Ozoemene & Ors v Secretary of State for the Home Department (Identity and Passport Service)

A decision whether to issue, withhold or retain a British passport is made under the Royal Prerogative but is reviewable on ordinary public law principles. The applicant must satisfy the decision-maker of entitlement, although the court assesses whether the decision was open to the decision-maker on the material available at the relevant time. Where documents are not obvious forgeries and raise suspicions only, the decision-maker must take all reasonable steps to investigate their authenticity. Previous passport or entitlement decisions are relevant and require cogent reasons for a later contrary view, but they are not conclusive where substantial and well-founded suspicions arise. A refusal based on the supposed impossibility of authentication was quashed because the investigation had not been pursued with sufficient diligence.

The claimants, Nigerian nationals, asserted British citizenship by descent from their naturalised British father. Passports issued to three claimants were seized and retained, while the fourth claimant’s application for a British passport was refused. The Secretary of State relied principally on unresolved doubts about the authenticity of the parents’ marriage certificate, the father’s divorce decree and supporting birth documents.

The claimants relied on an earlier Immigration Judge’s decision and previous grants of passports or certificates of entitlement. The central issue was whether the Secretary of State’s continuing refusal, communicated on 30 July 2012, was unlawful on conventional public law grounds.

1. Outcome. The decision reflected in the letter of 30 July 2012 was quashed and remitted to the Defendant for reconsideration in the light of the judgment and any further evidence.
2. The decision whether to issue or withhold a British passport is made under the Royal Prerogative and is subject to ordinary public law review. The question was whether, on the information available, it was open to the Defendant to conclude that the claimants had not established entitlement.
3. The burden lay on the applicants to satisfy the Defendant of their entitlement. That did not relieve the Defendant of the obligation to take all reasonable steps to investigate documents which were not obvious forgeries but were merely subject to suspicion. The Defendant had not shown that genuine efforts were made to verify the marriage certificate, the fourth claimant’s birth documents or, during the material period, the divorce decree.
4. The later authentication of the divorce decree exposed the inadequacy of the investigation. The Defendant’s stated reason was inability to authenticate the documents, but the evidence did not establish that this inability resulted from a properly pursued investigation. The refusal was therefore Wednesbury unreasonable.
5. The earlier Immigration Judge’s decision was not conclusive because the authenticity of the marriage certificate had not been truly contested in those proceedings. Previous passport and certificate decisions were relevant and required cogent reasons for a later contrary stance, consistently with R (Ali) v Secretary of State for the Home Department [2012] EWHC 3379 (Admin), but they did not conclusively establish entitlement. Legitimate, substantial and well-founded later concerns could justify reconsideration.
6. The claimants were not thereby declared entitled to British passports. The Defendant was required to reconsider the applications. Any offer by the claimants to fund material investigative costs was to be given serious consideration, provided it did not compromise the integrity of the investigation.

This was a first-instance judicial review. The claimants were granted permission to apply for judicial review by Mr David Holgate QC, sitting as a Deputy High Court Judge, on 2 October 2012.