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Passports can be issued to British children abroad without abusive father’s consent
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Passports can be issued to British children abroad without abusive father’s consent

Her Majesty’s Passport Office was wrong to insist on signed consent for child passports from an abusive father, the High Court has held in R (GA & Ors) v Secretary of State for the Home Department [2021] EWHC 868 (Admin)

British children refused passports

The claimants were a British mother (GA) and her four British children. The children are all under 16. Their names are anonymised, as is “Country X” where the children live.

GA met a man from Country X, moved there, married him, and had her first three children there. Country X is a patriarchal society in which fathers are recognised as the sole holders of parental responsibility and single women under the age of 40 are treated as legal minors.

The man subjected GA to severe physical and emotional abuse. He admitted causing her bodily harm in the course of criminal proceedings in Country X. During those proceedings he gave written permission for the children to travel with their mother outside of Country X. GA wanted to bring her children to the UK to escape her abuser.

GA applied for British passports for her children. In lieu of signed consent from both parents, she provided an explanation of the situation the family found itself in. The Passport Office declined to process the application until the abusive father’s consent was obtained. GA later submitted the father’s written permission for the children to travel, but the Passport Office decision-maker took the view that it did not specifically provide consent to passports being issued.

Why was consent necessary?

The Passport Office’s position was that consent for the issuance of a passport was required from a person with parental responsibility for the child. Applying the 1996 Hague Convention, parental responsibility is determined by the law of the country where the children are habitually resident: Country X. According to a country profile drawn up internally by the Passport Office, and as mentioned above, Country X gives sole parental responsibility to the father. The mother’s consent was irrelevant. This is unlike the legal position in the UK, where the mother automatically has parental responsibility for the child from birth.

We have covered a number of cases recently in which UK courts have had to consider foreign law: the Shamima Begum Supreme Court case, a case about a British National (Overseas) born in Pakistan, and a SIAC appeal against deprivation of British citizenship. For those, like me, still grappling with how exactly foreign law is looked at in English courts, Mr Justice Chamberlain has your back at paragraphs 105 – 109 of this case. In appellate proceedings such as the SIAC cases, the court must make its own factual findings on foreign law. In judicial review cases which are not “precedent fact” cases, the court is not required to make a factual finding on foreign law. The court is only required to decide whether the decision-maker made a public law error on the material before her. The GA case was a standard judicial review case.

Passport Office found to have acted irrationally

Ultimately the case turned on whether, in light of the father’s letter of consent to travel given during the criminal proceedings, the law of Country X gave GA authority to apply for British passports on behalf of her children (paragraph 120). Chamberlain J found that it did.

The claimants succeeded in establishing that the Passport Office decision was vitiated (to vitiate: to destroy or impair the legal validity of) by a public law error of irrationality. There was no rational evidential basis for concluding that, under the law of Country X, the father had to consent to the passport applications in this case. This finding was enough for the court to issue an order quashing the decision not to issue the passports.

What if GA had lacked the father’s signed consent for the children’s travel?

Judges generally only bother to explore alternative scenarios when they are about to double down on their finding. Chamberlain J does not disappoint. He dives into Article 22 of the 1996 Convention, which permits local law to be ignored if doing so would be manifestly contrary to public policy.

In considering this, he was obliged to take into account the children’s best interests as a primary consideration. Would it be in the children’s best interests to be granted British passports so as to enable them to travel, pursuant to the travel permission already given by the father and endorsed by the court of Country X? The answer was yes.

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Consequently, if the law of Country X required the father to consent to any application for British passports notwithstanding having given travel permission, it would be manifestly contrary to public policy to apply that law in this case. On this basis, citing Article 22, the Passport Office could have simply refused to apply the law of Country X.

Chamberlain J doesn’t stop there, though. He goes on to set out further reasons why applying Country X’s law would be manifestly contrary to public policy:

  • It involves direct discrimination on the basis of GA’s sex.
  • This discrimination is incompatible with her rights under Articles 8 and 14 of the European Convention on Human Rights and cannot be justified as proportionate.
  • International law does not require the Passport Office to discriminate.
  • The Secretary of State had conceded that GA was entitled to rely on her own rights under Article 14 ECHR because she had been in the UK for much of the relevant period, and if her claim was made out she would be entitled to relief.
  • In acting incompatibly with Article 14 read with Article 8 ECHR, the Passport Office acted contrary to section 6(1) of the Human Rights Act 1998 by requiring her spouse’s consent to process her children’s applications.

Assuming the Secretary of State does not appeal, the authorities will now issue the British passports to GA’s children.

Who else does this judgment affect?

This case was extremely fact-specific, but the judgment does offer detailed and valuable guidance on parental consent and on the application of the 1996 Hague Convention. Any women seeking British passports for their children who are coming up against the barriers of a patriarchal society similar to Country X may well benefit from this judgment.

Other interesting titbits

On passports and challenging passport application decisions (paragraph 21)

“Passports are issued under the Royal prerogative. Decisions relating to passport applications can be challenged on the usual public law grounds: R v Secretary of State for Foreign and Commonwealth Affairs ex p. Everett [1989] QB 811“.

On the Home Office’s love of redacting guidance documents (paragraph 19):

“… material that is exempt from disclosure under [the Freedom of Information Act 2000] may also be immune from disclosure in legal proceedings (e.g. because it is irrelevant to the pleaded issues, attracts legal professional privilege or public interest immunity or is subject to a statutory restriction on its disclosure). However, the fact that material is exempt from disclosure under FOIA does not impose a restriction on disclosure of the material in general and does not, on its own, supply a reason to withhold material from disclosure in legal proceedings. Second, where a redacted document is served, the fact that redactions have been made, and the reasons for them, should be made clear, preferably on the face of the redacted document. Documents should never be filed or served in an edited form without making clear that they have been edited”.

In paragraph 65, we learn that the Passport Office actually provided a detailed case-specific witness statement from the policy lead to whom GA’s case was referred (contrast with UK Visas and Immigration, from whom I have never seen such a statement):

“Jonathan Wharton is the Passport Policy Lead for HMPO. He has held this position since 2010. Since 2014, he has been responsible for overseeing hundreds of sensitive child cases where there have been issues with court orders, disputes between parents, concerns of abuse welfare and obtaining documentation”.

John Vassiliou

John Vassiliou is a specialist UK immigration and nationality solicitor at Shepherd and Wedderburn. You can email John with professional enquiries at john.vassiliou@shepwedd.com and you can follow John on Twitter @john_vassiliou1

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