport or who may have their existing passport withdrawn:

i. a minor whose journey was known to be contrary to a court order, to the wishes of a parent or other person or authority in whose favour a residence or care order had been made or who had been awarded custody; or care and control; or

ii. a person for whose arrest a warrant had been issued in the United Kingdom, or a person who was wanted by the United Kingdom police on suspicion of a serious crime; or

iii. a person who is the subject of:

• a court order, made by a court in the United Kingdom, or any other order made pursuant to a statutory power, which imposes travel restrictions or restrictions on the possession of a valid United Kingdom passport; or

• bail conditions, imposed by a police officer or a court in the United Kingdom, which include travel restrictions or restrictions on the possession of a valid United Kingdom passport; or

• an order issued by the European Union or the United Nations which prevents a person travelling or entering a country other than the country in which they hold citizenship; or

• a declaration made under section 15 of the Mental Capacity Act 2005.

iv. A person may be prevented from benefitting from the possession of a passport if the Home Secretary is satisfied that it is in the public interest to do so. This may be the case where:

• a person has been repatriated from abroad at public expense and their debt has not yet been repaid. This is because the passport fee supports the provision of consular services for British citizens overseas; or

• a person whose past, present or proposed activities, actual or suspected, are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest.

There may be circumstances in which the application of legislative powers is not appropriate to the individual applicant but there is a need to restrict the ability of a person to travel abroad.

The application of discretion by the Home Secretary will primarily focus on preventing overseas travel. There may be cases in which the Home Secretary believes that the past, present or proposed activities (actual or suspected) of the applicant or passport holder should prevent their enjoyment of a passport facility whether overseas travel was or was not a critical factor.” ( emphasis added)

In an earlier ministerial statement from 1998, Lord Williams of Mostyn stated that “ in practice, refusal and withdrawal of passport facilities to United Kingdom nationals is confined to certain well-defined categories, of which Parliament has...