It might be difficult to imagine a scenario where a person, born in the United Kingdom 53year ago, following a change of name is issued a British passport (with the passport office fully aware of the former name), but only for the home office to subsequently take deportation action against him years later, on the basis that he is not British.
But that is exactly what the Home Office sought to do to a man who was born in the UK in the early 60’s to parents of Nigerian origin, who were residing in the UK at that time.
Such action followed an application for a Certificate of Entitlement to the Right for Abode as a person born in the UK before 1 January 1983. What was the main reason for refusal?
“The birth certificate that you have provided is not contemporaneous and was issued over 44years after your birth date”.
At some point, this man stopped being treated as a British citizen: from the home office point of view, he was only a Nigerian national who had taken on someone else’s British identity.
Not only did he become subject to deportation proceedings, but whilst his appeal was yet to be heard, the Home office went ahead, in this case of a man with serious physical and mental health problems, to inform the benefits agency that he was not entitled to any benefits because of his immigration status.
How the problem arose
Having been born in the UK in the 60’s and attended school here, C subsequently went to Nigeria in the 70’s: he occasionally visited the UK but then returned permanently here in the late 80’s but with a certificate of entitlement of right of abode endorsed in his Nigerian passport.
C’s British passport, issued in the UK following his return, was taken by the police upon his arrest in 2002 along with other ID documents which did not belong to him.
C completed serving his last prison sentence just over a decade ago in relation to another offence. Prior to his release from prison, an immigration officer visited him. The officer subsequently wrote in a Home Office Minute Note that the police had not taken issue with the British passport, which had been found to be genuinely issued in C’ s new name. From his notes, that immigration officer clearly accepted C was British.
Then came along a senior officer, who made no bones regarding his view that he was not convinced that C was the same man who had been issued with a certificate of entitlement in Nigeria. He directed that further investigations be made in Nigeria.
Following his release from prison in 2007, C sought to retrieve his British passport, which was still valid until 2011. Over the years C waded through several solicitors who wrote to several agencies seeking resolution of the issues. There were either denials regarding retention of the British passport or just silence. The home office simply ignored all correspondence sent to them including copies of the British passport and the change of name deed in relation to the new name. On the other hand, the passport office confirmed in a letter to C that they were aware not only of his former name but that his British passport had been issued to him previously in his new name.
New British passport application and application for a certificate of entitlement to a right of abode
The new legal aid changes of 2013 meant he found he could not readily access legal assistance. Not being able to fund his case privately, he gave up on instructing solicitors and so took matters in his own hands.
Two years ago C sought to re-apply for a British passport in his adopted name.
The passport application took many months to be processed. Whilst that application was outstanding, in desperation, he once again applied for a certificate of entitlement to a right of abode in his former name. He failed to understand what the holdup was with the passport application.
The certificate of entitlement application was refused. The main reason for refusal was a reluctance by the home office to place weight upon the birth certificate C had produced; the home office queried why C had submitted a birth certificate which had been issued 44years after his birth. He was invited to seek to obtain a recent one from the registry office. No mention was made of the fact that C had since his return to the UK obtained at least 2 birth certificates from the registry office and submitted them with his British passport applications previously.
A further reason for refusal was the home office assertion that no part of their departments had ever been informed of the new name C had adopted years ago i.e. the name in which the British passport had been issued. The fact that the submitted Nigerian passport stated Britain as C‘s place of birth well over 50years ago carried no weight. Further, no mention was made of the notes that had been made by the immigration officers just prior to his release from prison years ago. It was however evident that the Home office was aware that C had a British passport application outstanding as they referred to that application in the refusal of the certificate of entitlement. C appealed the refusal of the certificate of entitlement to the right of abode. He did not engage any legal representation.
The passport office then began writing to C. At first, all that he was requested to do prior to issue of the British passport seemed minor but then suddenly each set of incoming correspondence increasingly seemed to lift the bar even higher as regards the documentation required by them. No longer having any ID to cover his new name, C had reverted to use of both this name and his former name. The passport office decided to withdraw the British passport application on the basis that C had not provided sufficient official documentation in his new name.
Then came correspondence just a few months later from the home office asking C to provide reasons why he should not be deported to Nigeria. The proceedings arose out of a combination of several convictions, with the last one being that of well over a decade ago.
Despite some representations from the MP, the home office subsequently made a decision to deport C. C instructed me recently. Detailed grounds of appeal were submitted running to 15pages, which engaged with the facts and the extensive evidence C had been encouraged to produce prior to lodgement of the appeal. Those grounds of appeal subsequently stood as the “skeleton” argument. A request was made to the Tribunal to link the two appeals.
It came as no surprise that the Home office bundle in relation to the certificate of entitlement appeal was deliberately sparse- it consisted of the application form, C’s Nigerian passport copy and the refusal decision. That bundle was served upon C prior to his seeking legal advice. Following lodgement of the detailed grounds of appeal, no bundle at all was served upon C or his legal representatives in relation to the second appeal.
The Immigration Judge
Then came the appeal proceedings. From that point, the Immigration Judge took over and the Home Office was no longer in charge:
The sparse home office bundle counted heavily against the home office as well as the failure to comply with Directions in a deportation appeal case.
The Home office Presenting officer’s request for an adjournment to make good the deficiencies was refused without hesitation.
The Judge refused to be drawn into peripheral arguments and focused on the core issue in the case; was C a British citizen?
During the course of the hearing, the Judge could not help but remark upon C’s English accent. Despite the Judge putting it across to the home office presenting officer that C did not sound like someone who had spent his formative years in Nigeria, the presenting officer refused to acknowledge this.
C’s bundle was voluminous. Before C’s appeal was heard, he had been encouraged to provide as many documents as he could to support his case. This he did: he provided two suitcases containing documents running over the course of several decades with such papers reflective of both his names to almost equal extent.
Not a word of protest came from Judge regarding the 700page Appellant’s bundle during C’s appeal hearing. He indicated he would take the Bundle away and get to further grips with it at his own pace. Unusually, the bundle was of such length having regard to C’s personal documents which had been carefully sifted and which went to the core of the issues and which required to be submitted.
The recent Decision from the Judge shows that he carefully considered the entire bundle and engaged with the evidence as he specifically referred to supportive evidence by reference to page numbers. The law was very carefully considered and applied to the facts of the case.
It is clear from the Decision that the appeal could have gone either way: the Judge had no hesitation in expressing his great displeasure at C’s past adverse history but noted upon reflecting on the material before him, that he was “ just about prepared to accept on the balance of probabilities ” that C was the very same person who was born in the UK all those years ago.
The Judge therefore accepted that C was British and not liable to deportation.
In all this, what the Home office refused to acknowledge by commencing deportation proceedings, was that years ago, when C’s applied for his British passport, because of his change of name, he was required to attend at the passport office by way of personal visit; a further specific requirement was for him to submit the British passport application in the new name with appropriate witnessing and photograph. Only then was the passport issued in his new name.
In relation to the birth certificate, a time limited request from the Home office to C prior to refusal of the certificate of entitlement application, to provide a newly issued extract of the UK birth certificate would have assisted in resolving matters earlier. For some reason the home office elected not to do so.
To suggest that C had never made any part of the Home Office aware of his new name defied logic: the result of a subject access request showed that C’s previous legal representatives had written to the home office in this regards and also referenced the problems C was having retrieving his British passport. The Home Office had chosen to ignore him, until a decade later when it seemed that all his options had run out and then decided to subject him to deportation.
It is C who during the course of his appeal disclosed all relevant documentation regarding the Notes made by the second immigration officer doubting his nationality. C also made provision in relation to past documentation from the passport office. Neither the refusal of certificate of entitlement nor the decision to deport referred to these issues, however these Home Office Minute Notes were a relevant background to appreciating how an immigration officer going off on a frolic of his own a decade ago affected how subsequent decision- makers approached C’s case.
Before subjecting a person to deportation proceedings, mere commons sense and fairness dictates that the decision- maker gather documentation from all relevant sources as well as other departments or agencies. What however the home office did at various points, was seek to by-pass or override information that was within the passport office, an office which had investigated C’s passport application previously and had also accepted that C was both the same person who had been issued with the Certificate of Entitlement whilst in Nigeria and then the British passport in the UK. If that information was before the decision-maker but they decided to go ahead with deportation proceedings in any case, then this is alarming.
As it happened, apart from the certificate of entitlement application form and the resulting decision was well as the decision to deport, no other documents were served by the home office. This was unusual in such a complicated case which required mutual cooperation so as to effectively assist the Judge make his decision.
Interestingly, there never was any revelation from the home office presenting officer at the hearing, regarding the outcome of any investigation directed to be made by a senior immigration officer a decade ago in relation to the issue of the certificate of entitlement in Nigeria in the 80’s just prior to C’s return to the UK.
There is a real and worrying possibility that the Judge could have refused to accept that C was British from birth and carefully cemented his reasons for saying so. The home office had unfairly allowed C’s past dishonesty offences to taint their approach to his case; the Judge could have similarly permitted this past to jaundice his view of the entire appeal to C’s detriment. He did not do so. Had the Immigration Judge decided to adopt the Home Office stance, all circumstances considered, this would have resulted in real injustice to C as a British citizen.