In an important decision handed down on 2 June 2021, the High Court found that a client, even when facing deprivation of citizenship proceedings on deception grounds, may still be entitled to have a British passport in their correct details. The Court also found that our client should be entitled to have their naturalisation certificate endorsed to reflect their correct details.
Our client is a British national of Albanian descent who had acquired settlement and then British nationality having put forward a false claim to be of Kosovan descent. After some 14 years of residence, steps were taken by the Home Office to deprive him of his British citizenship which it was alleged had been secured by deception. The Passport Office took action to revoke his British passport whilst he was travelling abroad, due to the passport containing incorrect details.
Our client pursued a right of appeal against that deprivation decision. However, at the same time, OTB Legal assisted him in applying for a British passport in his correct details.
The Passport Office however refused to issue a British passport to him.
The Passport Office claimed that they could not do this due to the outstanding deprivation proceedings, and also claimed that it was necessary for our client to amend his naturalisation certificate first before applying for a British passport in his correct details.During the course of the judicial review, the Passport Office also gave additional reasons for the refusal, arguing that it would not be in the public interest to issue a passport to him due to his initial deception when he arrived in the UK.
The Court’s Conclusions
The Court held in favour of our client on all matters of substance.
Firstly, the Court found that the Passport Office’s approach in refusing to issue a British passport due to consideration and commencement of deprivation action was unlawful:
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.
This was important as the Court were accepting that just because deprivation action was being pursued, this did not mean that the Passport Office could refuse to give a British citizen a passport in their correct details.
The Court also concluded that relying on public interests grounds was unsustainable. The Court found that the Ministerial Statement which provided guidance as to when a passport could be refused, did not intend to cover the situation of a person having exercised deception in their original citizenship application.
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 Our client 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.
It was found that the Passport Office’s conduct was attempting to widen the scope of the Ministerial Guidance so as to refuse applications on grounds that were not originally envisaged within that guidance.
The decision also concluded that it would be disproportionate under both EU law and Human Rights laws to refuse a passport as well. The denial of a passport makes it more difficult for a British citizen to travel abroad, due to the need to establish their nationality when returning to the UK – the Court concluded that in this case, the refusal to travel impacted on our client and his family and would be disproportionate under Article 8 ECHR.
What happened to the Naturalisation Certificate?
As the passport office had raised the issue of the ‘mismatch’ between the naturalisation certificate and our client’s correct details, he took the step of applying to amend his naturalisation certificate after challenging the Passport Office’s decision.
The Home Office responded by destroying the same and advising somewhat obtusely that no entitlement to a naturalisation certificate arose as deprivation proceedings had been initiated.
The Court concluded as part of their decision that our client had also been entitled to have his naturalisation certificate endorsed to reflect his correct details and ordered the Home Office provide him with the same.
The outcome of the case
The result of the decision was that the Court ordered the Passport Office to issue an endorsed Naturalisation Certificate, containing our client’s correct details, and a British passport in his correct details. The Passport Office have not appealed the decision.
This decision will have a significant impact for other clients who are facing deprivation action on grounds of deception. These proceedings can drag on for years and leave clients without the ability to prove their identity or travel, despite being British citizens. This decision provides reassurance that a person can still obtain a British passport in their correct details, subject to being able to provide their identity, nationality, and there not being other grounds for refusal of a passport and will therefore be able to travel whilst any deprivation action is being considered or challenged.
If you are facing deprivation action and would like assistance with applying for a British passport and endorsed naturalisation certificate, then please do not hesitate to contact Mark Lilley-Tams on [email protected]. Or head over to our website and set up an appointment directly.