Only the Civil Standard Applies in Demonstrating Citizenship

BaburBegum v Secretary of State for the Home Department [2014] EWHC 2968 (Admin) (12 September 2014)

This is a noteworthy case, with roots in Pakistan, about the standard of proof to be applied by Her Majesty’s Passport Office (HMPO) with regard to issuing a British passport. The claimant, one Rangis Begum, daughter of Moghul Khan was aggrieved by the refusals of the British High Commission (BHC) in Islamabad in January 2011 and July 2012 – and a subsequent decision of the Overseas Passport Management Unit (OPMU) in May 2013 – to issue her a British passport, to which she claimed entitlement as a British citizen by descent. Born in 1988 in Pakistan, Rangis Begum contended that she was the daughter of Moghul Khan (1940–1989) who was a British citizen at the time of her birth and so if her claim was true then she too was a British citizen under section 2(1) of the British Nationality Act 1981. Although Rangis Begum was not entitled by descent through her mother Shah Jehan Begum, a Pakistani national, in making her case she relied on the fact that her sister Zakia Begum had been issued a British passport by virtue of being Moghul Khan’s daughter.

Rangis Begum argued she had demonstrated in her DNA and documentary evidence that she and Zakia Begum were full sisters who shared the same mother and father. The parties agreed that whilst passports are issued under the Royal Prerogative, in the event that Rangis Begum was really British then there was no basis for refusing her a passport in the exercise of that Prerogative. Rangis Begum accepted that section 3(8) of the Immigration Act 1971 put the onus on her to prove her entitlement to citizenship but an issue arose in relation to the standard of proof to be applied in relation to her passport application.

HHJ David Cooke observed that Rangis Begum supplied an abundance of documents – albeit with variations in spelling like “Maghul Khan”, “Mughal Khan” and “Moghul Khan” – exhibiting her father’s British citizenship and her descent from him. These included (i) for her father a Certificate of Registration as a Citizen of the UK and Colonies, Nikah Nama, Certificate of Registration as a British Citizen, British Passport, Death Certificate, Form B and (ii) for herself a Birth Certificate and Nikah Nama.

However, in 2011, the BHC rejected Rangis Begum’s first application for a British passport not only because of a lack of sufficient documentary and photographic evidence but also because in interview she did not provide sufficient details of her father’s life in the UK to prove her claim. The BHC said that since Moghul Khan was dead DNA testing could not be offered to prove the claim and that Rangis Begum had not proved that Moghul Khan was present in Pakistan in February 1998 when, given her date of birth, she had been conceived.

The court was puzzled that the decision-maker should adopt this attitude and attach unnecessary weight to the absence of photographic evidence and knowledge of her father’s life in the UK because he accepted that Rangis Begum was only one year old when her father expired. Subsequent DNA tests involving samples from Rangis Begum, Zakia Begum and Shah Jehan Begum (in the absence the father’s samples) still revealed a 99.9999% probability that Shah Jehan Begum was Rangis Begum and Zakia Begum’s mother and that the most likely relationship between the two sisters was one of “full siblings”.

In response to further representations, the reasons for refusal were amplified in an undated letter, in the second half of 2011 from the Head of the Counter Fraud Centre at the BHC, which maintained that Zakia Begum’s case was “not straightforward” and had “inconsistencies”. As to why Zakia succeeded in her application for a British passport but Rangis did not, the author considered that the DNA evidence proved the relationship between the two sisters but did not prove paternity and so the decision stood. The court noted that “the author [who questioned why Rangis did not apply together with her sister in 2003?] plainly casts doubt on the correctness of the decision in Zakia Begum’s case”.

The DNA report, a new application form and further representations were submitted to the BHC which again found in July 2012 that the documentary evidence was inconclusive because no new additional contemporaneous evidence to prove otherwise had been submitted and the DNA option was closed because her alleged father Moghul Khan had died.

Further representations seeking a review to the OPMU triggered the May 2013 decision (under challenge) which maintained that:

  • When submitting a passport application the onus is on the applicant to provide as much information as possible to support their application.
  • When assessing the application passport officials must be provided with evidence of the applicant’s identity and eligibility, and without this they can only assess the application on the documents that are provided.
  • Unfortunately there were insufficient documents provided to establish that Rangis Begum was a holder of the identity she submitted.
  • As Rangis Begum was claiming British Citizenship through her father, DNA testing with her mother does not provide any further evidence.

However, in court, the Home Office’s lawyer confirmed on instructions that save Rangis Begum’s claim to paternity, the comment regarding “a holder of the identity she submitted” did not intend to cast aspersions on her identity.

Grounds of Challenge

The principal ground of challenge advanced by Rangis Begum’s counsel Mr Adam Pipe was that the Home Secretary (the only named defendant in the instant matter) had behaved unlawfully by applying an excessive standard of proof in evaluating whether Rangis Begum had demonstrated that she was the daughter of Moghul Khan. The grounds of defence had erroneously argued that:

The standard of proof for HMPO with regard to the issuing of British Passports is beyond all reasonable doubt

Whilst it was clear that the criminal standard had been applied in deeming Rangis Begum’s application to be inconclusive, it was submitted on her behalf that:

The standard of proof in establishing entitlement to citizenship is the normal civil standard of the balance of probabilities

Although neither party was able to provide a transcript of the decision, the above, Mr Pipe clarified, had been determined by a tribunal (as regards the establishment of citizenship for the purpose of establishing a right of abode) in Kessori Khatun and Ors v Entry Clearance Officer (Dacca) and was therefore the right approach. On Mr Pipe’s view, the Home Secretary did in her published Nationality Instructions embrace a policy to apply this standard.

Indeed, the Nationality instructions: volume 2 contain a section headed Automatic claims (including claims by descent) and it explains that (i) nationality is a matter of law on which only the courts can rule conclusively (ii) the Immigration Act 1971 places the burden of proving a status on the applicant or claimant and (iii) the standard of proof, as determined in Kessori Khatun (4272), applicable to the right of abode, whether that be dependant on citizenship or relationship, is that of the normal balance of probabilities.

The instructions are abundantly clear that:

A right of abode is established, or a claim to citizenship made out, if the evidence that it exists outweighs, however slightly, the evidence that it does not. Any requirement that the applicants/claimants produce “conclusive” evidence of their status, or establish their position “beyond doubt”, sets the standard too high and risks censure by the courts if the case goes to judicial review. In official correspondence, such words and phrases are therefore best avoided.

Equally, the same instructions also logically advise decision-makers that:

Any requirement that the applicants/claimants produce “conclusive” evidence of their status, or establish their position “beyond doubt”, sets the standard too high and risks censure by the courts if the case goes to judicial review. In official correspondence, such words and phrases are therefore best avoided. Although in Kessori Khatun the Tribunal was concerned with the right of abode, the same standard is thought to apply to proof of citizenship for other purposes (e.g. for passport/consular protection purposes, voting, etc).

Unaddressed on HMPO’s exact status and proceeding on the basis that it is a different organisational entity from UK Visas and Immigration, HHJ David Cooke discerned that the HMPO refers to itself as an executive agency sponsored by the Home Office but also makes decisions on behalf of the Home Secretary and the Crown. It was acknowledged that the balance of probabilities is the correct standard of proof to be applied in demonstrating citizenship for purposes other than the issue of a passport but nevertheless argued (on instructions) that historically HMPO always applied “beyond reasonable doubt” as the standard of proof.

The defendant Home Secretary’s counsel precariously argued that had Rangis Begum applied to the Home Office “for citizenship” her claim would have been assessed on the civil standard. However, the truth was that no such application could have been made. Yet it was the government’s case that in the event an application for assessing citizenship had been made to an agency or department of the Home Office other than HMPO and the said department accepted that Rangis Begum demonstrated that she is a citizen on a balance of probabilities, then a subsequent application to HMPO for a passport would not be refused. The court was utterly unimpressed with the belief that a different standard should be applied by HMPO and giving the “historic” rationale for the argument short shrift, HHJ David Cooke held that:

23. The position contended for is, it seems to me, logically absurd. Citizenship is a matter of status and an individual is either a British Citizen or not; he cannot be a citizen for one purpose but not for another. Yet, if different standards of proof are applied by different government departments there must be cases that would fall between the two standards, so that those departments applying the lower standard would recognise a person as a citizen whereas those applying the higher standard would not. Further, the position of HMPO as stated would seem to be that by virtue of applying a higher standard it might not accept that citizenship had been shown on an application made directly to it, but would do so if the same applicant had previously made a similar application for different purposes to another department which had accepted it applying the lower standard.

Because it was not submitted that Kessori Khatun was wrongly decided, the court quashed the decision under challenge for applying the wrong legal standard and it held that in the absence of express statutory provision, in demonstrating citizenship there must only be one standard to be applied by law which applies for all purposes. (The government did not contend that the same decision would be reached applying the civil standard.)

british passportThe court also went on to hold that it was irrational to say that the DNA evidence had no weight at all and HHJ David Cooke was extremely clear that he “would have allowed the challenge also on that ground … had it been necessary” for him to do so. The court roundly rejected the government’s concerns arising from the various spellings – probably nothing more than clerical errors – of Moghul Khan’s name in the documents relied upon and considered it the decision-maker’s job to “determine whether these documents, in combination with the other evidence, make it more likely than not that they show the paternity claimed.”

On the other hand, the court rejected Mr Pipe’s point that it was irrational to apply the higher standard of proof because it was not a decision where it was open to the official concerned to choose between two legal standards. Rather, it was an incorrectly made decision relying on an unavailable (and inapplicable) legal test.

Lastly, the court considered that (although flawed) the decision letter was clear enough in rejecting Rangis Begum’s claimed paternity and HHJ David Cooke took the view that decision letters need not necessarily provide “a point by point refutation of all the arguments advanced.”

About mkp

Advocate High Courts of Pakistan
This entry was posted in Bangladesh, Citizenship and Nationality, India, Judicial Review, Pakistan and tagged , , . Bookmark the permalink.

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