Challenging a decision by the Passport Office to refuse to issue a British passport

As an immigration lawyer I am used to challenging decisions by the Home Office to refuse my non-British clients permission to come to or stay in the UK. However, in recent times, it is becoming increasingly common for me to be instructed to assist British clients with a growing phenomenon – decisions are being taken by the Passport Office to cancel their British passports or to refuse to issue a new passport.

Why are passports being cancelled?

In December 2017, a long running legal battle finally concluded in the Supreme Court, the highest court in the UK. The case of Hysaj and others v Secretary of State for the Home Department [2017] UKSC 82 ended abruptly when, after more than 4 years of Court Proceedings, the Secretary of State conceded that they had been unlawfully treating British Citizens as if they had never been British.

The case involved different individuals with similar circumstances – they had all come to the UK and made claims for asylum between 1998 – 1999, and they had all made the false claim that they were from Kosovo. As a result of those false claims, the individuals concerned were granted refugee status and then applied for and were granted British citizenship under their false details. In this case, the claimants were Albanian nationals although the principle would apply to nationals of any country.

Over time, the Home Office became aware that the nationality of these persons had been acquired through deception. There followed a lengthy period of time whilst the Home Office considered what it would do.

Taking away someone’s citizenship

Eventually, the Home Office decided that everyone who had acquired British nationality through deception in this way, should have their citizenship treated as a ‘nullity’. This was a technical term for saying it was as if those persons had never been British. The result of this was that many nationals who had acquired British citizenship as a result of a false claim made around 1998, started receiving letters around 2012 / 2013 telling them that it was as if they had never been British, and asking for their passports to be returned.

In the Supreme Court case of Hysaj the approach of the Home Office was challenged. It was argued that the proper approach for the Home Office to take was to deprive a person of their nationality rather than treat it as a nullity. There are two very significant differences with a deprivation approach rather than a nullity approach:

  • Firstly, if a decision is taken to ‘deprive’ someone of their nationality they have a right to appeal that decision. By contrast, if a decision is taken to treat someone’s citizenship as a ‘nullity’ then the only option they have is to pursue complex judicial review proceedings;
  • Secondly, if a decision is taken to deprive a person of their citizenship, it is accepted that they have been British from when they were naturalised up until that point, and they would also continue to be British whilst any appeal was ongoing. It is only at the point that their appeal is unsuccessful and they have no further appeal rights that the Secretary of State could then cancel the person’s citizenship.

In December 2017, in a sudden U-turn, the Home Office accepted that they should not have been making ‘nullity’ decisions and instead should have been deciding whether to ‘deprive’ nationality. A lot of individuals who had been written to by the Home Office in 2012 / 2013 and told they were not British, were now told that they had been British all along, but the Home Office were considering taking away that citizenship.

Despite the new approach of the Home Office, it continued to be the case that the Passport Office was actively seeking to cancel the British passports of those caught up, even though it was now accepted that they remained British.

Can a passport be refused to a British citizen?

The decision as to whether a passport should be issued to a British citizen is within the royal prerogative. However, the Government have issued special guidance which explains what factors will be considered when deciding whether a British passport should be issued to someone or not. In essence, three factors will be looked at:

  • Are the Passport Office satisfied as to the identity of the individual?
  • Are the Passport Office satisfied as to the British nationality of the individual?
  • Are there any other reasons for refusing to issue a passport such as whether it is not in the public interest?

The guidance gives clear examples of when it would be appropriate to refuse to issue a passport to someone as a result of the public interest, and makes it clear that it is only in extreme cases that a passport would be refused:

“For example, passport facilities may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity.

This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world.”

When looking at these factors, it is difficult to see on what basis a British passport could lawfully be refused to an individual who continues to be British acquired through deception. Nevertheless decisions are being taken by the Passport Office to refuse to issue passports to Applicants who are being investigated for deprivation purposes. Those decisions are being subject to challenge by way of judicial review and in at least one instance, have resulted in a British passport being issued whilst an appeal against a deprivation decision was ongoing.

What is so important about having a passport?

The Windrush scandal has proved how difficult life can be in the UK if a person is not able to prove their status. Over the years, the government have pushed an agenda of creating a ‘hostile environment’ for those who are unlawfully in the UK. The consequence of this agenda is felt by everyone who is unable to prove that they are lawfully in the UK, including British citizens who do not have a British passport. Proof of status is required to live a normal life, and must be provided to carry out activities such as:

  • Working
  • Travelling
  • Renting a Property
  • Owning a Bank Account
  • Holding a UK Driving Licence

The consequences of a passport being revoked can be enormous, for example impacting on a person’s ability to earn money and provide for their family, or travel to visit a sick relative. Whilst British citizens have the right to do these things, the lack of any documents proving that status can leave individuals in limbo and unable to exercise basic rights.

Common Reasons for refusing a passport

The Passport Office may state that they are unable to issue a British passport to someone if the details do not match those held on the person’s naturalisation certificate. It is possible to apply to amend a naturalisation certificate, and a passport application may be stronger if the Home Office agree to amend it, or you can show that you have tried to amend it but this has been ignored or refused.

How to apply for a British passport if citizenship is being investigated

A British passport application will be stronger if it is prepared so as to meet the guidance. This means:

  • Providing lots of evidence to establish the identity of the Applicant – for example an original Albanian passport, a birth certificate, a family certificate, a driving licence and a national ID card.
  • Proving the Applicant is a British citizen – including copies of previously issued passports and naturalisation certificates; and
  • Showing there are no public interest factors which would justify refusing to issue a passport Evidence should be provided of the negative impact that a refusal to issue a passport would have – for example if a person has lost their employment – or if there is an urgent need to travel.

The stronger the evidence put forward in support of an application, the more likely it will be possible to challenge the decision if a passport is refused.

If you have any questions on this subject or other immigration related topics, please do not hesitate to get in touch with Mark Lilley-Tams of OTB Legal. Mark has assisted a number of clients in deprivation of Citizenship cases and in challenges against the Passport Office where they have refused to issue a British passport and will be able to provide you with clear advice on your own particular circumstances. OTB Legal offer a free initial consultation to discuss your circumstances and provide clear advice on what options are available to you.