Guidance

Passport litigation: caseworker guidance

Published 21 March 2024

3.0

Guidance for His Majesty’s Passport Office staff that explains what happens when a customer decides to take legal action that relates to their passport or passport application.

About: Passport litigation cases

This guidance tells His Majesty’s Passport Office staff:

• why a customer who has a passport or made a passport application may take legal action

• what happens when a customer submits a:

  • Pre-Action Protocol

  • Judicial Review

  • county court claim

• what to do when the HM Passport Office Litigation team ask HM Passport Office:

  • operational staff (for example, examiners, counter staff, counter fraud officers or customer service teams) for information about a passport application

  • non-operational staff (for example, the Passport Policy team or Guidance team) for advice or information

Contacts

If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors then email the Guidance team.

If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then email the Guidance team.

Publication

Below is information on when this version of the guidance was published:

• version 3.0

• published for Home Office staff on 13 July 2023

Changes from last version of this guidance

This guidance has been updated with minor formatting changes.

Why customers may raise a litigation case

This section tells HM Passport Office staff why customers may raise a passport related litigation case (the process of taking a dispute to a court of law).

HM Passport Office will only issue a passport to a customer when we are satisfied with their nationality, identity and entitlement (see Royal Prerogative).

There is no legislation that tells us when we must (or must not) issue a passport, therefore customers do not have an automatic right of appeal, for example, if they:

• are not satisfied with a decision we’ve made and want to challenge it, such as, when we:

  • refused or withdrew a passport application

  • withdrew a passport or passport facilities

  • issued a passport with an error

• want to challenge our failure to make a decision

• have concerns about our policies or with the way we applied legislation

As there is no automatic right of appeal, customers may:

• make a complaint

• raise a litigation case (a process of taking a dispute to a court of law) by submitting a Pre-Action Protocol, Judicial Review or county court claim

Someone must have sufficient interest (or standing) in order to raise a litigation case. For example, for passport related cases, this could be the customer applying for their own passport or a parent applying for their child’s passport.

Pre-Action Protocols

This section tells HM Passport Office staff about Pre-Action Protocols (PAPs).

A Pre-Action Protocol (PAP) is a notice of intent from a customer (or their legal representative) to apply for a Judicial Review. They are also known as, a letter before claim or letter before action.

The customer (or their legal representative) must submit the PAP within 3 months of when we made a decision on their current application or their previously issued passport. Although the 3 month time limit is set out in Part 54 of the Civil Procedure Rules (CPR), it does not stop a customer (or legal representative) from submitting a PAP at any time during the application process. For example, when we have not made a decision on their application and they are not satisfied with how long it’s taking to process it.

A PAP allows HM Passport Office to resolve a customer’s dispute before it reaches a Judicial Review. For example, by re-checking the customer’s application and making an alternative decision in the customer’s favour (if it’s appropriate) or by providing clear reasons why we made the original decision.

Resolving a dispute at the PAP stage can reduce the costs, extra work and reputational damage associated with Judicial Reviews.

The HM Passport Office Litigation team deal with PAPs for Judicial Review claims that fall under Part 54 of the Civil Procedure Rules (CPR). The Customer Services Management team deal with PAPs for media and communication claims that fall under Part 53 of the CPR.

How a customer submits a Pre-Action Protocol

A customer (or their legal representative) may send their Pre-Action Protocol (PAP) to the:

• Home Office by:

  • post to Home Office Litigation Allocation, Unit 6 New Square, Bedfont Lakes, Feltham, Middlesex, TW14 8HA

  • email to the Home Office, who will, review and allocate the case to the HM Passport Office Litigation team’s mailbox

• HM Passport Office Litigation team by:

  • post to HM Passport Office Litigation team, 2nd Floor, Old Hall Street, Liverpool, L3 9BP

  • email to the HM Passport Office Litigation team

If you receive a PAP outside of the HM Passport Office Litigation team (for example, in examination, at the counter or in customer services), you must immediately:

1. Scan the PAP letter and any accompanying documents and email them to the HM Passport Office Litigation team (unless the size and amount of documents mean you cannot send them by email).

2. Send the hard copy of the PAP letter and any accompanying documents by internal post to:

Team Manager
Litigation team
2nd Floor
Old Hall Street
Liverpool
L3 9BP

If you could not email the PAP and accompanying documents to the HM Passport Office Litigation team (because of the size of the documents), you must email to them to explain you:

• received a PAP and include the name of the person who made it

• sent the PAP to them by internal post

Pre-Action Protocol rules and timescales

The HM Passport Litigation team has 14 days to deal with and respond to a Pre-Action Protocol (PAP), from the date it is received by:

• the Central Home Office Allocations team (if it was sent to the Home Office Allocations Unit)

• HM Passport Office (if it was sent to somewhere in HM Passport Office, for example, the Litigation team, Customer Service Centre or an Application Processing Centre)

This means, depending on where the customer (or their legal representative) sent the PAP, the HM Passport Office Litigation team may have less than 14 days to deal with it.

The process of sending and responding to a PAP is set out in the CPR and failure to comply with them can have legal consequences, including:

• receiving a fine from HM Courts and Tribunal Service

• incurring the customer’s legal costs if the case progresses to a Judicial Review (regardless who wins the Judicial Review)

Although the HM Passport Office Litigation team has 14 days to deal with and respond to a PAP, they may in rare cases, ask for an extension or send a holding response. If they do, HM Passport Office are still liable for the customer’s legal costs if the case progresses to a Judicial Review (regardless of who wins the Judicial Review).

When the Litigation team get a Pre-Action Protocol

When the HM Passport Office Litigation team get a Pre-Action Protocol (PAP), they will:

• review the PAP letter (and any accompanying documents)

• ask the higher executive officer of the HM Passport Office examination team or Counter Fraud team who dealt with the customer’s application for information about it (see When the Litigation team ask you about an application)

• review the actions, decisions and outcomes made on the application (and any correspondence we sent or received), to check if:

  • we dealt with the application correctly (in line with guidance)

  • we were fair, reasonable and proportionate

  • there are reasonable grounds to defend the case, should it progress to a Judicial Review

• ask the Guidance team or Passport Policy, Nationality Policy, or Public and Protection Standards for advice, if they have any doubts about the customer’s application (see When the Litigation team ask you about an application)

When the HM Passport Office Litigation team reach a decision on the PAP, they will respond to the PAP and either:

• maintain HM Passport Office’s original decision

• offer a review of HM Passport Office’s original decision by inviting the customer to make a new application with the aim of preventing a Judicial Review (the application may be gratis depending on the circumstances)

After the HM Passport Office Litigation team settle a PAP, there may be additional actions HM Passport Office need to carry out (see After the Litigation team settle a case).

Judicial Reviews

This section tells HM Passport Office staff about Judicial Reviews.

A Judicial Review is a type of legal challenge where an individual asks the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department.

If an individual feels a public body (for example, a government department) has exercised their powers unlawfully, they may apply to the courts for a Judicial Review in order to:

• challenge or dismiss a decision (also called ‘setting aside’) made by a public body

• apply for damages

Customers (or their legal representative) do not have to submit a Pre-Action Protocol (PAP) in order to make an application for a Judicial Review. They must however submit their application for a Judicial Review within 3 months of either:

• when HM Passport Office issued a decision letter relating to the customer’s passport application (if the customer did not submit a PAP)

• when the HM Passport Office Litigation team dealt with and provided a response to a PAP (if the customer submitted a PAP)

Although the 3 month time limit is set out in Part 54 of the Civil Procedure Rules (CPR), it does not stop a customer (or legal representative) from submitting a Judicial Review at any time during the application process. For example, when we have not made a decision on their application and they are not satisfied with how long it’s taking to process it.

As part of a Judicial Review, a judge:

• will consider the facts about the case

• will decide if the decisions made by the public body are lawful

• may make recommendations or orders about what must happen next

• may make mandatory orders (or injunctions) that force the public body to:

  • carry out its duties

  • stop it acting illegally

Judicial Reviews are an important legal process and as such, the HM Passport Office Litigation team deals with them. However, everyone else in HM Passport Office involved in a Judicial Review must treat it as an important part of a legal process. This is because of the timescales, costs, impact on other cases and future decisions, as well as possible reputational damage associated with Judicial Reviews.

How a customer applies for a Judicial Review

If a customer wants to apply for a Judicial Review against HM Passport Office, they (or their legal representative) must contact the:

• Government Legal Department (GLD) (in England and Wales)

• Office of the Advocate General (OAG) (in Scotland)

• Crown Solicitors Office (CSO) of Northern Ireland (in Northern Ireland)

The GLD, OAG or CSO are government lawyers and act as legal representatives in proceedings brought against central government departments.

When these government lawyers receive an application for a Judicial Review, they will send it along with any documents sent to the court (known as the ‘claimants bundle’ or ‘case bundle’) to the Litigation Allocation Unit (LAU). The LAU will allocate the Judicial Review to the HM Passport Office Litigation team for consideration.

Judicial Review application received outside the Litigation team

A customer (or their legal representative) may send an application for a Judicial Review to another team or department other than the HM Passport Office Litigation team or the LAU, for example, they may send it to:

• a counter

• an examiner or examination team

• a customer services team

If you receive an application for a Judicial Review, you must immediately:

1. Scan the Judicial Review application and any accompanying documents and email them to the HM Passport Office Litigation team (unless the size and amount of documents mean you cannot send them by email).

2. Send the hard copy of the Judicial Review application and any accompanying documents by internal post to:

Team Manager
Litigation team
2nd Floor
Old Hall Street
Liverpool
L3 9BP

If you could not email the Judicial Review application and accompanying documents due to the size of the documents, you must email the Litigation team to explain you:

• received a judicial Review application and include the name of the person who made it

• sent the Judicial Review application to them by internal post

Judicial Review process

The Judicial Review process is made up of several steps. While some of the steps include timescales for when something must be done, they:

• are slightly different for Judicial Review claims in Scotland and Northern Ireland

• may be shorter if the customer (or their legal representative) asks the appropriate court to deal with their Judicial Review quicker

For the purpose of these steps, we’ll refer to the:

• customer (or their legal representative) as the claimant

• HM Passport Office, along with the GLD, OAG and CSO of Northern Ireland as the defendant

Judicial Review process: step 1

When applying for a judicial review, the claimant will pay a handling fee and send 2 copies of the correct documents (including copies for HM Passport Office) to the court. These include:

• a HM Courts and Tribunals Service (HMCTS) Judicial Review claim form

• an indexed claimant bundle (or case bundle) made up of:

  • permission to apply for a Judicial Review

  • the outcome the claimant wants to achieve

  • a statement of facts

  • copy of the HM Passport Office decision letter

  • any relevant legal documents

  • any other documents or written evidence the claimant will rely on in court or the judge needs to consider

Within 7 days of sending the documents to the court, the claimant must submit the same documents to the defendant.

Judicial Review process: step 2

Within 21 days from when the court sealed the Judicial Review application, the defendant will:

• contact higher executive officers of the operational or counter fraud teams who dealt with the application, or other teams in HM Passport Office (for example, the Passport Policy team or Public Protection Services) if they need further information about an application (see When the Litigation team ask you about an application)

• decide whether to:

  • concede the case

  • defend the case

  • ask the court for an extension if they cannot meet the filing deadline (the defendant must pay a fee to file an extension and a court will only consider an extension if there’s a sufficient reason)

If the defendant decides to defend the case, they will:

• gather the documents they want to provide in support of their defence along with a summary of their defence (in the form of an acknowledgment of service)

• consider if any of the information in the documents need redacting (if the defendant needs support redacting information, they will contact the Guidance team)

• send the documents to the court

• flag the case to the Virtual Litigation team if they consider the challenge is a significant high profile case - this allows Home Office policy leads to:

  • be made aware of the case

  • carry out any interim actions

Judicial Review process: step 3

Once the court receives the documents from the claimant and defendant, the judge will review them to see if the claimant has provided sufficient evidence to show they have a case.

The judge will decide if there’s:

• a case to argue - if there’s a case to argue, see step 4

• no case to argue - if there’s no case to argue, the judge will:

  • note permission is refused within their ‘notification of the Judge’s decision’ with the reason why

  • note what costs must be paid and who must pay them

• a reason to postpone the case (for example, if there’s pending changes to legislation)

• a possible case to answer – if there’s a possible case to answer, the judge will speak with the claimant and defendant before deciding if there’s:

  • a case to answer

  • no case to answer

  • a reason to postpone the case

Judicial Review process: step 4

If a judge decides there’s a case to answer, they will:

• progress the case to a ‘substantive hearing’

• note any observations and case management directions in their ‘notification of the Judge’s decision’ and agree a date and time for the hearing

Within 35 days of when the judge sets the hearing date or grants permission for the case to progress, the claimant and defendant must submit any further:

• information they want to include in the claimant (or case) bundle

• detailed grounds for defence

• facts, written evidence or witness statements

• arguments

If the defence cannot meet the filing deadline, they can apply to the court for an extension (they must also pay a fee when they apply for an extension). The court will then decide whether or not to give an extension.

Judicial Review process: step 5

During the ‘substantive hearing’:

• legal Counsel will represent HM Passport Office

• the judge will hear the case

• it’s up to the defendants to prove their case (rather than the claimant)

Those who need to attend the hearing can include:

• witnesses

• members of the HM Passport Office Litigation team

• HM Passport Office operational and non-operational staff

Judicial Review process: step 6

If the defendants lose the case, they will receive one of the following orders:

• a Mandatory Order - an order that the defendant must do something, for example:

  • review the claimant’s case

  • to accept the claimant to be a British citizen

  • to accept the claimant is who they claim to be

• a Prohibiting Order - an order that the defendant must not do something, for example, they must not interpret legislation in a certain way

• an Injunction Order - an order that defendant must stop doing something, for example, they must stop asking the customer for certain pieces of evidence

• a Quashing Order - an order that the defendant must cancel the decision made on the customer’s application (this may mean we’ll need to invite the customer to make a new application so we can reconsider it)

Judicial Review process: step 7

After the hearing, the defendant will work with operational and counter fraud teams to carry out any necessary actions for the claimant (see, After the Litigation team settle a case).

Judicial Review process: step 8

At the end of the process, the defendant will:

• work with solicitors to negotiate and settle any costs

• arrange payment of costs through the Home Office Litigation Finance team

• close the case internally

County court claims

This section tells HM Passport Office staff about county court claims.

Customers have a right to make a legal claim to a UK county court (including through a small claims court). They usually do this when they want to make a claim for:

• compensation, for example, cancelled holidays

• a personal injury, for example, accidents at work or employment related problems

You can find out how customers can make a county court claim on GOV.UK.

The HM Passport Office Litigation team deal with customers who make a county court claim, however, the number of county court claims they receive are low due to HM Passport Office’s existing complaints procedures.

If you receive a county court claim outside of the HM Passport Office Litigation team (for example, in examination, at the counter or in customer services), you must immediately:

1. Scan the county court claim letter and any accompanying documents and email them to the HM Passport Office Litigation team (unless the size and amount of documents mean you cannot send them by email).

2. Send the hard copy of the county court claim letter and any accompanying documents by internal post to:

Team Manager
Litigation team
2nd Floor
Old Hall Street
Liverpool
L3 9BP

If you could not email the county court claim letter and accompanying documents to the HM Passport Office Litigation team because of the size of the document attachment, you must email them to explain you:

• received a county court claim letter and include the name of the person who made the claim

• sent the county court claim letter to them by internal post

When dealing with a county court claim, the HM Passport Office Litigation team may ask you for information about a customer’s application (see When the Litigation team ask you about an application).

When the Litigation team ask you about an application

The section tells HM Passport Office staff what to do when the HM Passport Office Litigation team ask for information about an application.

When the HM Passport Office Litigation team deal with a Pre-Action Protocol (PAP), Judicial Review or county court claim, they may need information from operational or counter fraud teams about a customer’s application, for example:

• the background to the application, for example:

  • the service the customer applied for (Premium service, Fast Track service or standard service)

  • the type of passport the customer applied for (first passport, renewal, or replacement)

  • when we received the customer’s application

  • when we made the final decision on the customer’s passport application

• the actions taken on an application and the reasons why

• the decisions made on an application and the reasons why

• the outcome of the application and the reason why we reached the outcome

• details about a complaint the customer made (if they made one), including:

  • why they complained

  • when they complained

  • the outcome of the complaint and the reason we reached the outcome

The HM Passport Office Litigation team may also ask non-operational teams for information, for example, they may ask:

• the Passport Policy team for information about when a policy changed

• Public Protection Standards for advice about possible fraud risks

• the Guidance team for information about guidance

If the Litigation team ask you for information

If the HM Passport Office Litigation team ask you for information, you must:

1. Treat the request as a priority (as the HM Passport Office Litigation team only have a limited time to deal with a PAP, Judicial Review or county court claim).

2. Complete the Case Summary and Chronology Template in full (if the HM Passport Office Litigation team asked you to complete it).

3. Immediately provide the HM Passport Litigation team with all the information they’ve asked for and within the timescale they gave you.

After the Litigation team settle a case

This section tells HM Passport Office operational staff what happens when the HM Passport Office Litigation team settle a Pre-Action Protocol (PAP), Judicial Review or county court claim.

When the HM Passport Office Litigation team settle a case, they will:

• share any learning outcomes with the higher executive officer of the examination or counter fraud team who dealt with the customer’s application

• work with operational and counter fraud teams to carry out any necessary actions for the claimant, for example:

  • if we need to invite the claimant to make a new, free of charge, passport application

  • checking any decision letters they send to the claimant are correct (when reconsidering an application as part of the settlement)

The Guidance team will be made aware of any potential updates to guidance needed as a result of a case being settled.