April 10, 2024

NC (a minor) -v- Secretary of State for the Home Department (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Claim number: AC-2023-LON-003418

In the High Court of Justice
King’s Bench Division
Administrative Court

10 April 2024

Before:

Mr James Strachan KC (sitting as a Deputy High Court Judge)

Between:

The King on the application of
NC (a minor)

-v-

Secretary of State for the Home Department

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant

ORDER by Mr James Strachan KC (sitting as a Deputy High Court Judge)

1. Pursuant to CPR 39.2(4) no person shall publish any information capable of identifying the Claimant without the permission of the Court. The Claimant shall be anonymised and referred to respectively as “NC”.

2. Pursuant to CPR 5.4C(4) a non-party may not obtain from the court file or inspect any copy of a statement of case, witness statement or other document unless it has been anonymised in accordance with paragraph 2 of this order, or the Court permits otherwise.

3. The application for permission to apply for judicial review is refused.

4. No order for costs.

Reasons

Claimant’s status as a child

1. The Claimant is a child. No application has been made for a litigation friend to conduct proceedings on the Claimant’s behalf for the purposes of CPR21.2. If and in so far as it necessary in order for me to consider the application for permission to bring this claim, I make an order permitting the claim to be considered on the papers at the permission stage without such a litigation friend, pursuant to CPR 21.2(3) and in light of CPR 21.3(2)(b). For the avoidance of doubt, however, such order is strictly limited to that consideration. In light of the provisions of CPR 21.3(2), any renewed application for permission to bring this claim for judicial review must be accompanied by an
application for a litigation friend to act on the Claimant’s behalf (unless the Court otherwise orders).

Anonymity

2. There is also no application seeking anonymity for the Claimant. In light of the facts and circumstances relating to the Claimant, including the absence of any litigation friend, I am satisfied that it is appropriate on the Court’s own motion to make an anonymity order in respect of the Claimant, and appropriate provision to protect the Claimant’s identity, pursuant to CPR 39.2(4) and CPR 5.4C(4).

Application for Permission to Claim Judicial Review

3. The Claimant’s mother is an Albanian national. She married her now separated, but not divorced, husband (“VC”) on 7 September 2013. VC is not a British national. The Claimant’s mother entered the UK on 5 August 2018 and claimed asylum. The Claimant’s mother states that as a result of “being engaged in a one night stand” with a British Citizen (“JR”), the Claimant was born on 11 February 2011. On 6 January 2023 the Claimant’s mother applied for a British passport for the Claimant on the basis that the Claimant’s biological father was British. The Defendant requested various information and interviewed the Claimant’s mother and JR separately.

4. By letter dated 15 August 2023 the Claimant refused the Claimant’s application for a British passport. The letter gave reasons (amongst other things) as follows: “Due to a lack of corroborative details HM Passport Office are not satisfied, on balance of probabilities, as to the parentage of this child. Also, during your interview, you confirmed that you were married to someone else (V..C…) and that although you had separated from [VC], as of February 2021 (when the child was born) you had not legally divorced him. As you were married to another person at the time of N…’s birth, I am unable to derive N…’s claim to British nationality through J… R…. as the named father”, invoking the definition of a father in section 50(9A) of the British Nationality Act 1981.

5. The Claim seeks to challenge that decision on three grounds and seeks consequential relief (set out in paragraph 31 of the Grounds). Ground 1 alleges that the decision is irrational and unlawful having regard to the decision in R(K(A child) v SSHD [2018] EWHC 1834 (Admin). Ground 2 alleges that the Defendant failed to make relevant findings in light of R(K(A child) and the declaration that was made in that case. Ground 3 alleges that the Defendant misinterpreted published guidance on the use of DNA evidence, or acted in a procedurally unfair manner in failing to follow that guidance, or otherwise failed to give proper reasons.

6. I am satisfied that none of the identified grounds is arguable for two main but independent reasons.

7. First, I do not consider there to be an arguable basis for challenging the Defendant’s conclusion on the facts that the application lacked sufficient corroborative detailed for the Defendant to be satisfied on the balance of probabilities as to the parentage of the Claimant. This was a matter for the Defendant’s evaluation based on the evidence available which I have reviewed (including the notes of the two interviews).

8. For the reasons identified in the Defendant’s Summary Grounds of Resistance, it is sufficiently clear that the decision was made on the basis of the evidence that was in front of the Defendant at the time, including the evidence gleaned from the interviews of the Claimant’s mother and JR; no arguable basis for challenging the rationality of that decision has been advanced given the limited corroborative information that was presented to support the application. I do not consider it to be arguable that the Defendant misinterpreted or misapplied the guidance in relation to DNA, when reading the decision as a whole and in context. The Defendant was identifying the absence of DNA evidence to overcome the absence of necessary corroborative evidence to support the application, rather than requiring such DNA evidence to be provided, or seeking to draw any adverse inference from the absence of such DNA evidence. In such circumstances, I do not consider the Claimant’s reliance on R(K(a child) to assist in overcoming this fundamental problem as to the Defendant’s evaluation as to the lack of sufficient evidence being presented to satisfy the Defendant as to parentage.

9. Second, independently from the specific facts above, the Claimant has not identified a specific basis for a successful claim for relief in respect what I consider to the freestanding reasoning by the Defendant in reliance on section 50(9A) of the 1981 Act. In light of the declaration made in R(K(a child), there is (as things stand and as appears to be recognised by the Defendant) a cause for concern about the continued incompatibility of this statutory provision with the identified ECHR rights in the Schedule to the Human Rights Act 1998. However the reliance on the definition of a father in this statutory provision was separate to the findings of fact identified above. But even if that had not been the case, section 50(9A) continues to set out the applicable relevant definition for the purposes of domestic law, notwithstanding the declaration of incompatibility made in R(K(a child). That declaration does not itself alter the primary legislation. No further declaration of incompatibility is being sought in this claim and, in the circumstances, no arguable basis for other or further relief in respect of this continuing state of affairs is identified in the claim form. For example, no principled basis is put forward for seeking an order compelling the Defendant to review the provisions of s.50(9A) of the 1981 Act, given the specific terms of the Human Rights Act 1998.

10. The Claimant has submitted a copy of a letter before claim that the Claimant’s solicitors state that they sent to the Defendant, but the Defendant states that it has no record of receiving it. In all the circumstances, and in particular in the absence of any further information as to what steps have been taken in respect of s.50(9A) of the 1981 Act, I am satisfied that the fair and just order to make is that of no order as to costs. I note that the claim form refers to the Claimant being in receipt of a legal aid certificate which is said to be attached to the Claim Form; but I have not been able to locate such a certificate in the materials before me.