Report - Guardian

The LSE Identity Project Report: June 2005 163would become a prerequisite for a UK citizen to leave the country. In essence, theGovernment would be using the passport as a means to gather data about its citizensdisproportionate to the level of data needed to travel. 386Additionally, the trend in recent decades has been to strengthen the security features ofthe passport itself. To limit production of counterfeit passports or use of stolenpassports, new features have been added to make copying or alteration of details moredifficult. The introduction of a chip and a second biometric may do little to assist inpassport security. A second biometric is surplus to requirements and reintroduces theoutdated trend for passports to carry superfluous personal identifying details.Common Law Right to Leave the CountryThe right to leave the country is a fundamental legal right of each UK citizen. The rightof travel is enshrined in Article 42 of the Magna Carta, which in 1215 granted a right toexit and re-enter the realm – a right that has been directly relied upon in the Indiancourts. 387 In DPP v. Bhagwan, 388 Lord Diplock referred to the common law right of aBritish subject to come and go “without let or hindrance,” and this common law right isembodied in Section 1 of the UK Immigration Act 1971. 389However, this right is clearly of little use without the possession of a passport, which isa mechanism by which the right to enter and exit the UK is made administrativelyfeasible. Restricting that right to enter and exit by imparting onerous anddisproportionate measures to obtain a passport is tantamount to curbing the freedom ofevery UK citizen. It has been stated in the UK that the issue of a passport is the “normalexpectation of every citizen”, 390 and indeed, taking the requirement of a passporttogether with the right embodied in Section 1 of the Immigration Act, there must be aconcomitant right to a passport, 391 which can only be restricted in the limitedcircumstances to which that section applies. 392The Government must respect each UK citizen’s right to enter and exit the country andavoid imposing disproportionate conditions to obtain a passport as to make that right386 There is no entry requirement at present in any country for UK citizens to possess biometric data other than afacial image on their passport. Note that the US has reversed its decision recently that biometric details must beintroduced to EU passports by October 2005 to secure entry to the US.387 That right has been extended to a right to passport facilities in India, see Sawhney v. Assistant Passport Officer,Government of India (1967) Times, 15 April. Note that in the English case of Secretary of State for the HomeDepartment v. Lakdawalla [1972] Imm AR 62, the courts queried whether there is a right to passport stating that thefact there is no Act, rule or regulation dealing with the issue of passports confirms that a passport is merely aprivilege.388 [1972] AC 60.389 Note that the right in Section 1 is subject to the restrictions set out in that Act.390 See R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] QB 11 per Taylor LJ.However, note the House of Lords stated in 1958 that “No British subject has a legal right to a passport. The grant ofUK passport is a Royal Prerogative exercised through her Majesty’s ministers and in particular the ForeignSecretary,” see HL Official Report 209 (5th series) col 860 (Parliamentary Question).391 Note that the right to a passport has been held in the US to be a constitutional right, see Kent v. Dulles 357 US 116(1958) at 125-126; and in France the Cour de Cassation has held there is a right to leave France and that refusal of apassport may be a restriction of that right, see e.g., Cass.Civ. 1re 28/11/1984 RFDA 1985.760 concl. Sadon.392 Section 3A of the Act permits the Secretary of State to impose conditions on entry, which could extend to passportformat. However, where such conditions are so unreasonable as to make obtaining a passport undesirable, it isarguable that the right to enter and leave the UK has been curtailed.