Genuine British passport proves citizenship

LAW REPORT 23 April 1997

Regina v Secretary of State for the Home Department, ex parte Obi; Queen's Bench Division Crown Office List (Mr Justice Sedley) 18 April 1997

A person seeking to enter the United Kingdom discharged the burden of proving British citizenship, established by section 3(8) of the Immigration Act 1971, by producing a genuine passport describing him as a British citizen. There was no further burden upon the entrant to prove his identity.

The Queen's Bench Division quashed the determination of the Home Secretary that the applicant was an illegal entrant.

The applicant had entered the United Kingdom on 13 July 1995, using a British passport issued to him on 19 May 1995 for a six-month period in the name of Chukwudi Obi. On 17 October 1995, when he applied for renewal of the passport, he was arrested and served with a notice directed to him as an illegal entrant.

Stefanie Harrison (Edwards Frais Abrahamson, Liverpool) for the applicant; Steven Kovats (Treasury Solicitor) for the Home Secretary.

Mr Justice Sedley said that the principal question to be decided was one of pure law: was it for the Home Secretary to satisfy the court that the applicant was an illegal entrant, or for the applicant to satisfy the court that he was not?

While it had rightly been conceded that, on the evidence, any onus which might rest on the Home Secretary could not be discharged, the same was true of the applicant if in law the onus was on him. He had produced to the Passport Agency material sufficient to secure the lawful issue to him of a full British passport in the name of Chukwudi Obi, but there was some doubt that he was in fact Chukwudi Obi. If the onus was on him to prove his identity in order to prove that he was not an illegal entrant, he had not discharged that burden on the balance of probability.

Everything turned, therefore, on where the burden of proof lay, but within that question was another: proof of what? The ultimate question was whether the applicant was or was not an illegal entrant.

Section 33(1) of the Immigration Act 1971 provided that an illegal entrant was a person who unlawfully entered, sought to enter or had entered the United Kingdom in breach of immigration laws. A person with the right of abode in the United Kingdom was not an illegal entrant. Section 3(8) of the 1971 Act provided that it was for a person asserting that he was a British citizen to prove that he was, and by section 3(9) a person claiming to have the right of abode should prove it "by means of . . . (a) a United Kingdom passport describing him as a British citizen . . ."

The applicant contended that he had satisfied both subsections (8) and (9). The Home Secretary accepted that the passport he had produced described Mr Obi as a British citizen, but contended that until the applicant had proved that he was Mr Obi, the passport did not come within subsection (9). He submitted that, once identity had been queried, it was up to the entrant to prove the further fact that he was the Mr Obi described by the passport as a British citizen.

In the factual situation described, his Lordship had reached the conclusion that no such further burden rested upon an entrant. He remained open to all the sanctions of the law if it could be proved that he had secured the passport by fraud. Until that point was reached, however, the production of a genuine passport which described as a British citizen a person who was undoubtedly the person seeking to enter, discharged the burden of proof of British citizenship established by section 3(8).

Although the authorities cited to the court contained relevant pointers, the real answer to the question posed was in a straightforward reading and application of section 3(9) in its legal and historical context. Any other approach reduced the section to a shadow of Parliament's evident intention and placed the executive in almost unchallengeable command of a liberty which, section 3(8) apart, was in our law one of the individual's most prized protections.

Kate O'Hanlon, Barrister