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British citizen wrongly denied passport and ordered to leave UK

British citizen wrongly denied passport and ordered to leave UK

The case of R (Miah) v Secretary of State for the Home Department [2017] EWHC 2925 (Admin) concerns a British citizen who made an application for a passport, was refused, and ordered to leave the country. He had no in-country right of appeal against the decision.

This case highlights serious issues with decision-making at the Home Office, data sharing between government departments, and the lack of remedies available to applicants who wish to challenge refusal decisions.

Citizen Miah

Mr Miah was originally born in Bangladesh in 1965. His father had naturalised as a British citizen in 1960, and his parents married some time before that. Mr Miah therefore had a right of abode as a British citizen within section 2(1)(a) Immigration Act 1971.

In Mr Miah’s Bangladeshi passport, there appeared a “Certificate of Entitlement to the Right of Abode” stamp, endorsed by the British High Commission in Dhaka in June 2002. This endorsement had been made following an immigration appeal tribunal decision, which confirmed that Mr Miah was entitled to British citizenship as claimed.

Mr Miah entered the UK in 2002. In October 2011, having lived in the UK for almost a decade, he applied for a British passport. Over three years later, following repeated requests for updates to the Passport Office, the application was refused following an interview with Mr Miah conducted under caution.

The Home Office decision

The Home Office rejected the application based on concerns over the validity of the Certificate of Entitlement issued by the High Commission in 2002.

The court heard live evidence from the Home Office officials who had interviewed Mr Miah, and who had investigated the documents presented by him. The decision-maker took the view that the documents had been “falsely doctored”, citing some spelling errors, and other discrepancies between them.

In a somewhat permeating syllogism, the official then assumed that the same documents had been provided in support of the original application, making the 2002 Certificate of Entitlement invalid. That in turn meant that Mr Miah was an illegal entrant (and had been since he first arrived).

This assumption, found the judge, was the “most serious flaw in the [Home Office] case”.

The smoking gun

The official who made this decision confirmed that she had had full access to Mr Miah’s file. Unfortunately, as the decision-maker was not cross-examined on the question, Ms Alexandra Marks, sitting as a deputy High Court judge, could not conclude that the official also had access to the 2002 tribunal decision.

It was left to Mr Miah to scrabble around and produce this 15-year-old document, which he was able to just days before the hearing. The determination of an immigration adjudicator, dated 15 April 2002, found that Mr Miah was entitled to the endorsement based on his parentage, having considered entirely separate evidence to that considered by the Home Office in the refusal of the passport application. As the court held [paragraph 53]:

Significantly, the Tribunal Determination shows no reliance on – or even mention of – any of the documentation that in this case the SSHD has treated as “unreliable”.

The tribunal had already considered the question of entitlement to British citizenship: the issue was res judicata, or already decided.

The Home Office refusal was ruled unlawful and was quashed. The Secretary of State was ordered to pay Mr Miah’s legal costs.

It’s good to talk

The Home Office normally retains significant documents – such as tribunal determinations – on an individual’s file. However, as it was not disclosed in evidence to the court we must assume that, for whatever reason, it was not retained in this case.

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Whilst sloppy filing is regrettable, it is serious matter of concern that in the three years the application was outstanding, the Home Office did not seek to obtain the determination from HM Courts & Tribunals Service. The court observed that:

… it is very unfortunate that SSHD was apparently unaware of the existence of the Tribunal Determination, despite the decision maker in this case having access to Home Office files and databases with information about Mr Miah’s immigration history. It seems that Home Office files and databases were either incomplete, or were inadequately examined, or that there are broader failures of communication between the various limbs of Government such as HM Courts & Tribunal Service, the Foreign & Commonwealth Office and the Home Office.

Information sharing between government departments for immigration purposes is all the rage, but only, it seems, where such information sharing would work against an applicant in any given case. The court held:

The consequence is that Mr Miah’s passport application has now been outstanding for over six years; his Bangladeshi passport has presumably been in the hands of the authorities during the whole of that period and therefore unavailable to him; and through no fault or wrongdoing on Mr Miah’s part, the threat of removal has been hanging over him and his family for over three years. This is highly regrettable.

That the Secretary of State was still arguing her case (described by the judge as “untenable”), and maintained at the hearing that Mr. Miah should have used his out-of-country right of appeal instead of bringing a judicial review, is particularly galling.

Nick Nason

Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.

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