In the recent High Court case of Islam, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1838, it was ruled that the Passport Office could not refuse to issue a passport to a person based on doubts about their British citizenship status.
The case centred around an individual, Mr. Islam, who had been recognised as British in unclear circumstances. His paternal grandfather was registered as a citizen of the UK and colonies and as such his father became a British citizen by descent when he was born overseas, by virtue of the British Nationality Act 1981. Mr. Islam’s parents married, and his mother applied for a spouse visa to join his father who was in the UK. Mr. Islam was born in Bangladesh and his parents asked that he be added to his mother’s visa application. Following the successful outcome of this application, the Home Office issued a Certificate of Entitlement to Mr. Islam on his mother’s passport and endorsed Mr. Islam’s name and date of birth on that certificate. This could only have been done if Mr. Islam was British.
In September 2018, the Home Office decided to deport Mr. Islam due to his criminal record, which would not be permissible if he were confirmed to be British. Mr. Islam contested the deportation order, arguing that he was a British citizen. The Tribunal ruled in his favour, recognising him as a British citizen. It was found that to have been issued with a Certificate of Entitlement, he must have been recognised as a British citizen. Surprisingly, the Home Office did not challenge this ruling. In January 2023, Mr. Islam applied for a British passport, citing the Tribunal’s decision. However, on 09/03/2023, the Passport Office denied his application, doubting his British citizenship status. This refusal prompted Mr. Islam to file for a judicial review on 13/06/2023, challenging the passport office’s decision.
Despite the Passport Office’s concerns, the court found that the principle of “issue estoppel” prevented the re-examination of Mr. Islam’s citizenship status as a decision had been previously made on this issue by the Tribunal. The Home Secretary argued that issue estoppel did not apply in this case; instead contending that the central issue was not previously decided but the court disagreed, concluding that the issue before them, whether Mr. Islam was British, was clearly the same issue that was before the earlier Tribunal.
Given that the First-tier Tribunal had found that Mr. Islam was a British citizen, and that the court set out that this conclusion could not be redecided, a declaration was then made stating that the passport office had unlawfully refused Mr. Islam’s application.
The most interesting aspect of this case, however, is that Mr. Islam could only have been British if he had made an application for registration as a child. It appears there was little to no evidence of this, yet the First-tier Tribunal found him to be British regardless. The Home Office could have challenged this when the decision was made, but chose not to, and so are prevented from doing so years later.
By Hanna Barzinji
6.8.2024