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

In a nationality dispute arising from a passport application, the court must determine the relevant facts for itself and affords the Secretary of State no margin of appreciation on factual issues. The claimant bears the burden of proving the asserted nationality under section 3(8) of the Immigration Act 1971, applying the balance of probabilities. Documents must be assessed for reliability, including both their form and content, and in the round. The Secretary of State need not prove that a document is forged before it can properly be given little weight. A previous passport is relevant evidence but does not impose an automatic requirement for cogent reasons before a later application can be refused where the court is itself determining identity. On the evidence, including highly probative DNA evidence, the claimant established her identity and entitlement to a British passport.

The claimant sought judicial review of the Secretary of State’s refusal, through HM Passport Office, to issue her with a British passport. She claimed to be Wendy Ngozi Nmai, born in Birmingham on 31 December 1973 to Nigerian parents, and relied on a birth certificate, school and other records, previous passports, witness evidence and DNA evidence linking her to a recognised British passport-holder said to be her full sibling.

The Secretary of State remained unsatisfied as to her identity because of inconsistencies in her account, concerns about documents from Nigeria, the circumstances in which earlier passports had been obtained and the absence of certain childhood records. The central issue was whether the claimant had proved that she was the person named on the British birth certificate.

1. Disposition. The court declared that the claimant was a British citizen, born in Birmingham on 31 December 1973, and entitled on the evidence to a United Kingdom passport. The 15 August 2018 refusal was not quashed. The Secretary of State was directed to take the judgment into account on any further passport application.
2. Fact-finding jurisdiction. Applying R (Harrison) v SSHD [2003] EWCA Civ 432, the court treated the dispute as one in which it had to resolve the issues of fact and law for itself. It therefore afforded the Secretary of State no margin of appreciation on the question whether the claimant was the person named on the British birth certificate.
3. Burden and standard. Under section 3(8) of the Immigration Act 1971, the burden lay on the claimant to prove her asserted British citizenship. The applicable standard was the balance of probabilities, consistent with R (Sinha) v Secretary of State for the Home Department [2013] EWHC 711 (Admin).
4. Documentary evidence. The court applied the approach in MA (Bangladesh) v SSHD [2016] EWCA Civ 175. Reliability had to be assessed by considering both whether documents were properly issued and whether their contents were true, looking at all the evidence in the round. The claimant had to show that reliance could properly be placed on the documents; the Secretary of State did not have to establish forgery before the documents could be given limited weight.
5. Previous passport. The court was not persuaded that R (on the application of Liaquat Ali) v SSHD [2012] EWHC 3379 (Admin) required the Secretary of State to advance cogent reasons whenever a person who had previously held a passport made a later application. The present court was determining identity directly, rather than reviewing only the rationality of the Secretary of State’s decision.
6. Evidence and conclusion. The claimant’s adverse immigration and passport history, doubts about some Nigerian records and missing childhood documents were weighed against the DNA evidence showing a 99.999995% probability of full siblingship with Hanson, whose British birth and passport history were accepted. Viewed cumulatively, the evidence established on the balance of probabilities that the claimant was Wendy Ngozi Nmai.

Consequential applications concerning costs or permission to appeal were to be made within 14 days.