Is the Home Office under a duty to provide information establishing a child’s nationality?

This is the question considered by the Inner House of the Court of Session in AS v Secretary of State for the Home Department [2022] CSIH 16.

Unfortunately, the answer is no. The Home Office’s duty is limited to verification of documents.

Background

The appellant AS is a woman from Cameroon who had a daughter in the UK in 2015. The daughter’s father had German citizenship and was exercising his EU treaty rights in the UK. If he had acquired EU law permanent residence by 2015 – and was therefore settled in the UK – his daughter would be a British citizen. Even if he was not settled, his daughter would be a German citizen. Either way, this would have a significant impact on AS’s right to remain in the UK.

The couple separated in 2016 and have had no contact with one another since. AS’s attempts to determine her daughter’s nationality for herself proved unproductive, so she asked the First-tier Tribunal to direct the Home Office to verify the immigration status of the father. The tribunal refused.

When the case reached the Upper Tribunal, it initially directed AS to make further enquiries, for instance with the German embassy and other UK government departments. As anticipated, these enquiries were unproductive due to data protection restrictions. AS therefore made another request for the Home Office to be ordered to verify the father’s immigration status, this time to the Upper Tribunal.

This application was not determined. The Upper Tribunal felt that AS had not shown that she had “exhausted reasonable enquiries” and so neither the Home Office nor the tribunal could be expected to assist. She appealed to the Inner House.

Duty to verify

A duty of enquiry is imposed on the Home Office by the European Court of Human Rights decision in Singh v Belgium. The court held that, when determining an Article 3 claim, a state must show it had been as rigorous as possible and carried out a careful examination of the grounds of appeal. In some cases, this may extend to checking the authenticity of crucial documents. This applies only when a simple process of enquiry will conclusively resolve the documents’ authenticity and reliability.

The Singh case was subsequently considered in the UK by the Upper Tribunal (see Free Movement write-ups here and here) and by the Court of Appeal in PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011.

But as the Inner House noted at paragraph 36:

Each of the cases discussed above concerned an application for asylum based on a claim under article 3 of the Convention. In each case the court considered the relatively common situation in applications for asylum where an applicant seeks to vouch his or her claim by relying on a document which they produce and which appears to emanate from an organisation or authority in a foreign country. The case law discussed makes it clear that an obligation can arise exceptionally (in the sense of rarely) requiring the Secretary of State to make pro-active enquiries of an institution, organisation or individual, likely to be based abroad, about the nature or content of a document which has been provided by the applicant.

The present case concerned Article 8, not Article 3, and didn’t involve verification of documents. Could the Singh v Belgium duty be extended to verifying the immigration status of a child’s father to help determine that child’s nationality?

The Inner House didn’t think so:

Whilst it might be possible to envisage a situation involving a claim under article 8 in which an appellant seeks to rely on a document which he or she produces, which goes to the heart of the claim, and which satisfies the other criteria outlined in the decision in PJ (Sri Lanka), that is not the present appellant’s situation. Nor is the appellant seeking verification of authenticity and reliability in the manner discussed in the cases referred to. The appellant is seeking disclosure of information held by the Secretary of State and other governmental bodies which she cannot otherwise obtain… [37]

No duty of enquiry into the nationality of the appellant’s daughter arises as a consequence of the jurisprudence relied upon. The duty to verify documents produced and relied upon by an appellant, the scope of which was set out by Fulford LJ in PJ (Sri Lanka), is not engaged in the present case. [39]

This ground of appeal was therefore unsuccessful.

This is a disappointing result. Instead of carrying out a simple check of its own records, the Home Office can simply proceed with the removal of a parent of a child who may well be a British citizen. The result is the child will also be forced to leave the UK.

It is up to the mother to prevent removal by proving the child is British, as a result of the father’s immigration status. It is unclear how anyone would be able to do this without the cooperation of the father. This case makes it clear that the Home Office is under no obligation to help.

Appeal allowed anyway

Despite being unsuccessful on the wider point, the appeal was allowed. This was because the Upper Tribunal seems to have changed its mind about the importance of the child’s nationality:

… the UT appears to have considered nationality to be potentially material in July but not in November, without explaining why it had changed its view. [41]

In July, when issuing directions requiring the appellant to make further enquiries, the Upper Tribunal noted that the nationality of the child was of potential importance and that it “would not readily abandon the issue”. By November, the tribunal was happy to dismiss the appeal without resolving the child’s nationality.

There was also an issue with the First-tier Tribunal’s assessment of whether the appellant could internally relocate within Cameroon. The tribunal decided that it was safe for her to return to Cameroon and establish herself as an independent educated woman far from her abusive father’s home.

The Inner House found that the tribunal had conflated the situation of a woman living alone with the situation of a single parent returning with a young child. The reports relied on did not specifically mention single mothers. As such, inadequate reasons had been given for the decision that internal relocation was safe.

In light of these errors, the case goes back to the Upper Tribunal to reconsider the appeal.