![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Salih, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2539 (Admin) (03 October 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2539.html Cite as: [2018] EWHC 2539 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(sitting as a Judge of the High Court)
____________________
THE QUEEN on the Application of ISMATH BATCHA MOHAMED ![]() | Claimant |
|
- and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 17 July 2018
____________________
Crown Copyright ©
Mr Andrew Henshaw QC:
(A) INTRODUCTION | 1 |
(B) ISSUES AND MAIN APPLICABLE PRINCIPLES | 6 |
(C) EVIDENCE | 17 |
(1) Documents tendered by the Claimant | 17 |
(2) Authenticity and reliability of the documents | 23 |
(3) The Claimant's interview in January 2017 | 31 |
(4) Discussion | 17 |
(D) CONCLUSION | 56 |
(A) INTRODUCTION
(B) ISSUES AND MAIN APPLICABLE PRINCIPLES
i) he is the son of late MS and AB;ii) MS was a CUKC;
iii) he was born after MS became a CUKC; and
iv) MS and AB were married.
"When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is".
"[34] If, therefore, there is a dispute as to whether a person has the legal right under the 1981 Act to the status of a British citizen, that dispute is something which can be resolved in the courts. Such a person can bring proceedings for a declaration that he is entitled as of right under that Act to British citizenship …. In determining that matter the court will itself resolve any issues of fact as well as any issues of law. This is not, in truth, judicial review of a decision taken by any administrative body or person, but the more conventional resolution of a dispute with which the courts are very familiar. That being so, the court would not afford to the Secretary of State any margin of appreciation or degree of deference where the resolution of issues of fact is concerned. It will find the facts for itself according to the evidence before it."
"[14] … it is for the court to decide simply on the balance of probability whether or not the claimant is a British citizen and entitled to a new passport. Therefore, it seems to me that questions of rationality or irrationality do not arise … I have to consider … the evidence before me and reach a conclusion on the balance of probability on those main issues, which is whether the claimant is a British citizen and whether he is therefore entitled to a new passport on that basis."
"[17] 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. …"
and argued that it was plainly open to the Secretary of State to conclude that the Claimant has no entitlement to a British passport. However, as noted above, it was common ground that the underlying question of the Claimant's status is a question of fact/law for the court to decide rather than one requiring a traditional public law approach.
"Standard of proof
The Immigration Appeal Tribunal in Kessori Khatun (4272) held that "the standard of proof applicable to the right of abode, whether that right be dependent on citizenship or relationship, is that of the normal balance of probabilities".
This means that a right of abode or claim to citizenship is established if the evidence that it exists outweighs, however slightly, the evidence that it does not. Any requirement that applicants or claimants produce 'conclusive' evidence of their status, or establish their position 'beyond doubt', sets the standard too high and risks challenge in the courts. You must therefore avoid using such words and phrases."
"Evidence to establish a claim
The following documents may be used to demonstrate that a person born before 1 January 1983 is a British overseas citizen:
• a passport, issued on or after 1 January 1983, describing the holder as a British overseas citizen or a passport, issued before 1 January 1983, describing the holder as a citizen of the UK and Colonies
• the relevant documents related to the person's, their parents', grandparents', spouse's birth, adoption, marriage, death, registration or naturalisation which establish that the person did not, on 1 January 1983, become either or both a British citizen or a British dependent territories citizen
You must also take into account any evidence already held by the Home Office. In the absence of any of the documents listed above you may consider secondary forms of evidence, providing that these can be verified and demonstrate the relevant requirements. If a relevant relationship has been established previously you would not normally need to request evidence of this again, unless there are reasons to doubt the authenticity of the evidence used."
(C) EVIDENCE
(1) Documents tendered by the Claimant
i) A copy of MS's CUKC registration certificate of 3 April 1956 certified by an official at the British High Commission in Kuala Lumpur (the original having apparently been misplaced).ii) The three (original) passports issued to MS describing him as a citizen of the United Kingdom and Colonies.
iii) The Indian passport issued to the claimant.
iv) MS's and AB's marriage registration certificate issued on 24 April 2012 by the Mohaideen Andavar Jumma Masjid (Mosque).
v) MS's death certificate issued on 25 January 2006 by the Kumbakonam District Registrar's Office.
vi) The claimant's birth certificate issued on 5 October 2007 by the Government of Tamil Nadu Kumbakonam Municipality, which gives his name as "M. S. Ismath Batcha", his date of birth as 4 January 1958, and his parents' names as Mohamed
Salih
and Ameena Beevi of East Street, Sholapuram (an address which matches that given on document (iv). The certificate is headed with the details of the Kumbakonam Municipality.
i) MS was a citizen of the United Kingdom and Colonies from 3 April 1956 onwards, including on 4 January 1958.ii) MS's marriage to AB is corroborated by the registration certificate dated 3 April 1956.
iii) MS was in India, where AB lived, around the time the claimant would have been conceived (see the stamp issued at Madras on 14 April 1957, along with a further stamp indicating that MS left India again on 26 May 1957).
iv) The Indian government is satisfied that the claimant was born on 1 January 1958 in Kumbakonam and is the son of MS and AB.
i) Although no clear assertion has been made that they are not genuine documents, the implication is plainly that the defendant has doubts in respect of (iv), (v) and (vi).ii) The reason for those doubts is stated to be the same in respect of all three documents: contemporaneity. However, no proper basis has been put forward on which to doubt the authenticity of the documents, particularly because the documents themselves do not even purport to be contemporaneous.
a) The birth certificate issued on 4 October 2007 by the Kumbakonam municipal council states, "the following information has been taken from the original record of Birth which is in the register for (Local Area) Kumbakonam municipality…".b) The marriage certificate issued on 24 April 2012 by the Mohaideen Andavar Jumma Masjid (Mosque) states that the marriage was registered "at the time of marriage".c) The death certificate was issued on 25 January 2006. It states that the death was officially registered at the Kumbakonam District Registrar's Office on 12 January 2006 but that the information was taken from the "Original Record of Death which is 94 Koranathikaruppur in the Register of 1977".iii) The Defendant's criticisms of documents (iv), (v) and (vi) do not stand up to scrutiny, and there is no good reason to doubt the authenticity of the documents. They appear on their face to be genuine documents obtained from the bodies stated. Those bodies are known and in existence in the relevant areas of Tamil Nadu State. The information in these documents appears to correspond in all material details to the information in documents (iv), (v) and (vi). It also corresponds to a large degree with a number of "unofficial" documents produced by the claimant. The documents which are not contemporaneous do not purport to be so.
(2) Authenticity and reliability of the documents
"Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
(2) At hearings other than the trial, a party may [...] rely on the matters set out in–
(a) his statement of case; or
(b) his application notice,
if the statement of case or application notice is verified by a statement of truth." (my emphasis)
[i] "… the decision to refuse to issue a passport to [the Claimant] was not made based on the documentary evidence alone, nor was it based solely on the information provided by [the Claimant] in his interview. The documentary evidence, the responses to the questions put to [the Claimant] at interview, the results of the verification checks and all previous applications were considered together and a decision was reached based on a balance of probabilities."
[ii] "The Consent Order also requested that HM Passport Office verify the birth and marriage certificates. I should point out that [the Claimant's] applications were not considered on the basis of the birth and marriage certificates alone, or the fact that they were obtained many years after the event. As I have explained above, all documents were considered in addition to the information received at interview and the verification checks conducted by our overseas colleagues. The certificates had already been verified during the previous application processes and at no point did HM Passport Office state that these documents were not genuine.
[iii] "Whilst [the Claimant] may indeed have a possible claim for British nationality, evidence remains outstanding in order for HM Passport Office to be satisfied, on the balance of probability, that a British passport should be issued. As mentioned previously, HM Passport Office has not contended the authenticity of [the Claimant's] birth certificate and it is therefore unclear why you have raised this as an issue.
[iv] You referred to the death certificate of [the Claimant's] father; again your reasons for this are unclear. [The Claimant] registered his father's death 29 years after the event after he ([the Claimant]) obtained a copy of his claimed father's British nationality registration certificate from the Foreign and Commonwealth Office (FCO). There are corrections on the death certificate which are not noted on the translation which render the document unreliable.
[v] Having read through the interview summary notes I accept that a discrepancy did occur regarding [the Claimant's] date of birth. Even so, this does not detract from the main point that in this, and all previous interviews, [the Claimant] has failed to provide an accurate account of his family history and any contemporaneous identity documents whatsoever for the period 1958 to 1996, a total of 38 years.
You have mentioned that [the Claimant] previously attended the interview nearly 5 times and he well versed and acquainted with facts of his claim (sic). This may or may not be the case but again I am unsure of the point you are making, even so, after 5 interviews [the Claimant] was still unable to provide a reasonable account of his family history or answer with any accuracy some of the questions put to him."
[my emphases]
"21 In Tanveer Ahmed v Secretary of State for the Home Department [2002] UK IAT 00439; [2002] INLR 345 Collins J. (President) delivering the judgment of the Immigration Appeal Tribunal, laid down the following approach in the case of contested documents. The Tribunal noted from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain "forged" documents. Some are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are "genuine" to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Courts and Tribunals need to differentiate between form and content i.e. whether a document is properly issued by the purported author and whether the contents are true. It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind.
22 Referring to Rule 39(2) of the Immigration and Asylum (Procedure) Rules 2000 the Tribunal stated that it is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely. There is no legal justification for an argument that if the Secretary of State alleges that a document relied on by an individual claimant is a forgery and the Secretary of State fails to establish this on the balance of probabilities or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. Such an argument is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is whether the document is one upon which reliance should properly be placed. Collins J. continued
"35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is the material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision-maker should look at the evidence as a whole or in the round (which is the same thing).
36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are costs and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office."
23 In conclusion he set out the following principles:
"(1) In asylum and human rights cases it is for an individual claimant to show the document on which he seeks to reply can be relied on.
(2) The decision-maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
(3) Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the basis of abilities to the higher civil standard does not show that a document is reliable. The decision-maker still needs to apply principles (1) and (2)." (at [38])
These principles have been consistently applied since 2002 by courts and tribunals in a host of decisions."
"2.12.3 Quoting a researcher on Indian criminal justice issues, the Immigration and Refugee Board (IRB) of Canada stated in a report of 5 May 2014:
'[M]ost identity documents in India can be faked and/or obtained by fraudulent means and can be "custom ordered in most parts of the country".
'[F]raudulent medical records, school records and police records are prevalent in India.
'Political party cards are totally fraudulent. Most parties do not have any documentation of their members and generally do not issue membership cards. Some local units may provide one to their local members but there is little authenticity of these.'
2.12.4 Transparency International (India) also indicated to the Canadian IRB that fraudulent identity documents are commonly available in India. The IRB added: 'Media sources report of several scams in which passports were able to be procured with the submission of fake identity documents.' Although Unique Identity (UID) numbers and 'Aadhaar' identity cards rely on relatively advanced technology and biometrics, there have also been some reports in the press of these being fraudulently obtained." (footnotes omitted)
(3) The Claimant's interview in January 2017
"Who completed the application form? I filled in the form but advise sought from Advocate; the name of the advocate is SAHABUDEEN HAMID; he lives in the UK.
Money paid? So far I have not paid any thing
How do you know him? His house is near to my house nearly 8 kms; he lives in Solapuram, I live in Kornatakapur.
Has he given you any documents for your application? Yes.
What documents? He has not given any documents, I just took advise.
What advise you take from him? He suggested only for the documents.
Did he arrange any documents? No"
The interviewer does not appear to have asked the Claimant to explain the apparent inconsistency between the fourth and fifth answers quoted above, which may therefore have resulted from an initial misunderstanding. I do not consider it possible to draw any inference from this somewhat confused exchange about the Claimant's credibility.
"Are you aware of the details given on the form? Yes I am aware.
Have you read the form? Yes.
You read it on your own or some body narrated it to you? The advocate read the form and narrated to me.
Are you able to write English? Yes I am able.
Education qualification – I am Xth passed."
"How did you get your BC? It was issued by the local municipality.
…
When did you get copy? I do not know.
Certificate says 2007 issue? May be
If you got a copy in 2007, what documents provided? I gave my school documents and date of birth."
"Is this the first time you are applying for a British passport? Yes it is.
Have you applied before? No.
Has your application ever been refused? I applied in 2005, 3 times it got rejected.
What was the reason for refusal? Documents were not complete – family photos were not there.
Have you submitted this time? No
Have you ever been interviewed? Two times – in 2006 and 2014"
"What was the reason of father's death? He died in India, he died due to old age and not well. My father previously lived in Malaysia.
When did he travel to Malaysia? I do not know.
His occupation? Working shops
How long he lived in Malaysia? He went before 1948, so I do not know actually.
When did he return to India? As per his passport he returned in 1956. Then after 1961, he again went to Malaysia and then in 1970s he came back to India."
"Do you have a marriage certificate for your parents? Yes
How did you get it? It was issued by a mosque.
When did you get it and who gave you? It was given by the local panchayat. I do not know when.
Then how did you prove that your parents got married? I did not have to prove it, I just gave my father's name and they gave me the marriage certificate
When was this time? In 2005"
(4) Discussion
i) as noted earlier, the Defendant's letter of 1 December 2017 indicated that the Defendant "verified" both the Claimant's birth certificate and the marriage certificate of his alleged parents, both of which were and are critical documents in relation to his claim;ii) the Defendant's guidance quoted in § 16 above arguably places the primacy focus on documentation as the means by which citizenship should be proven; and
iii) the Claimant has submitted to interview by the Defendant's representatives on several occasions, and these have given the Defendant the opportunity to question the Claimant in detail about his applications and the documents on which he relies. In particular, the record of the interview on 19 January 2017 attached to the Defendant's Detailed Grounds, though not formally evidenced by a statement of truth, was relied on by the Defendant and no point was taken by either party as to its accuracy. In the course of that interview the Claimant answered questions about the circumstances in which he obtained his own Indian passport, his father's documents, his birth certificate, his claimed parents' marriage certificate, and his documents generally.
i) these passports are genuine and reliable, but do not relate to the Claimant's father, despite the fact that the name and visa stamp dates (relating to travel to and from India) which they bear are consistent with the Claimant's case; orii) the passports are false, in the sense either of being forged or inaccurate; or
iii) the Claimant is not in fact Mohamed
Salih
Ismath Batcha at all, and has misappropriated that person's identity.
(D) CONCLUSION