Passport Office capitulates in face of imminent judicial review

August 5, 2015

Pascal Bates has successfully represented on a public access basis four siblings seeking British passports in the face of sustained prevarication and opposition from British passport authorities. (The account given below has been anonymised to protect the clients’ identities, as two of them still remain underage.)

The four were each born in a Middle Eastern state within a five year period after the marriage of their parents, a British father and a non-British mother. Under sections 2 and 50 of the British Nationality Act 1981 (which applied to them without the amendments of the Nationality, Immigration and Asylum Act 2002 or the British Nationality (Proof of Paternity) Regulations 2006), they were British citizens by descent. As such, they were eligible, on application and proof of identity, for the issue of British passports.

As young children they made no applications. However, having left the place of their birth, where the security situation was not at all good, they settled in a second Middle Eastern state, which granted the father residency for himself and his family, based upon his British passport and skilled employment. Still residing in that state, they made applications for British passports in June 2012. Despite the fact that they enjoyed assistance from British solicitors and supplied voluminous current and historical documentation in support to establish their identities and eligibilities, the British passport authorities passed their file from desk to desk, without determination, for two years, during which time the applicants’ father, who was their main potential witness, died.

In summer 2014 Pascal Bates was instructed (with Jonathan Goldberg Q.C.) under the Bar’s public access scheme which enables clients – in this instance even minors abroad – to access legal assistance from barristers direct, without also instructing solicitors. From the end of July 2014 he pressed the British passport authorities repeatedly for a decision. After some further prevarication, a purported decision was made by those authorities, rejecting the applications on the basis of five ‘concerns’ which were factually unsustainable and which the applicants had not been given a prior opportunity to answer.

Faced with pre-claim letters drafted by Pascal Bates, heralding the imminent launch of judicial review proceedings attacking that purported decision and further documenting why each of the five concerns were mistaken, the British Passport Office abandoned its purported decision and all five of its previous ‘concerns’, but raised a wholly new, sixth issue as to which it wanted yet further documentation before it could come to a decision. Pressure was kept up in correspondence with the Passport Office, which first abandoned and then revived its demands for more documents. Pascal Bates organised a twin prong approach of taking steps to pursue a judicial review whilst also providing the further documents demanded without prejudice to the need to do so or to any such judicial review.

Meanwhile a fresh problem was gathering, namely that, with the father now dead and unable to extend the family’s residency permission in the second Middle Eastern state where the applicants were living, the three applicants still in school were coming under risk of deportation back to the original Middle Eastern state where they had been born, despite that now being an active warzone. Had they had British passports, any deportation would have been far less likely and, had it come to pass, would have been to Britain and not the warzone state.

Faced with the issue, without further notice and at any time after Monday 27 July 2015, of expedited judicial review proceedings complaining of the lack of determination as a ‘failure to act’ and seeking declarations as to British citizenship for the four applicants, and following a year of sustained pressure by Pascal Bates on the applicants’ behalves, the British Passport Office finally capitulated and had passports delivered to the four applicants at their home in the Middle East on Sunday 26 July 2015.