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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rahman, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1146 (Admin) (28 April 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1146.html Cite as: [2015] EWHC 1146 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th April 2015

Mr. Justice Edis:

1. On the 5^th March 2014 Mr. Charles George QC, sitting as a Deputy High Court Judge, granted the claimant permission to bring this claim for judicial review. The Claim Form seeks a declaration that the claimant is a British citizen by descent, and a mandatory order requiring the defendant to show cause why a passport should not be issued and/or to issue a British passport to the claimant.

The Decision

2. The decision under review was contained in a decision letter dated 7^th August 2013. The substance of this letter, addressed to solicitors acting for the claimant, is as follows:-

"The provisions of the British Nationality Acts 1948 and 1981 govern British nationality law which is determined by the facts of a person's date and place of birth, and those of their parents. Her Majesty's Passport Office has no discretion on how the law may be interpreted, nor are we able to grant a British passport where the person does not have a claim to British citizenship.

"The main function of Her Majesty's Passport Service is to establish a person's identity and claim to a British passport. Therefore a passport can only be issued where both the applicant's eligibility for a British passport and identity has been established by Her Majesty's Passport Office. This means that where the eligibility of the applicant has been established but not their identity and vice versa, we are unable to issue a passport to that person.

"In your client's case, we have not been able to establish this through the documents provided so his eligibility to British citizenship cannot be confirmed. We are therefore not in a position to issue further passport facilities to Mr. Rahman and his application has been withdrawn."

3. It is not absolutely clear from this letter whether Her Majesty's Passport Office (HMPO) was unable to confirm the claimant's identity, or his eligibility for a British passport, or both. However, when the Detailed Grounds of Resistance to this claim were served, they made the HMPO's position clear by saying that HMPO was satisfied that the claimant's identity had been established but not that his eligibility to British citizenship has been established. This means that HMPO does not accept that the claimant is the son of the man who was granted British citizenship in 1958, Somir Ullah otherwise known as Uddin. The name Ullah appears on the claimant's birth certificate, but the name Uddin was used on his Bangladeshi passport, and his student visa application made in 1994. As will be seen, this discrepancy of names has been apparent to HMPO at various times and has had different outcomes. In the Skeleton Argument served in March 2015 for this hearing, the defendant accepts that if it is established that the claimant is the son of Somir Ullah then he is eligible for British citizenship and, therefore, a passport. That therefore is a factual dispute which underlies this challenge.
4. The application for a passport which was thereby rejected was a renewal application dated 18^th August 2011, and it had been under consideration for almost exactly 2 years by the time it was rejected.

The Letter of Claim

5. The formal letter of claim which preceded the issue of the claim form in these proceedings was dated the 29^th October 2013. It sets out the facts of the case in brief. The claim to citizenship being advanced was based on the claimant's assertion that he is the son of Somir Ullah who obtained British citizenship in 1958 and is therefore British by descent, having been born in Sylhet, Bangladesh. It is pointed out that this claim was accepted by the UK Passport Agency when it issued him with a British passport on 4^th September 2001.
6. The letter also refers to a decision of Mr. C.G. Kelsey, Immigration Judge, sitting in the Asylum and Immigration Tribunal, promulgated on 18^th April 2006. This decision concerned an appeal by the claimant's mother and two sisters against the refusal by the Entry Clearance Officer in Dhaka to grant certificates of entitlement to the right of abode in the United Kingdom on the basis of their relationship to Somir Ullah. The claimant gave evidence to the Tribunal and was the sponsor of the applications being made by his mother and sisters. The Tribunal also considered a village enquiry report by Mr. M.B. Hussain and other documents identified in its written decision. There was DNA evidence before the Tribunal, but which is mentioned in the decision. The reason for the refusal was that the Respondent raised doubts about the identity of the claimant, as sponsor. It appeared that his passport had been granted in 2001 without any referral to the High Commission in Dhaka. Documents held there included a birth certificate relating to the claimant which showed him not to be the son of Somir Ullah, but of Monir Ullah. There was also an application in 1978 when a woman with the same name as the claimant's mother applied to the High Commission for something (the decision does not say what) on her own behalf and that of her son (the claimant) and his brother saying that they were the wife and sons of Monir Ullah. This application appears to have been refused. The claimant was later granted a student visa using a different name and relying on his descent from Somir Ullah, (who was also known as Uddin). The respondent said that there was therefore evidence of deception in the family in 1978 when the application using the name of the claimant's mother was actually made by another woman who claimed to be his mother. Sunaban Khatun, the wife of Monir Ullah, had applied on behalf of two boys who were not her sons. The respondent not surprisingly expressed puzzlement about the motive for lying about the paternity of the two boys if their real father had been granted British citizenship in 1958. The respondent addressed the DNA evidence in this way, according to paragraph 12 of the decision:-

"Although the DNA tests showed that the first Appellant [the mother] was the mother of the Sponsor, this was not regarded as sound grounds for establishing that she was related to the late Somir Ullah as she claimed."

7. It was common ground before the Tribunal that the late Somir Ullah was registered as a British citizen on 22^nd August 1958 and the issue was whether the appellants were, respectively, his wife and two daughters. This, in turn, depended on DNA evidence from tests in 2002 which showed that the three alleged children of Somir Ullah all had the same father. Therefore, if the sisters were descended from him, so was the claimant. The relevance of the village enquiry report was to attempt to establish who that father was. The claimant's evidence was designed to address the deception in 1978 revealed by the documents at the High Commission. He was about 10 years old at that time. He said that he remembered going to Dhaka with his uncle at this time, but he did not know why. It appeared that his uncle had claimed to be his father. He said that by this time his true father's contact with the family had become tenuous, and that they lived in an extended family of which the uncle was the head.
8. The Tribunal Judge set out the evidence before it, and then its findings. He identified the issue as being whether the 1978 application had been based on deception or whether the applications before the Tribunal were deceptive. He found as a fact, relying on the village report of Mr. Hussain, that Monir Ullah (the claimant's uncle) had attempted to bring the claimant to the UK in 1978 pretending that he was his father. He had in fact been the son of Somir Ullah, or Uddin. Since he had the same father as the two appellants who claimed through him also to be descended from Somir Ullah, it followed that they were too and were entitled to succeed. He said this:-

"I also find that the enquiries made in the village and the contents of the report by Mr. Hussain together establish that the Sponsor, Mr. Salikur Rahman, is the son of Somir Ullah and was entitled to his British citizenship and to the passport which he obtained."

9. The letter of claim, having referred to the decision of the Tribunal said that its findings had been unchallenged and were binding on the Secretary of State without good reason. It then set out the circumstances of a visit by the claimant to the passport office on 2^nd December 2011 in the context of his passport renewal application. It recited that he had complained about that visit, saying that he had been referred to as an "immigration offender" and warned that the police had been called. The claimant had involved his MP, to whom HMPO wrote by letter of the 26^th June 2012 and specified long list of documents which as said to be necessary. This had been dealt with by solicitors who then acted for the claimant and there was an exchange of correspondence which resulted in the letter of refusal in August 2013 which I have quoted above.
10. The letter before claim said that the decision was reached after an unfair procedure, was irrational in that it failed to give any weight to the Tribunal decision, and breached the claimant's Article 8 rights.

The Grounds of Claim

11. HMPO did not reply to the letter before claim and these proceedings were issued on 6^th November 2013. The Grounds repeat the heads of challenge identified in the claim form, but set them out in a slightly different way. They may be summarised as follows:-

i) The issuing of the passport in 2001 and its production in support of the renewal application was sufficient to raise a prima facie case in support of the renewal application and placed a burden on the defendant to show to a high degree of probability that its issue had been the result of deception or fraud.

ii) The decision and the process by which it was reached was a breach of Article 8, and by arbitrarily removing his right under section 1 of the Immigration Act 1971 offended against article 15 of the Universal Declaration on Human Rights.

iii) The process adopted was a denial of natural justice. This relates to the details of the history of pre-decision correspondence. It is said that the requirement for documents as eventually expressed by the HMPO in its letter to the claimant's MP was unreasonable because the claimant could not produce all the documents and operated as a fetter on the discretion of HMPO. It is also contended that the process failed to provide the claimant with a fair opportunity to rebut the concerns held by HMPO.

The Grant of Permission

12. The Deputy Judge granted permission because the decision letter did not even mention the finding of fact of the Tribunal that the claimant was entitled to the passport issued to him in 2001. He said that this alone makes the claim arguable. He also said that there was no explanation of the reasons for rejecting the content of a letter written by the claimant's then solicitors of 3^rd October 2012 which set out their response to the request for documentation. Because there had been no acknowledgement of service at the time when permission was granted (he refused an application by the defendant for an extension of time), he directed the claimant to consider the defendant's Detailed Grounds when received in case they disclose anything which, if drawn to the attention of the court might have led to a different outcome. He also directed that if there were to be applications for specific discovery or cross-examination they should be made as soon as possible following service of the Detailed Grounds of Resistance. No such applications have been made by either party.

The Detailed Grounds of Resistance

13. The Detailed Grounds of Resistance were dated 29^th July 2014. They raise the legal issue about the approach of this court to decisions such as that to refuse to issue a passport which I shall address below. Essentially this issue is whether the court makes a factual decision on the evidence because this is a matter of "precedent fact" or whether the ground of review is limited to the usual ground of review, modified because of the issue of the 2001 passport so as to require HMPO to show "cogent reasons" for refusing a renewal application made by a person who had been granted a valid British passport in the past. As to the other matters, the defendant says

i) The Tribunal. The defendant says that the claimant was not a party to those proceedings and the findings merely relate to the fact that he had been issued a passport at the time of that hearing. The issues were different and the proceedings concerned other individuals. No issue estoppel or abuse arises: R (Sinha) v. SSHD [2013] EWHC 711 (Admin).

ii) Article 8. It is said that a decision to refuse a passport does not engage Article 8, unlike a decision concerning citizenship. If it does, it is said that if the defendant satisfied the "cogent reasons" test then there is no breach of Article 8. Finally it is submitted that if a breach of Article 8 is established the remedy should be an order quashing the decision on August 2013 and directing that it be remade: the court, it is said, has no power to issue a British passport.

14. I should record that the issue of delay in these proceedings by the defendant was considered by Master Gidden who granted an extension of time for service of the Detailed Grounds of Resistance after considering submissions about delay dated 18^th December 2014. The defendant accepts that she failed to reply to the pre-action letter within 14 days, that she failed to file an acknowledgment of service within time, and failed to file and serve detailed grounds of resistance within the time stipulated by the Deputy Judge when granting permission. Since he had, when granting permission, expressed dissatisfaction with the delay by the defendant prior to that date, this last failure is particularly unsatisfactory. The defendant cites growing pressure on HMPO to deal with a sharp increase in judicial review claims at the end of 2013. On the basis that an explanation has been provided, Master Gidden granted permission to rely on late-served documents and the defendant has therefore been able to advance her case despite procedural default .

The Evidence Before This Court

15. I have a witness statement by the claimant dated 4^th March 2015 which responds to one by Anjna Patel on behalf of HMPO dated 16^th September 2014. The point is fairly made on behalf of the defendant that the claimant's statement is far too late. I propose to ignore it, except where it accords with findings which I would make in any event on the basis of the documents in the case, the Detailed Grounds of Claim and the witness statement of Ms. Patel.
16. Ms. Patel explains that HMPO is not satisfied that the claimant is the son of Somir Ullah. She sets out the history of the 1998 application for a passport which resulted in the grant of a passport in 2001. The documents had revealed some discrepancies and the claimant was interviewed in London in December 1999 where he explained that the name Ullah and Uddin are interchangeable. He was asked to provide further evidence of his parents' identities and supplied some land deeds. The examining officer was not totally satisfied but decided to issue a passport anyway. In 2002 correspondence was received from the British High Commission in Dhaka requesting confirmation of the claimant's nationality because they were considering entry clearance applications for his "wife and two children". I think this means "mother and two sisters". This careless mistake has caused some unnecessary argument which I shall not address again. The claimant's wife and children are all British citizens in their own right. This correspondence revealed the existence of the 1978 application which I have referred to above when setting out the proceedings in the Tribunal. After reviewing the original decision on the claimant's passport, the senior officer recommended that a full review should be conducted should the claimant re-apply for future passport facilities, such as renewal.
17. When that review was carried out after the 2011 renewal application the difference in names used for Somir Ullah/Uddin in different documents was again noticed. This time, having reviewed documents including some land deeds from Bangladesh, HMPO decided that it was not satisfied that Somir Uddin and Somir Ullah were the same person. The name Somir Miah appears also to have been used for the relevant person in a land deed from 1995. However, the different names used in the land deeds are used for one of the sons of Man Ullah whose first name is Somir. HMPO also placed weight on the fact that the claimant had originally entered the United Kingdom on a student visa using his Bangladeshi passport and says that this was the wrong route if he was entitled to British citizenship. In paragraph 19 she says

"The Claimant's claims to be a British citizen came to light when UKBA were in the process of deporting him."

18. The features of the claimant's case which resulted in the grant of permission and which the defendant was required to address are

i) That the HMPO gave no weight at all to a finding of fact by a Tribunal after hearing evidence adduced after the High Commission's doubts emerged in 2002. Ms. Patel does not assert that the HMPO gave any weight to this decision, merely observing in her paragraph 14 that "The Claimant provided a copy of the decision of the Asylum and Immigration Tribunal dated 18^th April 2006 concerning various appellants (but not the Claimant, although the Claimant is referred to in the decision)."

ii) That HMPO failed to give any weight when considering the documents to the explanations given by the claimant's solicitors in their letter of 3^rd October 2012. This letter asked for proof of posting of a list of documents allegedly provided to the claimant after his interview. HMPO later said that this list had been provided orally at interview. The letter asked for a copy of the notes of that interview because HMPO had asserted that the claimant has said that his father "does not hold a British passport". Given that the whole claim was based on his late father's British citizenship, which is admitted, this seems an odd thing for the claimant to have said. He denied saying it. HMPO later explained that it was not obliged to provide these notes under the Data Protection Act and Ms. Patel does not deal with the matter. There is therefore no evidence before me that the claimant ever said this, and I conclude that he did not. The letter also asked for any information which had come to light since the 2001 passport which may cast doubt upon his entitlement to it. The letter then goes on to deal with documentation. The letter refused to provide some documents "as a matter of principle" because they had already been supplied in the past and they relied on the issue of the passport in 2001. This approach has been debated in correspondence and in submissions before me. Otherwise, the letter explains that some documents do not exist and raises questions about why others were requested. That was responded to by HMPO and a further letter written by the claimant's then solicitors on 12^th December 2012. This appears to enclose documents relating to the claimant's education in Bangladesh which had been requested and which were provided in answer to a request for documents relating to the claimant's time in Bangladesh. Ms. Patel does not explain what weight was given to these, but in paragraph 19 implies that he did not provide them. She does say that, if provided, they are "helpful". Mr. Rahman says he did provide them, as this letter would suggest he did. The letter has been produced, and no letter from HMPO pointing out their omission from the attachments to the 12^th December letter appears in the Trial Bundle. The documents referred to in this letter have been supplied to this court and I have read them without any suggestion that they were not supplied to HMPO with the letter as alleged. They include documents relating to the claimant's education, including School Certificates and a two documents concerning his legal studies all of which pre-date the 1994 student visa application (and any problems which followed it) and which show the claimant's father as "the Late Md. Samir Uddin". I infer therefore (without regard to the claimant's evidence in his witness statement) that these documents were supplied by the claimant to the defendant in December 2012 and it follows from paragraph 19 of the witness statement of Ms. Patel that they were ignored, despite the fact that they were requested because they were capable of being "helpful".

iii) More generally, it was plain from the challenge and the grant of permission that there was an attack both on the reasons for the refusal and the procedure which resulted in it. It is therefore quite remarkable that the evidence of Ms. Patel does not exhibit any note of the reasons for the decision. The decision letter was signed by Hilary Berry and contains no reasons at all. It is not clear from Ms. Patel's statement who actually took the decision or on what grounds. It is not clear either which of the material said to have been decisive was before the UK Passport Agency in 1998-2001 and what is new. The statement is entirely expressed as representing the state of belief of HMPO as at the date of the statement, over a year after the decision. It appears to be based on records. The 2011 review was carried out by an unnamed person referred to as "the officer". Since I do not know what was the actual basis of the decision is, I shall assume that everything not addressed by Ms. Patel was ignored and everything she mentions was taken into account. In view of her inadequate treatment of the Tribunal decision set out at (i) above, I shall treat that as something which was ignored. If she had anything of substance to say about why its carefully expressed and evidence-based conclusions should be disregarded, I am sure she would have said it.

19. I have referred above to the interview on 2^nd December 2011 at which the claimant says he was called an "immigration offender" and was informed that the police had been called. This was raised in correspondence by the claimant, and denied by the defendant in a letter of 2^nd May 2012. No explanation of this is given by Ms. Patel despite the fact that this is not a new allegation, and is recited in the Grounds of Claim. Again, because the defendant has been on notice of the allegation both from the Grounds of Claim and in the correspondence and not because the defendant has not served any evidence contesting it, I shall assume it is true without regard to the recent witness statement of the claimant. Ms. Patel does say that he was of interest to UKVI because of his asylum claim. In his response on 4^th March 2015 the claimant says that he has never made an asylum claim. I pay no regard to that assertion because of its late appearance, but its appearance in Ms. Patel's witness statement presumably means it was regarded by her as a relevant fact. Given the absence of any document which actually records the reasons why this application was refused, I shall simply infer that the refusal was influenced by the belief that this holder of a British passport had made a claim for asylum which was under investigation by UKVI. It would be surprising if a man who had held a British passport since 2001 was of interest to UKVI in 2011 because of an asylum claim which he had made. It appears to be an obvious error, which is confirmed by the fact that it was never mentioned in any correspondence emanating from HMPO during the 2 years while this application was under consideration. On the other hand, if it is true it is plainly something which should have been put to the claimant so that he could deal with it before it was relied on against him. He sets out various answers to the points about his supporting documentation made by Ms. Patel. I do not think it is necessary to set them out in detail because I am not taking this statement into account because of late service. He points out that he has never been the subject of any deportation efforts by UKBA as Ms. Patel appears to believe. He says that HMPO appear to be confusing him with someone else. Again, no explanation of this was placed before me at the hearing and no evidence of any activity in relation to the claimant by UKBA was produced. This is very much in the same category as the supposed asylum claim and I shall treat it in the same way. If UKBA had attempted to deport the claimant, I would expect to see some evidence of that in the HMPO correspondence. Given the apparent errors elsewhere about this claimant, I strongly suspect this was another one. It must, in any event, relate back to 1998. Ms. Patel says

"The claimant's claims to be a British citizen came to light when UKBA were in the process of deporting him."

From paragraph 3 of her statement I know that the claimant made a passport application on 28^th October 1998 based on his claim to British citizenship by descent. I also know that prior to this he had entered the UK on a student visa which did not claim British citizenship, see paragraph 20 and 21 of her statement. Even if problems developed over that visa prior to 1998 which involved UKBA (which existed between 1^st April 2009 and 31^st March 2013) I cannot see how they could be relevant to any suggestion that the 2001 passport had been obtained on a false basis. Ms. Patel does nothing to explain why that conclusion might be wrong, and I therefore proceed on the basis that it is either untrue, or true but irrelevant. I am sure that if it was of any significance it would have been put to the claimant at some stage during the two years during which his application was under consideration.

20. I see no reason to ignore two documents produced by the claimant in his late witness statement because they are both old and the defendant has known of them and their importance for years. First, he produced a letter of 7^th July 1998 in which the Home Office confirmed for the first time that it accepted that Somir Ullah was a British citizen and that subject to proof of paternity the claimant was a British citizen by descent. This confirms that any problems with UKBA must have preceded the date of that letter. Secondly, he produces the expert report considered and accepted by the Tribunal in 2006 as evidence of the fact that the names Ullah and Uddin are interchangeable. It is obviously fair to take this material into account because it is inextricably linked to the Tribunal decision which is referred to in the letter of 12^th December 2012, the letter of claim and the Grounds attached to the claim form. Its substance is set out by Mr. Kelsey in his written decision. The fact that HMPO appears to have ignored it when making the decision in August 2013 and has certainly done so when serving the evidence of Ms. Patel in September 2014 is not a reason why I should do so now.

The Claimant's Submissions

21. These are set out in a Skeleton Argument dated 3^rd March 2015. The first submission is that the application engages the precedent fact jurisdiction of the court whereby the court will determine for itself a dispute concerning the citizenship status of a person if necessary by hearing oral evidence. Reliance is placed on R. (ota Harrison) v. SSHD [2001] INLR 284. Secondly it is submitted that having previously issued a passport to the claimant, the defendant bears an evidential burden to prove the matters stated in the witness statement, relying on R v. SSHD ex p. Obi [1997] 1 WLR 1498. The claimant relies on his entitlement to reasons, R v. SSHD ex p. Everett [1989] QB 811 to refute the suggestion by the defendant that because the issue of a passport involves the Royal Prerogative the fact finding jurisdiction of the court is excluded. He also claims that HMPO is required to provide information to applicants as to areas of concern before a final decision is taken, in sufficient detail to allow them to make representations in rebuttal, R v. SSHD ex p Fayed [1997] 1 All ER 228. In the alternative to his case on the precedent fact jurisdiction, the claimant asserts that in the circumstances of this case he can show that the decision was irrational and should be struck down on public law grounds. In this respect both parties appear to agree that I should take the law from a decision of Burnett J as he then was in R (ota Ali) v. SSHD [2012] EWHC 3379 (Admin) at paragraph 23 who said that the fact of the issue of a previous passport did not of itself reverse the burden of proof, but remained an important factor. He said this:-

"The reality is that having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences."

22. In relation to Article 8, the claimant relies on well known authority to establish that citizenship decisions by the state engage, as an intrinsic aspect of personal identity, Article 8 private life rights. The submission is made in reliance on R. (ota Al-Sweady) v. Secretary of State for Defence [2009] EWHC 2387 that this court should not hesitate to decide hard edged questions of fact where necessary, particularly in claims based on the ECHR. It is submitted that no order for cross-examination is required in this case in order to achieve this because the facts are clear on the written material.
23. Criticisms are made of the procedure adopted by the HMPO which included mistakes, including apparently confusing the claimant with someone else on at least two occasions.

The Submissions of the Defendant

24. The defendant disputes that the "precedent fact" jurisdiction arises and submits that the decision is amenable to judicial review in accordance with established principles. She also relies on R. (ota Harrison) v. SSHD [2001] INLR 284.
25. The defendant argues, by paragraph 18, that certain documents relied upon by the claimant were not before the decision maker. This argument extends to the DNA tests. On 12^th December 2012 the claimant's solicitors sent the Tribunal decision to HMPO. This explains exactly what the DNA evidence says, and what it proves. By paragraph 14 of her witness statement Ms. Patel accepts this. There is no evidence from anyone about whether this information was before the decision maker or not. If it was not, that is, without more, a fatal flaw in the decision. The Skeleton Argument does not distinguish between other documents mentioned by the claimant in his late witness statement which were before the decision maker, or should have been, and those which were not.
26. The defendant also relies on paragraph 23 of the decision of Burnett J in Ali which she submits identifies the sole proper basis on which this court should review a refusal to renew a decision not to renew a passport. She therefore submits that there is no "precedent fact" jurisdiction and the only basis of challenge to her decision is on ordinary judicial review grounds but "cogent reasons" must be shown in these circumstances. Likewise, the previous issue of a passport does not "reverse the burden of proof".
27. In reliance on a decision of Foskett J in Ozoemene v. SSHD [2013] EWHC 2167 (Admin) the defendant submits that the right test in these circumstances is that "substantial and well-founded reasons" are required before doubting the validity of documents such as the first passport. "Substantial and well-founded" seems to me to mean the same as "cogent" and with respect both to Burnett J and Foskett J I do not propose to examine their judgments further. If the only challenge which is sustainable to a decision not to renew a passport is a public law challenge then I will proceed on the basis that, having issued one passport, the defendant would have to show substantial, well-founded and cogent reasons for refusing to renew it otherwise the decision would be irrational and unlawful.
28. There is another conflict of first instance authority between Ozoemene on the one hand and R (ota Sinha) v. SSHD [2013] EWHC 711 (Admin). In Sinha Eder J decided the claimant's entitlement to a passport as a matter of precedent fact on the balance of probabilities. Foskett J declined to approach the present issue on that basis in Ozoemene distinguishing Sinha because it involved a discrete factual question as to the claimant's identity. The defendant submits that I should follow Foskett J.
29. In relation to the question of the proper approach to the Tribunal decision, the defendant submits that the finding of fact by Immigration Judge Kelsey should be ignored because the claimant was not a party to those proceedings, and the issues were different "given that they concerned other individuals". Relying on Sinha she submits that there is no question of issue estoppel or abuse. She says that the fact that she elected not to appeal against an order in relation to other people cannot assist the claimant because appeals are against orders, not reasons.
30. In relation to the Article 8 claim and the remedy, the defendant repeats what she said in her Detailed Grounds which I have set out above.

Discussion and Decision

31. I have no difficulty in concluding that the decision to refuse to renew the claimant's passport in August 2013 was irrational and must be quashed on public law grounds. The defendant has failed to show substantial, well-founded, or cogent reasons for doing so. I have set out the decision letter, so far as relevant, above and observe that it is remarkably uninformative about the basis of the decision. I point by way of contrast to the decision letter in Ali, set out by Burnett J at paragraph 6 of his judgment, which identifies briefly but in detail the factual basis on which that application was refused. Even the letter in Ozoemene, which communicated a decision which was quashed by Foskett J and from which he cites a passage at paragraph 46 of his judgment, is considerably more informative than the present. This has meant that the court has had to try to understand the basis of the decision from what may be an ex post facto reconstruction of someone else's reasoning by Ms. Patel in a witness statement which does not attach any documents which emanate from the decision maker. On the authorities, for obviously sensible reasons, it requires cogent reasons to justify the refusal to renew a passport on the application of the person to whom the original passport was issued after an investigation. In order for those reasons to be adjudged cogent, they must first be made apparent. The decision letter in this case wholly fails to achieve that.
32. This is of particular importance because the evidence relevant to the question which the HMPO decided was tested in proceedings in the Asylum and Immigration Tribunal in 2006. Nothing of substance which is new and adverse to the claimant has been discovered since then. The defendant's predecessor was a party to those proceedings and represented by Mr. K. Kyriacou, a Home Office Presenting Officer. The submissions he presented are summarised at paragraphs 9-13 and 18 of the decision and are very much the same as those said to have motivated the decision maker. On the assumption that it is open to the SSHD to take a different view of the facts from the Tribunal, the authorities show that she must demonstrate cogent reasons for doing so. The key planks of the decision by the Tribunal were the DNA evidence and the village enquiry report. If accepted, as they were by the Tribunal, taken together they prove the claimant's case as to his paternity. What then, is the cogent reason for deciding that the Tribunal was wrong in its assessment of this evidence? I do not know, because the evidence submitted by the defendant strongly suggests that the decision maker simply ignored it. Indeed it is submitted on her behalf that the DNA was not even before the decision maker, a submission which I have addressed above. If it is true that the decision maker did not know of the DNA evidence this is a fatal flaw given the supply of a copy of the written decision by the claimant's solicitors in December 2012. The status of the Tribunal decision is not a technical matter of issue estoppel in which the fact that the parties were not identical might be decisive (or even important). The decision is important because an impartial tribunal has heard evidence and pronounced a reasoned decision based on the factual proposition that the claimant was the son of Somir Ullah/Uddin. The defendant has accepted that it was not an irrational decision because there was no appeal. In Harrison v. SSHD [2003] EWCA Civ 432, [2001] INLR 284 the Court of Appeal decided that Article 6 of the ECHR does not apply to the decision to be taken by the Home Office on a question of citizenship. This is not because such decisions should not be taken fairly, but because they do not involve a "determination" within the meaning of that term used in Article 6. The only body entitled to "determine" such issues is the court, to whom Article 6 does, of course, apply. Where, therefore, an Immigration Tribunal has heard evidence and reached a relevant conclusion it is entitled to respect. The decision is not binding on the HMPO for the technical reasons hinted at in the witness statement of Ms. Patel and the Skeleton Argument of the defendant. It is, however, irrational to conclude that because a decision of the court is not binding it can be ignored. If it is not to be followed a cogent reason for taking that course must exist and be articulated.
33. Further, I have found as a fact that the decision maker was influenced by allegations that the claimant was an "immigration offender", that his claim to UK citizenship first came to light when he was being deported by UKBA, and that UKVI were investigating an asylum claim. UKVI came into being in March 2013 at a time when the claimant was not claiming to be a foreign national entitled to asylum in the UK, but to be a British citizen. These things are either untrue (the probable explanation) or are irrelevant, or, at least, are matters which fairness required HMPO to put to the claimant if they were to taken into account so that he could deal with them. Given that even if all of these suggestions have some truth in them I have not been told what their underlying facts are, the decision maker in relying on them presumably did not know either. In order to amount to "cogent reasons" they would have to be investigated and their substance established so that they could be properly weighed against the decision to issue the passport in 2001 and the Tribunal decision in 2006. There is no evidence that this occurred. Accordingly, the decision maker took irrelevant matters into account.
34. For these shortly expressed conventional public law reasons, I find that the decision to refuse to renew the claimant's passport was unlawful and must be quashed. It must therefore be remitted to the defendant to be reconsidered on a proper basis.
35. That does not, however, resolve this claim. The question is whether it is appropriate for the court to decide on the balance of probabilities whether the claimant is the son of Somir Ullah so that the defendant, on reconsidering the refusal will be bound to do so on that basis. That is a complex question. It raises quite profound issues about the jurisdiction of the court. The claimant seeks a declaration that he is a British citizen by descent under section 31(2) of the Senior Courts Act 1981. It is submitted that this claim is justified by the decision of the Court of Appeal in R (ota Harrison) v. SSHD [2001] INLR 284, paragraphs 31-34. I have referred to this decision above but must now address it in a little more detail. Keene LJ with whom May and Arden LJJ agreed said:-

"30. However, this debate, in my judgment, misses an important point. Article 6(1) does not apply merely because civil rights are involved. The requirement to have an independent and impartial tribunal applies "in the determination of his civil rights and obligations". The word "determination" is of significance. Article 6(1) does not apply, for example, to proceedings which merely constitute a preliminary investigative stage: see Fayed v United Kingdom [1994] 18 EHRR 393 .

31. What is striking about the present case is that, if the appellant could establish the facts as he alleges them to be, he would have a legal right to be a British citizen. The statutory provisions to which I have earlier referred confer on such a person the status of a British citizen automatically. There is no discretion vested in the Secretary of State. One notes a sharp contrast between those provisions, especially section 11(1) of the 1981 Act, and others in the same Act dealing with applications for naturalisation and registration as a British citizen, such as section 6(1) and section 6(2). In both the latter cases the statute requires the Secretary of State "to be satisfied" of certain matters before he may "if he thinks fit" grant a certificate of naturalisation. In those circumstances, the Secretary of State is in the position of making a decision or a determination. Yet the legislation confers no jurisdiction on the Secretary of State to determine in any authoritative way whether a person is a British citizen by virtue of section 11(1) . He is simply not empowered to decide that issue. Nor is there any mechanism or process laid down by statute or regulation whereby he decides whether a person is entitled as of legal right to British citizenship under the 1981 Act. That is perhaps not surprising, because one is here dealing with whether or not that person has a legal right. The contrast is with such processes as registration or naturalisation, where the Secretary of State is empowered by section 41(1)(b) to make provision by means of regulations.

32. In short, in the end it is not for the Secretary of State to determine a person's legal right to citizenship. That is something essentially for the courts to decide, if there is a dispute. It is perhaps worth noting that section 44 of the 1981 Act, which both absolves the Secretary of State from having to give reasons for the grant or refusal of any application, the decision on which is at his discretion, and also purports to exclude appeal to, or review in, the courts in such cases, expressly provides in subsection (3) as follows:

"Nothing in this section affects the jurisdiction of any court to entertain proceedings of any description concerning the rights of any person under any provision of this Act."

That seems to me to be precisely the category into which the facts of this appeal come.

33. Of course, the Secretary of State is very much involved in related matters, such as the issue of passports; and for that reason, as well as for obvious practical ones, it is sensible for any person asserting that he is entitled to the status of a British citizen to raise the matter first with the Home Office. But even on a passport application, the issue of whether a person is a British citizen is a matter of precedent fact where the courts, if there is a dispute, would be prepared to make a decision on the merits.

34. If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship, as both Mr Richmond and Mr Pannick agree. In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it.

35. In my judgment, therefore, the letter sent by the Minister of State which is now under challenge does not determine the appellant's rights, whether those rights were to be seen as civil ones or purely public law ones. It is to be seen more as an expression of the department's view on this particular case or, at the very highest, as some sort of provisional determination. This is perhaps why there is in the legislation no structure of adjudicators or rights of appeal and the like, in the way which is provided for in immigration and asylum cases. The natural place for the determination of legal rights conferred by statute is the court.

……

37. It follows that I see no breach of Article 6(1) in the present case, principally because there has been no determination of the appellant's legal right to citizenship by the Secretary of State. It is, of course, still open to the appellant to bring proceedings in the courts for a declaration in the way I have described. But, given the state of the evidence, which I have set out earlier, for my part, I would not encourage him to do so. It also follows that there is no need for the Secretary of State to establish any tribunal to determine matters concerning a claim to British citizenship."

36. The defendant has sought to distinguish this decision on two principal grounds: first that it is obiter so far as passport applications are concerned, and secondly that the present case is similar to that in Ozoemene where Foskett J declined to take the approach which had been taken by Eder J in R (Sinha) v. SSHD [2013] EWHC 711 (Admin). Although Harrison does not appear to have been cited to Eder J, he decided the issue of fact which determined the citizenship issue on the balance of probabilities on the evidence before him. This was the approach which Harrison suggests would be appropriate.
37. This claimant now seeks a declaration from the Administrative Court that he is the son of Somir Ullah, who was a British citizen. I consider, in reliance on the decision of Harrison, that the court does have jurisdiction to decide the issue of fact in this case and to grant or refuse the declaration accordingly. The remarks of Keene LJ about passport applications in that case are not, in my judgment, obiter. The basis of the decision was that only the court can determine issues of fact which determine a person's right to British citizenship. It follows from that proposition that the right to seek a declaration arises whatever the trigger for wishing to exercise it may be. It arises just as much in the context of a person who has been refused the renewal of a passport as it does in the case of any person whose British citizenship has been put into doubt for any other reason. That was the context in which Keene LJ referred to passport applications. He was seeking to illustrate the breadth of the proposition which was the ratio of the case. I am not convinced either by the attempt to distinguish Harrison because it involved a different kind of decision from the present. It did not. The decision involved in that case was whether Mr. Harrison's father was born on a ship at sea between Bristol and New Zealand, or whether he was born in Mary Street in Adelaide. The issue on this case is who Mr. Rahman's father was. These are issues of fact of a familiar and similar kind. What they have in common is that their outcome is determinative without more of a claim to British citizenship.
38. Judicial Review is not the only way of obtaining a declaration from the High Court although it is one way: CPR 54.3(1)(a). This claim does not involve any public law issues (although it may have public law consequences). It involves one issue, which is a question of fact: who was the claimant's father? Because of the public law challenge to the lawfulness of the decision, judicial review was the right way to start this claim. I do not have to decide whether, in a case where no such issue arises, a claim for a declaration of this kind must or should be started in this way. What I do have to decide is how the claim for the declaration should be decided.
39. If I were to treat the decision of the Tribunal as evidence of the facts on which it relied I would reach the same conclusion as it did. I have read the village enquiry report, but have not heard its author give evidence as did the Tribunal. I have not seen the DNA evidence, but there does not seem to be much issue about its impact. I have, however, not heard the claimant cross-examined. On the contrary, I have excluded the late served statement of the claimant which gives important evidence about the documents on which the defendant would, I expect, seek to rely in attempting to persuade the court that Somir Ullah was not the father of the claimant. Because of the approach which she has taken to the issue, which is to contend that the issue of a passport is a matter of Royal Prerogative and the court should not become involved except in a conventional public law challenge, she has not really sought to litigate the facts. She should have an opportunity to do so, if she chooses. Both parties blame the other for the fact that no orders for cross-examination of witnesses were sought or made prior to this hearing. I do not intend to resolve the issues they raise. However this position has been reached, I am not persuaded that these proceedings are presently appropriately constituted for the resolution of an important factual question.
40. I have concluded that if I were to grant a declaration on the evidence as it stands, I would effectively be delegating the jurisdiction of the High Court to grant declarations to the Tribunal. This is because I am not in a position to scrutinise judicially the evidence on which it relied. It may be that on reflection the parties will agree that a declaration should be granted, rather than incurring the expense of the re-litigation of an issue which has already been publicly aired once. In that event, first the parties and then the court will have to consider what evidence is required in order to enable the court to grant an unopposed declaration, having regard to the principle in Wallersteiner v. Moir [1974] 1 WLR 991.
41. If there is to be a contested hearing on this factual issue, then I will give directions for witness statements, cross-examination where appropriate, and expert evidence if necessary. I shall also give a direction for standard disclosure of documents limited to this issue. This is not because I doubt that the duty of candour has been complied with by the defendant, but because, as I have said, it seems to me that her focus hitherto has been on defending the decision on public law grounds rather than on litigating the truth or falsity of the underlying facts. I also consider that if the claimant has any documents which undermine his case he should come under an express duty to disclose them. I will then direct an oral hearing. This is not an exercise of the power in CPR Part 54.20 to order that the action for the declaration shall continue as if started by a claim form under CPR Part 7. I intend that the trial of this factual issue will occur with oral evidence only when necessary and that it should be managed by the court under the rules relating to judicial review claims which are restrictive in that regard.

Conclusion

42. The decision to refuse to renew the claimant's passport communicated by letter of the 7^th August 2013 will be quashed. The factual issue as to the claimant's paternity will be determined by the court in the manner I have identified above. The defendant will be directed to re-determine the claimant's application for a new passport in the light of the outcome of the application for a declaration. I will seek the assistance of the parties in drawing up the order at a hearing if necessary in due course.