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

A passport refusal is an exercise of the Royal Prerogative and is reviewable on ordinary public law grounds. It is generally lawful for the issuing authority to refuse a passport where it is not satisfied, on the evidence, that the applicant is probably a British citizen. The authority must not, however, impose an inflexible requirement that a particular witness attend an interview if other relevant evidence can rationally be assessed. Where earlier official error may have caused an applicant to lose a time-limited route to citizenship registration, the authority must consider any applicable administrative-recognition policy and explain its decision.

The claimant, born in the United Kingdom in 1995, applied for judicial review of HM Passport Office’s refusal to issue him a passport. His claim to British citizenship depended on whether a British citizen, whom his mother had married after his birth, was his biological father. HMPO treated an interview with that man as necessary and refused the application when he could not attend.

The claimant also argued that, if his claim under section 1(1) of the British Nationality Act 1981 was rejected, HMPO should treat him as having made an undetermined application for registration under section 1(3), under its administrative-recognition policy. The court considered whether a declaration of citizenship could be determined within this judicial review and whether HMPO’s decision was unlawful on ordinary public law grounds.

1. New fact-finding contention. The claimant could not introduce a claim requiring the court to determine his biological paternity as a new ground at the substantive hearing. Permission had been granted for judicial review of the decision-making process, not for a de novo declaration of citizenship. It would be unfair to the Secretary of State to determine the new issue without properly prepared evidence and directions. A fresh claim for a declaration remained open.
2. Applicable nationality law. The claimant’s nationality was governed by the law in force before 1 July 2006. Applying the later amendments to a birth in 1995 would give them retrospective effect. His case therefore fell to be considered under the former provisions concerning legitimation and the statutory relationship of father and child.
3. Judicial review of passport decisions. A passport refusal is an exercise of the Royal Prerogative, reviewable on ordinary public law grounds. It is generally lawful for HMPO to require evidence sufficient to satisfy it, on the balance of probabilities, that the applicant is British. That general position is supplemented by any particular requirements arising from the circumstances, including previous passport issues.
4. Unlawful inflexible requirement. Properly interpreted, the October 2015 letter made an interview with the putative father a condition of any passport being issued. HMPO had instead to assess all relevant evidence rationally. The evidence raised questions about documents naming the claimant’s step-father, but a rational decision-maker would seek explanations from the claimant and his mother, rather than treating an interview with the putative father as the only possible means of establishing nationality. The decision was therefore unlawful and was quashed.
5. Administrative recognition. HMPO had failed to consider the claimant’s request under the administrative-recognition policy. If his section 1(1) claim was rejected, the policy required consideration of whether an earlier passport application should be treated as an undetermined minor’s application for registration under section 1(3), and whether a passport should be issued pending regularisation. The policy did not restrict consideration to applications made during minority or only to urgent travel cases. HMPO was not bound to issue a passport, but it was bound to consider and explain the exercise of its discretion.
6. The 2015 application was remitted to HMPO for reconsideration. HMPO had first to decide whether the claimant was probably British under section 1(1), and, if not, whether administrative recognition and discretionary passport issue were appropriate.

First-instance judicial review in the Administrative Court. The October 2015 HMPO decision was quashed and the matter was remitted for reconsideration.