Grace Omolara Imoleayo Orire-Banjo, R (on the application of) v Secretary of State for the Home Department

In a claim concerning British citizenship and passport entitlement, the legal burden of proving citizenship rests on the person seeking a declaration of citizenship. The evidential burden may nevertheless shift to the Secretary of State where a previously issued passport and an allegation of fraud or deception make it necessary for the Secretary of State to show that the claimant is not the person identified in the passport. The court must determine the citizenship issue as a precedent fact on the balance of probabilities. Passport decisions remain exercises of the Royal Prerogative and are reviewable on conventional public law grounds. Where cogent evidence establishes mistaken identity and deception, revocation and refusal to renew a passport are lawful.

The claimant sought judicial review of the Secretary of State’s revocation of her British passport and refusal to issue a replacement. She also sought declarations that she was a British citizen and that she was the person born in London on 10 June 1963 as Safiyatu Anke Orire.

Another woman, living in Nigeria, had applied for and obtained a British passport using the same root birth certificate and claimed to be the child born in 1963. The central issue was whether the claimant was that child. The court also had to determine how the legal and evidential burdens of proof applied to the citizenship declaration and to the passport decisions.

1. Citizenship declaration. The claimant bore the legal burden because she sought a declaration that she was a British citizen. The question was a precedent fact for the court to determine. The statutory burden in Immigration Act 1971, section 3(8), reinforced that conclusion, although the claim was not strictly a question arising under that Act ([2020] EWHC 3516 (Admin), paras 17–18).
2. Evidential burden. The evidential burden was different. The claimant had held three British passports, creating a strong presumption requiring cogent explanation. Since the Secretary of State’s decisions rested on the assertion that the claimant was not the true holder of the identity, the Secretary of State had to prove the alleged fraud or deception. That approach was consistent with R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74 ([2020] EWHC 3516 (Admin), para 19).
3. Identity. On the balance of probabilities, by a considerable margin, the Secretary of State established that the claimant was not the child born in London as Safiyatu Anke Orire. The court relied on the claimant’s credibility, the evidence supporting Sefiya Tokunbo Abdulkadir’s identity claim, and evidence indicating that the claimant was in fact Omolara Akande, later known as Banjo. The court gave real weight to hearsay material after applying section 4 of the Civil Evidence Act 1995.
4. Passport decisions and outcome. Since the claimant was not the person whose identity supported the passport, the revocation and refusal to issue a fresh passport were lawful. There were plainly cogent reasons under the approach in Liaquat Ali v Secretary of State for the Home Department [2012] EWHC 3379 (Admin). The judicial review application and the requested declarations were dismissed.