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

The issue and renewal of a British passport are distinct from the grant or withdrawal of citizenship. A passport is issued under the Royal prerogative and may be refused or not renewed where identity or nationality is not established. An applicant bears the civil burden of proving entitlement.

Where a passport has previously been issued, the Secretary of State must give substantial, well-founded and cogent reasons for taking a different view on renewal. The earlier decision must be considered fairly and consistently, with all relevant material taken into account. Depending on the circumstances, proportionality and Article 8 ECHR may also require consideration. A previous passport does not ordinarily create a substantive legitimate expectation of automatic renewal.

The claimant sought judicial review of HM Passport Office’s refusal to renew his British passport. The passport had been issued in Jamaica in 2001, although official records showed that a person with the same name and date of birth had died in infancy in 1977.

After the claimant’s criminal prosecution for procuring a passport using false identity details ended with the prosecution offering no evidence, HMPO maintained its refusal. The central issues were whether the earlier passport had to be renewed, whether HMPO had lawfully investigated and evaluated the conflicting identity evidence, and whether the decision engaged legitimate expectation, proportionality or Article 8 ECHR.

1. The refusal was quashed. HMPO was required to reconsider the claimant’s application in accordance with the judgment.
2. The issue of a passport and the determination of citizenship are separate matters. Section 3(9) of the Immigration Act 1971 did not determine whether the passport had been properly issued or ought to be renewed. Nor was passport refusal governed exclusively by section 40 of the British Nationality Act 1981.
3. Passports are issued under the Royal prerogative. The applicant bears the burden of establishing entitlement on the balance of probabilities. Renewal applications may properly require fresh proof of identity and nationality, including periodic security checks.
4. Nevertheless, having previously issued a passport, the Defendant had to advance substantial, well-founded and cogent reasons for refusing renewal. HMPO had taken too narrow a view by treating itself as bound only by official birth and death records. It should have investigated why the British High Commission issued the passport in 2001, considered the material from the criminal proceedings, and examined evidence concerning another person with the same name.
5. The decision failed to comply with rationality, consistency and fairness, and failed to take relevant material into account. The unusual facts required considerable weight to be given to the earlier decision, which could not simply be dismissed as erroneous without proper investigation.
6. EU citizenship proportionality principles identified in Rottmann v Freistaat Bayern Case C135/08 and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 required at least consideration of whether proportionality applied. The potential impact on private life under Article 8 ECHR, and where relevant the children’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, also had to be considered.
7. No substantive legitimate expectation of automatic renewal arose. The earlier passport was time-limited and was not accompanied by a clear, unambiguous and unqualified promise of continuing entitlement. The court also declined to declare the claimant a British citizen because material questions about his identity remained unresolved.