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

Refusal to renew a British passport may be unlawful where the original passport was issued after investigation and the Secretary of State cannot provide substantial, well-founded and cogent reasons for changing position. Those reasons must be stated in the decision letter and must address material evidence, including a reasoned tribunal decision relevant to citizenship.

A court may itself determine disputed facts that are legally decisive of a person’s entitlement to British citizenship. The court must resolve the issue on the evidence before it and should not defer to the Secretary of State on the factual question. Where the evidence is insufficient for a proper determination, the issue should be tried with appropriate directions.

The claimant sought judicial review of the refusal by Her Majesty’s Passport Office to renew his British passport. He claimed British citizenship by descent through Somir Ullah, also known as Uddin.

A previous passport had been issued in 2001. In 2006, an Immigration Tribunal had found, after considering DNA evidence and a village enquiry report, that the claimant was Somir Ullah’s son. HMPO later refused renewal, citing unresolved identity and nationality concerns, but its decision letter gave no adequate reasons and did not address the Tribunal’s findings.

The issues were whether the refusal was irrational, whether the court could determine the claimant’s paternity and citizenship entitlement itself, and what procedural directions were appropriate.

1. The passport decision. The refusal to renew the passport was irrational and unlawful. Because the claimant had previously been issued a passport after investigation, the defendant required substantial, well-founded and cogent reasons for refusing renewal. Those reasons had first to be made apparent in the decision letter. The letter failed to identify the factual basis of the refusal.
2. The defendant appeared to have ignored the 2006 Immigration Tribunal decision, the DNA evidence and material documents supplied in December 2012. The Tribunal’s decision was not technically binding, but it was an impartial, reasoned assessment of evidence directly relevant to paternity. It could not rationally be ignored. If the defendant took a different view, a cogent reason had to exist and be articulated.
3. The decision also appeared to rely on allegations that the claimant was an immigration offender, had been subject to deportation efforts and had made an asylum claim. Those matters were either untrue, irrelevant, or matters which fairness required HMPO to put to the claimant before relying on them. They had not been properly investigated or weighed.
4. Citizenship and jurisdiction. Applying Harrison v Secretary of State for the Home Department [2003] EWCA Civ 432, [2001] INLR 284, the court held that it had jurisdiction to determine the disputed paternity question because it was decisive of the claimant’s statutory citizenship entitlement. The observations in Harrison concerning passport applications were not obiter. The court was required to find the facts for itself and owed no factual deference to the Secretary of State.
5. The court declined to grant a declaration immediately because the evidence had not been properly litigated. It directed that the factual issue be determined through appropriate witness evidence, cross-examination, expert evidence and disclosure if necessary. The refusal decision was quashed and the passport application was remitted for reconsideration in light of the outcome of the declaration proceedings.

First-instance judicial review in the Administrative Court. The court quashed the refusal dated 7 August 2013 and directed reconsideration of the passport application after determination of the claimant’s paternity and citizenship entitlement.