SL v The Secretary of State for the Home Department

For the certificate-of-entitlement regime, a person does not hold a passport merely because it was previously issued to them or they remain entitled to obtain one. The ordinary meaning of holding a passport requires possession or control. A person who has lost a passport and cannot retrieve or produce it therefore does not hold it for the purposes of Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006, regulation 6.

Where a lost-passport account was accepted below and no prior notice was given that its truth would be challenged, it is unfair to raise that new factual issue on a paper reconsideration appeal. The decision-maker must determine eligibility by reference to the applicant's actual ability to produce the relevant passport.

The appellant was a child with British citizenship, Malaysian citizenship and a right of abode in the United Kingdom. A British passport issued to her in 2006 was reported lost in July 2009. She applied for a certificate of entitlement because she did not intend to seek a replacement British passport.

The Secretary of State refused the application on the basis that she had a current British passport. An Immigration Judge dismissed her appeal, construing the refusal as based on a failure to provide that passport. Reconsideration was granted. The central issue was whether a passport that had been issued but was lost and unavailable was a passport which the appellant still held under regulation 6 of the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006.

1. Appeal allowed. The Tribunal found a material error of law in the Immigration Judge's approach, set aside that decision and remade it. It directed that a certificate of entitlement be issued.

2. The Immigration Judge had addressed the wrong question. The application was not refused because the appellant had failed to supply a British passport. Her Malaysian passport was sufficient for regulation 4(a). The relevant question under regulation 6 was whether she held a British passport when the Secretary of State refused the application.

3. The ordinary meaning of hold is to possess or control. Entitlement to a passport does not amount to holding it. There was no material distinction between a person who had not applied for a passport and a person who had lost one and did not seek a replacement. Neither could produce the passport to establish a right of abode. Nothing in the statutory context, including the regulation-making power under section 10 of the Nationality, Immigration and Asylum Act 2002, required a different construction.

4. A person may possess a document that is not immediately to hand if they retain control of it. However, a person who has lost a document and cannot retrieve or produce it does not hold it. The appellant therefore did not hold the British passport previously issued to her.

5. The respondent could not fairly advance, without notice, a new challenge to whether the passport had been lost. The Immigration Judge had accepted that fact, the finding was reasonably open to him, and there was no basis to disturb it. The refusal was accordingly not in accordance with the law. The appellant's right of abode was undisputed and no other obstacle to issuing the certificate existed.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on reconsideration, set aside the Immigration Judge's decision for material error of law, and remade the decision by directing issue of a certificate of entitlement.

• Immigration Judge: Dismissed the appellant's paper appeal in a decision promulgated on 30 December 2009.