Important new ruling on access to British Passports for those subject to nationality deprivation proceedings

In an important decision handed down on  2 June 2021, Mr Justice Morris clarified the circumstances in which it is permissible for the Home Office to decline to issue British Passports to persons subject to deprivation proceedings under section 40 of the British Nationality Act 1981 rejecting a contention by the Home Office that there was a public interest in refusing based on the fact of a past deception.

Background

The Claimant was a British national of Albanian descent who had acquired settlement and then nationality having advanced a false claim to be of Kosovan descent. After some 14 years of residence, steps were taken to deprive the Claimant of his citizenship which it was alleged had been secured by deception. A right of appeal arose in respect of that decision which the Claimant was pursuing at the time of the Judicial Review.

The Home Office had revoked the Claimant’s passport on the basis that his identity was uncertain. On presentation of a new application with evidence confirmatory of the same, the refusal to issue the passport was maintained. Firstly, on the ground that deprivation proceedings were pending, that argument altering into a public interest refusal in due course, and secondly, on the ground the claim was academic there being an alternative remedy of seeking to amend his naturalisation certification (NC) and pursuant to which the inference was a passport could be secured. As a precaution the Claimant took that course post permission grant, surrendering the NC and requesting amendment. The Home Office responded by destroying the same and advising somewhat obtusely that no entitlement to an NC arose as deprivation proceedings had been initiated. 

Findings

The Court held in favour of the Claimant on all matters of substance. 

First, it was found that the Home Office’s approach in its initial decision making in aligning the refusal of a British passport to the consideration and then commencement of deprivation of citizenship was unlawful at least until such time as any statutory appeal against that decision had been finally determined:

84. ... It is unlawful and irrational for the Defendant to deny access to a British passport on the basis of the institution of deprivation proceedings. It is inconsistent with the statutory scheme which allows for a merits-based appeal, the exercise of which suspends the effect of the deprivation process. Secondly, there is no reference in the Defendant’s own policy statements to the initiation of deprivation proceedings as being a ground for refusing to issue a passport. Thirdly, it would lead to the prolonged denial of access to one of the principal benefits of citizenship, namely a passport. Fourthly, it would effectively impose the consequences of a final deprivation order in circumstances where ultimately, following appeal, no such deprivation order might be made [84]

100. ... the fact that the Defendant was considering making such an order is not a ground of itself to refuse to issue a passport.  Nor indeed is the making of such an order.  Under section 40 BNA 1981, the use of false representations does not, without more, render citizenship a nullity, nor does it necessarily lead to deprivation of citizenship.  In any event deprivation of citizenship does not occur until all rights of appeal have been exhausted.

The Court proceeded then to hold that the Home Office’s case that there was a public interest in denying a passport as a consequence of an applicant’s past perpetration of a deception in order to secure status and citizenship was also unsustainable. 

In particular, Morris J rejected the Home Office’s case that the parameters of its Written Ministerial Statement, which described the circumstances in which a passport could be declined, were such as to allow for refusal of persons found to have secured British Citizenship by deception.

119. ... In my view, the act of deception itself cannot be a good ground; otherwise any citizen who has committed any act of dishonesty could be refused a passport on public interest grounds.  That could not fall within the WMS.   Nor do I consider that deception leading to the grant of citizenship is of itself sufficient. In so far as the purpose of such a policy is to punish the Claimant for past deception and to deter others from similar deception to obtain citizenship, then it seems to me that this purpose can equally already be achieved by prosecution for relevant criminal offences.  The law already provides for sanctions for having obtained citizenship (and/or a passport) by deception: through deprivation of citizenship itself under s.40 BNA 1981 and through prosecution for a criminal offence.

More particularly it was found that to allow refusal of a passport on the basis put forward by the Defendant would widen public interest categories set out in the WMS beyond its current terms and in an imprecise and open-ended way [121], the Court having found: that the WMS was enumerated clearly and precisely; that on authority the exercise of the power under the WMS to refuse to issue a passport was intended to be confined to well-defined categories; noting there was no express reference in the Ministerial Statement to “deception” or “obtaining citizenship by deception” as a public interest category [115], and; noting too that there was some force in the suggestion that this sub-category of the “public interest” here should be construed euisdem generis with “cases of terrorism-related activity or other and serious or organised criminal activity" [115].

The Judge further proceeded to reject contentions by the Home Office that amendment of NC was a pre-condition to the provision of a new passport, holding that if an individual's true identity had been established to the Home Office’s status faction the fact that that was at variance with the NC with regard to biographical details (ie dob, place of birth etc) did not prevent issue of a passport.

87. ...First, as a matter of law and practice there is no obstacle to the issue of a passport resulting from a discrepancy in biographical information as between a naturalisation certificate and a passport application.   Secondly, the relevance of the naturalisation certificate is only to establish the holder’s entitlement to nationality; in the present case that was not an issue.   Thirdly, from its practice, the Defendant does not regard anomalies in the date and place of birth details on a naturalisation certificate as bearing on an entitlement to a passport.  

In particular, the Morris J rejected the Home Office contention that a risk of fraud would arise from any mismatch in information between an applicant's actual identity and the detail contained on the Naturalisation Certificate the Home Office’s policy and practice minimising the same in general and avoiding it in the instant case [103].

Importantly the ruling also recognised that it would be contrary to the EU law to deny a passport as this would inhibit free movement, concluding that any such decision would have to be justified by reference to the future risk an individual represented not solely on the fact of their past deception, and would have to meet the threshold test in Regulation 27(5) Citizens Directive so that the individual was describable as a present and sufficiently serious threat affecting one of the fundamental interests of society [127; 142].

Morris J held too that in principle the refusal of a passport was capable of engaging Article 8 ECHR (as well as Article 2 of Protocol 4) [145], a position fixed both on the implications for overseas travel resulting from the same and the fact of exposure to the compliant environment in which a passport was recognised to be a critical device for establishing identity and accessing essential services [145-6]. Proceeding to hold that the decision was required to be “necessary and proportionate”. As a matter of EU and ECHR law, the burden was on the Defendant to establish this and that she had failed to do so in the instant case.