GA & Ors, R (on the application of) v Secretary of State for the Home Department

A passport application for a child must ordinarily be made by a person with parental responsibility, determined under the applicable conflict-of-laws rules. In judicial review, foreign law is treated as a question of fact for the decision-maker. The court reviews whether the conclusion was rationally open on the material available, rather than generally making its own factual finding on fresh evidence.

Where applying the law of the child’s habitual residence would be manifestly contrary to public policy, taking into account the child’s best interests, Article 22 of the 1996 Hague Convention permits that law to be disapplied. The assessment may be made by an administrative authority or the Administrative Court. Direct sex discrimination cannot be justified by a mere liberty under international law to apply discriminatory foreign law.

The claimants were a British mother and her four children, living in Country X. The mother sought British passports for three children born and habitually resident there. HM Passport Office required the father’s consent, relying on its understanding that Country X law gave him sole parental responsibility. The father had previously admitted violence against the mother and had given court-endorsed permission for the children to travel with her.

The claim challenged the continuing refusal to process the applications on public law and human-rights grounds. The central issues were whether HM Passport Office had rational evidence for its conclusion about Country X law, whether Article 22 of the 1996 Hague Convention applied, and whether requiring the father’s consent unlawfully discriminated against the mother.

1. Disposition. The decision refusing to process the three passport applications was quashed. Declarations were to be made reflecting the court’s conclusions, with further submissions invited on the precise form of order and ancillary matters.
2. Passport authority and policy. The power to issue passports derives from the Royal prerogative. The Secretary of State could adopt a general rule that, subject to limited exceptions, a child’s application must be made by a person with parental responsibility. The rule against fettering discretion did not apply to that rule: R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKHL 44.
3. Applicable law. The 1996 Hague Convention applied not only to protective measures but also to parental responsibility generally. Article 16 supplied a conflict-of-laws rule based on the child’s habitual residence. The children were habitually resident in Country X.
4. Foreign law in judicial review. Foreign law was a question of fact. In judicial review, it was initially for the decision-maker to determine it, and the claimant had to establish a public-law error by reference principally to the material before the decision-maker. The relevant question was whether HM Passport Office could rationally conclude that the mother lacked authority to apply for British passports in the particular circumstances. The high-level, unsourced Country Profile supplied no proper evidential basis for that conclusion, especially in light of the court-endorsed permission to travel.
5. Article 22. Article 22 could be applied by an administrative authority and assessed by the Administrative Court. The test was fact-specific and required consideration of whether applying the law of the habitual-residence state would be manifestly contrary to public policy, taking into account the children’s best interests. The evidence of serious domestic abuse, the father’s refusal of consent, and the existing permission to travel satisfied that test. The assessment was limited to whether the children should be able to obtain passports enabling travel under that permission.
6. Discrimination. Requiring the father’s consent imposed direct sex discrimination on the mother. The need to comply with international law could justify the discrimination only if international law required it; a mere liberty to apply discriminatory foreign law was insufficient. The requirement therefore breached Article 14 read with Article 8 ECHR and section 6(1) of the Human Rights Act 1998. The Secretary of State was required to apply the law of England and Wales, under which the mother had authority to make the applications.