Alake, R (On the Application Of) v Secretary of State for the Home Department

On a passport application raising a question of British citizenship, the applicant bears the burden of proving the relevant facts on the balance of probabilities. HM Passport Office has a broad discretion over the checks and investigations it undertakes. It has no statutory power or general duty to conduct, arrange or fund DNA testing. However, procedural fairness may require proper consideration of a more limited step where the applicant cannot contact a putative parent, HM Passport Office knows the parent’s whereabouts, and DNA evidence may resolve the decisive issue. A failure to consider asking the parent whether he will volunteer for testing may therefore make refusal of the application arguable, particularly where the authority had previously indicated that voluntary DNA evidence would be addressed.

The claimant sought judicial review of HM Passport Office’s third refusal to issue her with a replacement British passport. Her claimed entitlement depended on proving that a British citizen was her father. The alleged father denied paternity, and the marriage certificate relied on by the claimant could not be verified. The claimant argued that it was procedurally unfair to refuse her application without assisting her to obtain voluntary DNA evidence from the alleged father, whose whereabouts HM Passport Office had traced. A separate disclosure ground concerning interview records was no longer pursued.

The issue at the renewed permission stage was whether the procedural-fairness challenge was arguable.

1. Burden of proof. Section 3(8) of the Immigration Act 1971 placed on the claimant the burden of proving that she was the daughter of the alleged father and that he was a British citizen. The applicable standard was the balance of probabilities.
2. HM Passport Office’s powers and duties. HM Passport Office had a broad discretion as to the checks and investigations undertaken when considering a passport application. It had no statutory power to compel a DNA test, no statutory obligation to facilitate one, and no policy or practice of arranging such tests. It could, however, accept DNA evidence supplied by an applicant, as illustrated by regulation 3 of the British Nationality (Proof of Paternity) Regulations 2006.
3. Procedural fairness. In the unusual circumstances of the case, it was arguable that HM Passport Office had acted unfairly by refusing the application without giving proper consideration to asking the alleged father, whose whereabouts it knew, whether he would voluntarily undertake DNA testing. The claimant’s earlier correspondence, the permission-stage observations in the previous proceedings, and HM Passport Office’s own letter indicated that the authority understood voluntary DNA evidence to be an issue requiring consideration.
4. The interview notes suggested that the DNA option was not discussed. Even assuming the decision letter accurately recorded the claimant’s position, the case officer arguably stopped after explaining that HM Passport Office would not conduct, organise or fund testing. The officer should arguably have considered the more limited request that HM Passport Office contact the alleged father and, if rejecting that course, explain why.
5. Permission to proceed was granted. The claimant was permitted to amend her grounds, and expedited case-management directions were proposed. The judgment did not determine the substantive judicial review claim.

• High Court (Administrative Court): Permission had initially been refused on the papers by HH Judge Pearce on 17 March 2020, but the renewed application was granted by Mrs Justice Lang. Time for bringing the claim had been extended.
• Earlier proceedings concerning the passport revocation had resulted in permission being granted on 5 September 2018 and a consent order requiring fresh decisions. Those proceedings formed part of the background to the renewed application.