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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bondada, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin) (15 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2661.html Cite as: [2015] EWHC 2661 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of Deelavathi Bondada |
Claimant |
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- and - |
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Secretary of State for the Home Department |
Defendant |
____________________
Ms Clare Parry (instructed by the Government Legal Department) for the Defendant
Hearing dates: 7 July 2015
____________________
Crown Copyright ©
Mr Justice Walker:
Table of Contents
A. Introduction | 1 |
B. The common ground and the issues | 6 |
C. The family's account | 12 |
D. UK government stance prior to these proceedings | 32 |
D1. The British High Commission in 1978 | 32 |
D2. The Consular Department in November 2011 | 39 |
D3. The Counter Fraud Team in December 2012 | 42 |
D4. The Liverpool Nationality Enquiries Team in August 2013 | 44 |
D5. HMPO Delhi in October 2013 | 46 |
E. Later correspondence and these proceedings | 47 |
E1. The letter before claim: 23 December 2013 | 47 |
E2. The reply: the FCO OPMU January 2014 letter | 48 |
E3. Claim form and detailed statement of grounds | 50 |
E4. Procedural steps prior to 31 July 2014 | 54 |
E5. Summary grounds of defence: 31 July 2014 | 56 |
E6. Preparations for trial | 57 |
E7. The trial: 7 July 2015 | 59 |
E8. My assessment of the witnesses | 67 |
F. Observations | 68 |
F1. The identity concession | 68 |
F2. Careful scrutiny and guarding against fraud | 72 |
F3. Assertions as to mandatory requirements | 74 |
F4. Failure to engage | 76 |
F5. The interview | 77 |
G. My findings on the crucial questions | 80 |
G1. The first crucial question: who fathered the siblings? | 80 |
G2. The second crucial question: when was Deelavathi born? | 87 |
G3. The third crucial question: were her parents married? | 94 |
H. Conclusion | 98 |
A. Introduction
B. The common ground and the issues
(1) that the woman known as Mrs Ganikamma Bondada ("Ganikamma") is Deelavathi's mother;(2) that Ganikamma is the mother of Deelavathi's eldest brother Dr Kurma Rao Bondada ("Kurma"), her middle brother Mr Kandeswara Rao Bondada ("Kandeswara"), her youngest brother Mr Tata Rao Bondada ("Tata"), and her sister Ms Punyavathi Murala ("Punyavathi"); and
(3) that Deelavathi, Kurma, Kandeswara, Tata, and Punyavathi are full siblings: not only do they share Ganikamma as their mother, they also share the same father.
(1) her father was Chandraiah ("the first crucial assertion");(2) she was born after 21 December 1967 ("the second crucial assertion"); and
(3) Chandraiah and Ganikamma were married prior to her birth ("the third crucial assertion").
C. The family's account
… Deelavathi Bondada is a British citizen by descent under section 11(1) of the British Nationality Act 1981.
...
D. UK government stance prior to these proceedings
D1. The British High Commission in 1978
SETTLEMENT /TO JOIN HUSBAND /ACCOMPANYING
MOTHER AND TO JOIN FATHER …
ISSUED IN RESPECT OF HOLDER BONDADA GANIKAMMA and one daughter DEELAVATHI.
(1) of the accuracy of the statements in Ganikamma's 1978 passport that Ganikamma was Chandraiah's wife, and that Deelavathi was Ganikamma's daughter born on 6 November 1969; and(2) that Deelavathi was the legitimate daughter of Chandraiah and Ganikamma.
D2. The Consular Department in November 2011
… that you are the true holder of the identity and that you are related to your claimed father as mentioned in your application. …
(1) Chandraiah's original registration documents had not been submitted;(2) the passport held by Chandraiah at the time of Deelavathi's birth had not been submitted and "therefore we are unable to ascertain whether your parents were together at the time of conception or not";
(3) the date of birth on Deelavathi's school certificate differed from that on her birth certificate and passport application form;
(4) the school records submitted were not contemporaneous documents;
(5) there had been a failure to submit "progressing photographs of yourself since your childhood for time spent with parents and relatives";
(6) Deelavathi's parents' marriage certificate had not been submitted, with the result that the only details available were those in the statutory declarations;
(7) no reason had been given for waiting so long and deciding to apply for a passport only after the death of Deelavathi's father.
You have not submitted any documents through which your relation with your father can be established. The documents you have provided unfortunately do not conclusively prove that you are the true holder of the identity and that you are related to your claimed father as mentioned in your application. We also requested you to submit additional documents, which you failed to do. I am therefore not satisfied that you are entitled to a British passport. Under these circumstances, the application falls to be refused, and I have closed the file.
D3. The Counter Fraud Team in December 2012
(1) no explanation has ever been given for this;(2) no explanation has ever been given for the failure to refer to the DNA analyses; and
(3) no explanation has ever been given for the failure to refer to Deelavathi's detailed statement answering the points identified in section D2 above.
D4. The Liverpool Nationality Enquiries Team in August 2013
Please note that the issuing office may conduct further enquiries to verify the identity of the applicant and/or those related on whom the claim to nationality may rely.
D5. HMPO Delhi in October 2013
E. Later correspondence and these proceedings
E1. The letter before claim: 23 December 2013
E2. The reply: the FCO OPMU January 2014 letter
The Foreign Commonwealth Office delivering passports to British Nationals overseas on behalf of Her Majesty's Passport Office.
(1) that the documents required when submitting a British passport application "are determined by Her Majesty's Passport Office and no other documents can be submitted in their place";(2) that privately commissioned DNA test results are never considered;
(3) that the Overseas Passport Management Unit was unable to issue a passport "without all the required mandatory documents".
E3. Claim form and detailed statement of grounds
E4. Procedural steps prior to 31 July 2014
E5. Summary grounds of defence: 31 July 2014
(1) it was said that deficiencies in the information submitted had the consequence that passport officials were unable to establish with sufficient certainty both (a) identity and (b) eligibility for a British passport;(2) paragraphs 5 and 10 repeated assertions in the FCO OPMU January 2014 letter about "mandatory" documentation, but the summary grounds of defence identified no basis in law for these assertions;
(3) no reference was made to the DNA analyses;
(4) paragraph 6 complained about the "paucity" of, and conflicting information in, material supplied by Deelavathi, which included:
(a) documents displaying different names;(b) documents displaying different dates of birth;(c) copies of documents as opposed to original documents; and(d) copies of her father's passports with the travel pages missing;(5) paragraph 8 stressed that Deelavathi had not provided additional documents at the interview;
(6) paragraph 9 said that Deelavathi was unable, during the interview, to provide anything other than very limited information about her father, her parents' marriage, her father's life in the UK, his death or even to explain the conflicting names and dates of birth on the supporting documentation that she had submitted;
(7) reference was made to a transcript of the interview; and
(8) paragraph 14 noted that the burden was on an applicant for a British passport to demonstrate that relevant requirements were met.
E6. Preparations for trial
E7. The trial: 7 July 2015
(1) produced as exhibit "A" a photocopy of the register entry, signed by Chandraiah on 26 December 1969, for the birth to Ganikamma on 6 November 1969 of a female child of which he was the father;(2) accepted that Ganikamma was married at the age of 12, with the consequence that Mangam Rathamma and Chinta Venkanna must have been mistaken in saying that when Ganikamma married they had known her for 16 and 14 years respectively;
(3) commented that the earlier statutory declarations of Nakka Venkayamma and Valluru Venkanna correctly stated that they had known Ganikamma for 12 years at the time of her marriage, and added that the statutory declarations of Mangam Rathamma and Chinta Venkanna had been made by individuals who were 85 and 80 respectively and were reliant on their memory;
(4) accepted that in 2013 he had been responsible for submitting an English version of Deelavathi's birth certificate which gave the month of her birth as December rather than November 1969, and commented in that regard that there had been a mistake when translating the Telugu entry.
(5) added that when Deelavathi was born he, Kurma, had been at medical college in India, and that he had visited his mother and seen her and Deelavathi within weeks or days of the birth;
(6) produced the DNA analyses.
(1) said that he had not noticed the discrepancy in the birth certificate in 2013;(2) said that the photocopy at exhibit A had been produced in August 2014, and that he was unaware that it had not been provided to the UK government until today;
(3) accepted that exhibit A did not show the registration number 100/69 which appeared on Deelavathi's birth certificates;
(4) accepted that exhibit A gave Ganikamma's age at confinement as 38 when it should have said 39;
(5) accepted that the statutory declarations of Nakka Venkayamma, Valluru Venkanna, Mangam Rathamma and Chinta Venkanna all said that Chandraiah died on 9 April 2002 when in fact he had died on 9 April 2001;
(6) accepted that Chinta Venkanna's statement described his age as 80 in August 2008, with the result that he would have been 14 in 1942 and could not have been correct when he said that he had known Chandraiah for 20 years at the time of the wedding in 1942;
(7) stated that his father and mother had told him that Chandraiah was his father, adding that his own passport named Chandraiah as his father.
(1) the family when Deelavathi was a few months old in 1969/70 ("photo 1");(2) himself, with his mother and Deelavathi before they went to London in 1978 ("photo 2");
(3) Deelavathi at Kurma's marriage ceremony in 1981 ("photo 3");
(4) the family including Deelavathi at the time of Kurma's marriage in 1981 ("photo 4").
(1) accepted that a statement made by Ganikamma on 12 April 2013 had wrongly given a date of 1956 instead of 1954 for his birth and her return to journey to India while pregnant with him;(2) stated that Deelavathi had lived with him in 1984 and 1985;
(3) accepted that a statement made by Deelavathi on 6 June 2013 was mistaken in saying that during her stay with him she had been aged between 16 to 18, whereas in fact she had turned 16 at the end of 1985;
(4) accepted that while in photo 1 Deelavathi was sitting on Chandraiah's lap and appeared to be about a year old, Ganikamma's statement dated 12 April 2013 said that in December 1969 Chandraiah returned to London – in this regard Tata added that he could not recollect when his father had returned to London.
E8. My assessment of the witnesses
F. Observations
F1. The identity concession
The Defendant's concerns about the evidence produced in this case surround whether the Claimant can show she is a British Citizen, not whether the Claimant can show she is Deelavathi Bondada.
F2. Careful scrutiny and guarding against fraud
F3. Assertions as to mandatory requirements
F4. Failure to engage
F5. The interview
G. My findings on the crucial questions
G1. The first crucial question: who fathered the siblings?
… therefore we are unable to ascertain whether your parents were together at the time of conception or not …
G2. The second crucial question: when was Deelavathi born?
G3. The third crucial question: were her parents married?
H. Conclusion