Olayeni, R (on the application of) v Secretary of State for Home Department

Where entitlement to a British passport depends on the applicant’s identity or citizenship, the court may determine that issue as a question of precedent fact on the balance of probabilities. The burden rests on the applicant. A previously issued passport does not necessarily resolve the issue, particularly where later conduct raises substantial identity concerns. The assessment is fact-sensitive and may take account of documentary gaps, inconsistencies, unexplained relationships and deceptive conduct. DNA evidence establishing a biological relationship may support identity evidence but does not, without more, establish the applicant’s claimed identity or entitlement to a passport.

The claimant sought judicial review of the Secretary of State’s refusal to issue a replacement British passport. Her identity had been questioned despite an earlier passport having been issued. The claimant relied on her prior passport, family evidence and DNA evidence showing that she was the biological daughter of the stated mother.

The defendant relied on the absence of evidence of the claimant’s claimed residence in the United Kingdom, inconsistencies in her accounts, her attempt to obtain passports for children who were not hers, and documents suggesting that she might instead be her sister. The central issue was whether the claimant had established, on the balance of probabilities, that she was the person she claimed to be and was entitled to British citizenship and a passport.

1. Disposition. The claim for judicial review was dismissed. The claimant had not established on the balance of probabilities that she was the person she claimed to be or that she was entitled to British citizenship and a replacement passport.
2. A decision whether to issue a British passport is made under the Royal Prerogative. A refusal may be challenged by judicial review on public law grounds. In this case, however, the parties agreed that identity was a question of precedent fact for the court to determine, with the burden on the claimant.
3. The court assessed the documentary evidence and the claimant’s inconsistent accounts of when and how she had travelled between Nigeria and the United Kingdom. The prolonged absence of financial, household, medical, dental and other records materially weakened her case.
4. The claimant’s admitted deception in applying for passports for her sister’s children was highly significant. The unexplained deed poll changing the sister’s name to the claimant’s name, the absence of contact between the sister and her young children, and the unauthenticated death certificate were also material. Taken together, these matters made the claimant’s account unconvincing.
5. The DNA evidence established a 99.9% probability of a mother-and-daughter relationship, but did not establish that the claimant was the particular daughter whose identity she asserted. R (on the application of Liaqut Ali) [2012] EWHC 3379 was of limited assistance because it concerned a different challenge. R (on the application of J Sinha) [2013] EWHC 711 confirmed the balance-of-probabilities exercise undertaken by the court.

This was a first-instance judicial review claim. Permission was initially refused by Mr Justice Collins on 20 November 2012 because the Secretary of State undertook to make a decision. Following the subsequent refusal of the passport application, High Court (Administrative Court) permission was granted by Elizabeth Cooke, sitting as a Deputy High Court Judge, on 2 October 2013. The substantive claim was then dismissed by Mrs Justice Patterson.