Matthews, R (On the Application Of) v Secretary Of State For The Home Department

Where entitlement to British citizenship depends on whether an applicant is the person named in a birth record, the court must determine that identity issue for itself on the balance of probabilities. Judicial review principles do not require deference to the Secretary of State on that question. A birth certificate proves the recorded birth event, but does not by itself prove that the applicant is the person named in it. The court must assess all oral and documentary evidence, including the reliability of identity and educational records and the significance of missing evidence from persons able to identify the applicant. A previous administrative acceptance of citizenship, or a trafficking determination uninformed by identity investigation, does not establish identity. The application was dismissed because the claimant had not proved that he was the British-born person named in the birth certificate.

The claimant sought judicial review of the Secretary of State’s refusal on 4 May 2017 to issue him a British passport. The refusal was based on failure to establish that he was Oluwakemi Otitodun Olorunleke Matthews, born in Bradford on 1 June 1976. It was accepted that the person named in the birth certificate was a British citizen under the British Nationality Act 1948 and subsequent legislation. The central issue was whether the claimant was that person. The court considered oral testimony, family and educational documents, previous administrative decisions, and a finding that the claimant had been a victim of modern slavery.

1. The court had to determine for itself, on the balance of probabilities, whether the claimant was the person named in the birth certificate. Applying Harrison v Secretary of State for the Home Department [2003] EWCA Civ 432 at [34], no margin of appreciation or deference was owed to the Secretary of State on that factual issue.
2. The claimant bore the burden of proving that he was the British citizen asserted, pursuant to section 3(8) of the Immigration Act 1971. The statutory nationality provisions established that the person born in the United Kingdom in the circumstances recorded would have acquired the relevant citizenship, but they did not resolve the claimant’s identity.
3. The evidence was insufficient. The birth certificate established the fact of the recorded birth, not that the claimant was the person named in it. The documents relating to the parents and family supported access to family records but did not provide a reliable link between the claimant and the birth identity. The educational records contained discrepancies and unreliable or unexplained features. The claimant’s oral evidence was confused and unconvincing on material matters.
4. The failure to call, or obtain evidence from, the claimant’s sister and cousin was a significant omission because they might have provided direct evidence of his identity from childhood. The prior administrative statement that the claimant was British had been issued in error and was not binding. The modern-slavery finding did not establish identity because it had not involved an investigation of whether the claimant was the person named in the birth certificate.
5. The claimant had not proved on the balance of probabilities that he was the person named in the valid birth certificate. The refusal of a passport was lawful, the judicial review was dismissed, and the claimant was ordered to pay the defendant’s reasonable costs, subject to detailed assessment.