How does a person use a legal remedy to prove that they are a British national ((i.e. a British citizen, British overseas territories citizen (BOTC), British Overseas citizen (BOC), British Protected Person (BPP), British Subject, etc.)? Many people consider they already a British national, see my blog post Am I Already a British national? Such a person may want to apply for a UK passport or a certificate that that they are a British national, see my blog post Proving British Nationality. But what happens if the answer is no?
A Full Trial not just a Judicial Review
If the Home Office or Passport Office refuse to accept that a person is a British national, notwithstanding the strength of the application in question, and if they refuse to reverse their decision either by way of review or following a letter before claim, the legal remedy is not simply a High Court judicial review of the reasonableness of the decision alone, but an actual a trial of the question as to whether or not the person is a British national.
A good example of such a trial where live evidence was heard and claimants were cross-examined is the case of R (on the application of Nooh)v Secretary of State for the Home Department EWHC 1572 (Admin). Nooh was a test case as to the principles to be applied to a particular scenario and took place over a number of days. However, ordinarily, a trial of whether or not a person is a British national will take a day or even less, see for example R (on the application of Suleiman)v Secretary of State for the Home Department EWHC 2273 (Admin).
For immigration and nationality law practitioners who are used to bringing judicial reviews against refusals of Home Office decisions, be it against immigration decisions or against refusals of naturalisation or registration as a British citizen, the prospect of a trial can seem daunting. However, preparation for and presenting of such cases is nothing to fear.
The first point to note is that these cases are brought in the High Court and not in the Upper Tribunal (Immigration and Asylum Chamber). Nationality law cases do not follow the rules for the distribution of immigration cases as between the High Court and the Upper Tribunal.
The second point to note is that in a case where the Passport Office refuse a UK passport, running a trial in the High Court’ requires a person (the Claimant) to issue a claim in the Administrative Court under Civil Procedure Rule 54. A claim seeking a quashing order of the refusal of passport facilities requires the use of the Administrative Court, as it is there that quashing orders are available as a remedy. When issuing such a claim, the person may also to seek a declaration that they are a British national by operation of law.
Thereafter, as the case is in the Administrative Court, permission to proceed is required as a preliminary matter; though the bar for obtaining such permission is not unduly arduous. Were a person merely to seek a declaration and not a quashing order, there would be no need to issue in the Administrative Court. A person could issue a claim in the High Court’s Chancery Division or elsewhere in its Queen’s Bench Division, where permission to proceed is not required. With this in mind, the approach of the Administrative Court has been pragmatic on the grant of permission. It is still a necessary hurdle to overleap but a prima facie case on evidence to be tested at trial should suffice for permission to be granted.
The procedure in the Administrative Court provides for the Secretary of State for the Home Department (as Defendant) to file summary grounds of defence to the claim. Thereafter, ordinarily, a judge will consider whether to grant permission on consideration of the papers. Where she refuses permission, the Claimant may seek to have permission question reconsidered at an oral hearing.
Once permission is obtained the Defendant is given time to file detailed grounds of defence and evidence. There is also a need for the Court to give appropriate directions to both the Claimant and to the Secretary of State for the Home Department (as Defendant). The ordinary directions used for judicial review will not suffice as there is to be a trial. The Court will need to make specific directions for the disclosure of material, exchange of witness statements, exchange of skeleton arguments, and so on, in preparation for trial.
During that pre-trial process and timetable there may be a need for an opportunity for each party to inspect the original documents (birth certificates, old passports, etc). Witness lists will need to be prepared and, if witnesses are to give evidence from overseas by video link to the High Court in the UK, then arrangements will need to be made with the High Court for such evidence to be received.
At the trial, the Claimant’s counsel will make an opening statement setting out the case. Thereafter, a Claimant will be expected to give evidence. Other witnesses may include family members, any agent who secured documents such as a birth certificate from a foreign public authority, any expert who has tendered an expert report, and any other person whose evidence has a material bearing on the issue of the Claimant’s asserted British nationality.
Witnesses will give evidence by way of prepared statements, then perhaps by being asked a few questions by the Claimant’s counsel, and then by being cross-examined by the Secretary of State for the Home Department’s counsel. If any of the Claimant’s witnesses are to give evidence in a language other than English, then the Claimant will need to make arrangements in advance for a suitably qualified interpreter to be present. The Secretary of State could also call her own witnesses. If she does so, then the Claimant’s counsel will have the opportunity to cross-examine them.
After the witnesses have been heard, the Defendant’s counsel will make closing submissions, and the Claimant’s counsel will reply with his or her submissions. The hearing is then over. In the result, there will be a trial, perhaps lasting a day or less.
The judge may give an oral judgment immediately after the trial but it is more common for a written judgment to be handed down sometime later. When judgment is given, if the person has succeeded in proving that they hold the claimed form of British nationality, the trial judge will go on to make an declaration to that effect. Such a declaration will bind the Home Office and the Passport Office. Depending on the pleaded case and what has been revealed about any refusal of a passport, the judge may also quash a decision to refuse a passport.
It will take a good deal of work to get a case ready for trial. Anybody who believes that they already hold a form of British nationality should be prepared to take the steps necessary to gather all the documentary evidence upon which they propose to rely, including birth certificates, marriage certificates, etc. and proof of any previous passports used by themselves their parents, or their grandparents. They will need to gather that material together with evidence on how these documents have been obtained, witness statements, and expert evidence as to foreign law. The forms of evidence necessary to win at trial are the same as those when seeking to persuade the Home Office or Passport Office, see my blog post Proving British Nationality.
As noted above, where a person is unsuccessful either on initial application or on some form of review or reconsideration in securing Home Office or Passport Office agreement that they hold a form of British nationality, then the legal remedy lies in the High Court by way of judicial review and trial. A person who has been refused a passport or a certificate confirming that they are a British national should send a letter before claim to the Passport Office or Secretary of State and scrutinise any reply receive before deciding to issue a claim. A failure to follow this pre-action step may result in the court making an adverse decision on the issue of which party it to pay some or all of the costs of the claim.
The process of legal challenge is manageable. But it does require a person to be alive to the fact that it is a nationality case not an immigration case and one which requires a trial of the issues and live evidence and not just a traditional judicial review. A one-day trial of whether a person is a British national by operation of law involves similar or slightly greater costs to a one day judicial review hearing. Depending on an assessment of a person’s means and of the legal merits of the case, there may well be legal aid available for the judicial review/trial.