In the present and fast-changing world of immigration and nationality law, it is becoming evident that the HM Passport Office are refusing applications for renewal of passports by people who had held British citizenship for a number of years. Applicants who had held British passports, and who had renewed these on a number of occasions for a number of years, are suddenly being required by HM Passport Office to provide evidence of how they acquired British citizenship, in some cases in circumstances where they have held British citizenship (ie issued with renewed passports) for over twenty to thirty years. 

The difficulty in these cases is that the documentary evidence required by those affected applicants to establish their right to British citizenship, is either that the documents are no longer readily available, or they are very limited.

More often than not, the HM Passport Office tends to refuse applications of this sort, on the basis that insufficient evidence has been provided. In coming to this conclusion, it has become normal for the HM Passport Office to indicate that the standard of proof required to establish British citizenship is a higher standard of reasonable doubt, or an enhanced standard of "sufficient standard". This is a standard than the usual standard of balance of probabilities.

In this situation, an applicant will find himself unable to obtain a passport renewal, and therefore will be deemed to have no valid leave to remain in the United Kingdom.

It used to be possible for a person who found himself in such difficult circumstances to either raise a Petition for Judicial Review, or to apply for indefinite leave to remain under the fourteen years' long-residence Rule. However, in recent times, the tightening of the Immigration Rules, has made it almost impossible for an applicant to be able to resolve this matter as quickly and easily as possible.

This will leave an applicant with no other option but to petition for Judicial Review against the refusal decision.

The frequency of these refusals by HM Passport Office is such that the High Court has been deluged by a number of these cases in recent times.

In R (On the Application of Jayram Sinha) v SSHD [2013] EWHC 711 (Admin), Mr Justice Eder re-affirmed the position that the legal burden of proof lies on a claimant to show that he has acquired British citizenship, and that burden of proof will be discharged on a standard of balance of probabilities. It must be understood that whether a claimant has been able to meet the standard of balance of probabilities will depend on the specific facts and nature of the case, and the evidence adduced.

An interesting development in this case is that, at paragraph 16 of the decision, the Judge concluded that where an applicant has provided previous passports issued by the Secretary of State on previous occasions, that satisfies the evidential burden of proof on the claimant, and the burden of proof would then shift to the Secretary of State to prove otherwise. The court, in re-affirming the previous decision of the High Court in Liaquat Ali v SSHD, indicated that the SSHD, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance "cogent reasons that stood up to scrutiny why on a later application she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefit of a British passport of a decade is a serious step with serious consequences".

The court was willing to find that such a refusal would constitute an irrational decision on the part of the Secretary of State.

The important point that arises from these two decisions is that the High Court is ever willing to determine that a decision of the Secretary of State to renew a passport can be rendered irrational in circumstances where previous passport extensions have been accepted. Moreover, the court is willing to accept that the burden of proof on the applicant might be discharged by the issuing of previous passports, or evidence of such previous passports being issued by the Secretary of State. The burden will remain on the Secretary of State to disprove, or establish that the applicant is not entitled to British citizenship.

The approach of the High Court in these cases will continue to provide a much needed solace to applicants, as it is evident that the mere possession of a British passport over a long period of time is no longer sufficient to assure a claimant's status as a British citizen.

Claimants who have experienced this situation should contact Drummond Miller's Immigration Team, as we have significant expertise in dealing with nationality matters.