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

In a nationality claim, the court must determine for itself, on the balance of probabilities, whether the claimant has the asserted status. The burden remains on the claimant. Documentary evidence must be assessed for both authenticity and reliability, together with the evidence as a whole. A document need not be contemporaneous to be reliable, and the absence of a witness statement or cross-examination is relevant but not automatically decisive. Where apparently genuine official documents materially corroborate parentage, nationality, birth and marriage, they may establish entitlement despite weaknesses in recollection or supporting evidence.

The claimant sought judicial review of the refusal by Her Majesty’s Passport Office to issue him with a British passport. He claimed to be the son of a former citizen of the United Kingdom and Colonies and therefore to have acquired British Overseas citizenship. The defendant had refused the application because it was not satisfied about his identity, entitlement and claimed relationship with a British citizen.

The court considered the statutory requirements for the claimed status, the burden of proof, documentary evidence including birth and marriage certificates and passports, and the claimant’s answers in interview. The central issue was whether, on the balance of probabilities, the claimant had established the facts necessary to show that he was a British Overseas citizen.

1. Applicable approach. The court was required to decide for itself, on the balance of probabilities, whether the claimant was a British Overseas citizen. The issue was one of fact and law, rather than a conventional judicial-review assessment of rationality or deference. The burden lay on the claimant under section 3(8) of the Immigration Act 1971.
2. Requirements for status. The claimant had to establish that he was the son of the claimed parents, that his father was a citizen of the United Kingdom and Colonies, that he was born after his father acquired that status, and that his parents were married. Those requirements followed from sections 5(1), 6(1), 8, 9 and 32 of the British Nationality Act 1948, together with the reclassification provisions of the British Nationality Act 1981.
3. Evidence. Authenticity and reliability were distinct questions. The court assessed the documents in the round, alongside the interview evidence. The defendant’s verification of the birth and marriage certificates materially supported their evidential weight. Their non-contemporaneous dates did not, without more, undermine them. The absence of witness evidence and the opportunity for cross-examination weakened the claimant’s case, but did not determine it.
4. Interview evidence. Several answers were unsatisfactory, including the claimant’s limited knowledge of his father’s life, the absence of family photographs and the failure to produce school records. The court declined to draw adverse inferences from matters that admitted innocent explanations or would have required speculation. The defendant placed excessive weight on those matters.
5. Conclusion. The contemporaneous passports purporting to belong to the claimant’s father, taken with the verified birth and marriage certificates, the claimant’s passport and his interview explanations, established the key facts on the balance of probabilities. The claimant was therefore a British Overseas citizen. The court reserved the question of the appropriate form of relief for further hearing.