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

British citizenship and entitlement to a British passport are distinct questions. A decision not to deprive a person of citizenship under section 40(3) of the British Nationality Act 1981 does not necessarily establish the person’s identity for passport purposes, nor does it prevent the Secretary of State from withholding a passport on identity grounds.

For an already-issued passport, the applicant bears the burden of establishing entitlement on the balance of probabilities, while the Secretary of State must provide substantial, well-founded and cogent reasons for withdrawal or non-renewal. The two decisions may therefore be legally consistent because they involve different burdens and tests. Issue estoppel will not arise where the earlier citizenship decision gives no clear determination of the factual or legal issue relied upon.

The claimant, a naturalised British citizen, challenged the Secretary of State’s continued retention of his British passport. The passport had been retained after concerns arose about his identity and the absence of reliable evidence concerning his birthplace and travel history.

Earlier, the Secretary of State had considered depriving him of citizenship under section 40(3) of the British Nationality Act 1981, but decided not to do so because the case did not fall within the relevant policy. The claimant argued that this decision made withholding his passport irrational, contrary to the Written Ministerial Statement, and barred by issue estoppel. He also relied on article 8 of the European Convention on Human Rights.

1. Distinct decisions. The decision not to deprive the claimant of citizenship and the decision to withhold his passport were distinct. Deprivation under section 40(3) of the British Nationality Act 1981 required the Secretary of State to be satisfied that fraud, false representation or concealment had been established, with the burden on the Secretary of State. In passport proceedings, the claimant bore the burden of proving entitlement and identity on the balance of probabilities, although substantial, well-founded and cogent reasons were required to withdraw or withhold a passport already issued.
2. No irrationality or issue estoppel. The earlier decision did not disclose why the claimant was not deprived of citizenship. It might have reflected mitigating circumstances or difficulty satisfying the deprivation test. It therefore did not establish that his identity had been accepted, and did not make later reliance on identity concerns Wednesbury unreasonable. Nor had there been a determination of a legal right requiring finality for issue-estoppel purposes.
3. Written policy. The Written Ministerial Statement treated identity and British nationality as separate matters. Establishment of British nationality did not eliminate the need for the Secretary of State to be satisfied as to the applicant’s identity when issuing, refusing or withdrawing a passport.
4. Evidence and proportionality. The Secretary of State had substantial, well-founded and cogent reasons for withholding the passport, including the absence of a Macedonian birth certificate and unexplained passport-stamp discrepancies. The claimant had provided little direct evidence and had not offered himself for cross-examination. Adverse inferences could be drawn if that position continued. Any interference with article 8 rights would in any event have been lawful, justified and proportionate.
5. Order. On the evidence then available the claim would fail. The claimant was nevertheless given seven days from the order to indicate whether he wished to provide evidence, including oral evidence. If he did not do so, the claim would be dismissed; if he did, further directions would be given.

First-instance judicial review in the Administrative Court. Permission was granted by Bourne J on 25 November 2020. The court determined the principal issues but directed that the claimant be given a further opportunity to provide evidence before final dismissal.