The court was asked as to the entitlement of the claimant to a British Passport by virtue of descent from the person he said was his father.
Held: The decision of the IPS whether to issue or to withhold a British passport is one made under the Royal Prerogative which is subject to scrutiny on normal public law principles.
Burnett J said: ‘A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. Parliament has chosen not to accord to someone in the Claimant’s position a right of appeal to any court or tribunal. Before issuing a British passport to an individual the Secretary of State must be satisfied that the person concerned is entitled to it. It is common ground that it is for an applicant for a British passport to satisfy the Secretary of State of his entitlement. That is consistent with section 3(8) of the Immigration Act 1971 . . which provides that in connection with any question which arises under that Act whether or not a person is a British citizen, it is for him to prove it. However, a British passport is not issued pursuant to any power contained in the 1971 Act. It does not raise a question under that Act. Section 3(8) is not directly in play. In this case, the only basis upon which the Claimant asserts a right to a British passport is by descent from [the person he claimed was his father]. The question for the Secretary of State was whether, on the information available to her at the time of her decisions in 2009 and 2011, she was satisfied that the Claimant was the son of [the person he claimed was his father] and thus entitled to a British passport. The question for this court is whether it was open to the Secretary of State to conclude that he was not.’
Burnett J described the approach of the court against the background of the facts which involved the Defendant having previously issued a passport to the Claimant which he was simply seeking to renew when, at the renewal stage, the Defendant declined to do so: ‘The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional public law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test.’
Judges:
The Hon Mr Justice Burnett
Citations:
[2012] EWHC 3379 (Admin)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 18 July 2022; Ref: scu.466301