Fayad, R (on the application of) v Home Office

Earlier receipt of British passports does not remove the Secretary of State’s obligation to give cogent reasons before refusing a later passport. A challenge based on the absence or inadequacy of such reasons may therefore be arguable, even where the applicant’s nationality and identity remain disputed. At the permission stage, the court assesses whether there is an arguable basis for the proposed appeal; it does not finally resolve the underlying entitlement. Where a long delay has occurred, the court may direct an early directions hearing and preserve a route for permission to be set aside if the appeal has no prospect of success.

The appellant claimed to be a British overseas citizen entitled to a British passport. He said that his birth in Sierra Leone in 1961 gave him the relevant status, which was later converted by the British Nationality Act 1981. After receiving several British passports, he faced renewed scrutiny because of concerns about the official who issued his first passport, discrepancies in passport copies, and questions about his identity and entitlement.

The Administrative Court dismissed his judicial review claim on 24 July 2014. The appellant sought permission to appeal, arguing that the Secretary of State had not produced sufficiently cogent reasons for refusing a full passport. The central issue was whether the proposed appeal had an arguable basis.

Permission and arguability. The Court of Appeal identified an arguable basis for the proposed appeal. The issue was whether the Secretary of State had produced the cogent reasons required before refusing a subsequent passport to a person who had previously received British passports.

1. The Administrative Court had relied cumulatively on concerns about the allegedly corrupt issuing official, discrepancies in passport photocopies, the appellant’s lack of clarity at interview, and evidential deficiencies. It concluded that those matters justified refusal of a new full passport.
2. The court noted the principle stated in Liaquat Ali v SSHD [2012] EWHC 3379: after previous British passports have been issued, the Secretary of State must advance cogent reasons for refusing a subsequent passport. The appellant’s arguments that there was no evidence of corruption, no application form from 1994, and no firm evidential basis for the identity concerns made the proposed appeal arguable.
3. The court did not determine the appellant’s nationality, identity, or ultimate entitlement to a passport. It directed an early directions hearing because of the substantial delay. The case was reserved to Lord Justice Jackson. If further investigation showed that the appeal had no prospect of success, the Respondent could apply to set aside permission under rule 52.9(1)(b) of the Civil Procedure Rules.

• Court of Appeal (Civil Division) — On 15 January 2016, the court found an arguable basis for the proposed appeal, directed an early directions hearing, and reserved the case to Lord Justice Jackson.
• High Court of Justice, Queen’s Bench Division, Administrative Court — His Honour Judge McKenna dismissed the judicial review claim on 24 July 2014.