RECOGNITION AS STATELESS IN THE UK : A FORM OF PROTECTION

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Statelessness can result in a denial of human rights. Recognition of a person as stateless provides them with an internationally recognised legal status and an ability for  access to travel documents.  However, the law in relation to statelessness  can be complex both in terms of submission of applications to the Home Office  and  in challenging resulting  adverse decisions from the Secretary of State.

 

 Issues in relation to  stateless challenges can arise out of a statutory  context  by way of an appeal or under the Immigration Rules by way of judicial review.  The background to the 1954 United Nations Convention relating to the Status of Stateless Persons is  set out at paragraphs 12 to 16 of the judgment of the Supreme Court in Secretary of State for the Home Department v Al -Jedda [2013] UKSC 6 , a case which  was concerned with a deprivation of British  citizenship. The  statutory context in which the appeal in Al-Jedda arose,  including Pham (Appellant) v Secretary of State for the Home Department (Respondent) [2015] UKSC 19 contrasts with the cases in the Upper Tribunal such as in   R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) IJR [2015] UKUT 00658 (IAC) and R (on the application of JM) v Secretary of State for the Home Department (Statelessness: Part 14 of HC 395) IJR [2015] UKUT 676 (IAC).

Al-Jedda and Pham were  concerned with interpretation of a particular statutory provision albeit within the context of Article 1(1) of the Stateless Persons Convention, however the above  mentioned Upper Tribunal  decisions  related to the proper approach to a decision challenged by way of judicial review in the context of Part 14 of the Immigration Rules.

(1)THE 1954  STATELESSNESS  CONVENTION

The Convention relating to the Status of Stateless Persons was adopted on 28 September 1954.  The UK signed it on that day and ratified it on 16 April 1959; and it came into force on 6 June 1960.  It recited the “profound concern” of the United Nations for stateless persons and the desirability of regulating and improving their status.  By Article 1(1), it defined a stateless person in terms which have become internationally authoritative, namely, as a “person who is not considered as a national by any State under the operation of its law”.  By the articles which followed, it identified a minimum level of treatment in specified respects which contracting states were required to afford to stateless persons within their territories. But it did not address the deprivation of citizenship when such was to cause statelessness.

The 1954 Convention, provides , inter alia:

“Article 1

definition of the term “stateless person”

  1. For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.
  2. This Convention shall not apply:

(i) To persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance;

(ii) To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country;

(iii)To persons with respect to whom there are serious reasons for considering that:

(a) They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(b) They have committed a serious non-political crime outside the country of their residence prior to their admission to that country;

(c) They have been guilty of acts contrary to the purposes and principles of the United Nations..

Article 26

freedom of movement

Each Contracting State shall accord to stateless persons lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Article 27

identity papers

The Contracting States shall issue identity papers to any stateless person in their territory who does not possess a valid travel document.

Article 28

travel documents

The Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other stateless person in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to stateless persons in their territory who are unable to obtain a travel document from the country of their lawful residence.

Article 31

expulsion

  1. The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.
  2. The expulsion of such a stateless person shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons

specially designated by the competent authority.

  1. The Contracting States shall allow such a stateless person a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 32

naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings”.

(2) THE 1961 CONVENTION ON THE REDUCTION OF STATELESSNESS

The 1961   Convention on the Reduction of Statelessness , complements the 1954 Convention relating to the Status of Stateless Persons and was the result of over a decade of international negotiations on how to avoid the incidence of statelessness. Together, these two treaties form the foundation of the international legal framework to address statelessness.

The 1961 Convention  was adopted on 30 August 1961. The UK signed it on that day and ratified it on 29 March 1966; and it came into force on 13 December 1975. Concerned, as its title suggests, with the reduction of statelessness rather than with the rights of stateless persons, the 1961 Convention obliged states to grant nationality to certain persons who would otherwise be stateless. But it also addressed the deprivation of citizenship when such was to cause statelessness. Article 8(1) prohibited a state from depriving a person of his nationality if such was to cause him to be stateless. Para 2 of the article specified two exceptions to the prohibition, of which the second was the situation in which the nationality had been obtained by misrepresentation or fraud. Para (3)(a) of the article provided the opportunity for a state to escape more widely from the prohibition if (i) at the time of its ratification of the Convention, its law were to provide for deprivation on, in effect, the ground of conduct seriously prejudicial to the vital interests of the state and (ii) at the time of ratification the state declared its retention of the right to deprive a person of citizenship on that ground.

(3)THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE  CHILD

The UNCRC also provides:

“Article 7

  1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
  2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless”.

(4)PART 14 OF  THE IMMIGRATION  RULES

The relevant Immigration Rules, which  came into effect on 6 April 2013 on the consideration of applications for leave to remain as stateless persons(including their family members a dependants) are contained in Part 14 between paragraph 401 and 416.

The main provisions are as follows:

“Definition of a stateless person

  1. For the purposes of this Part a stateless person is a person who:

(a) satisfies the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons, as a person who is not considered as a national by any State under the operation of its law;

(b) is in the United Kingdom; and

(c) is not excluded from recognition as a Stateless person under paragraph 402.

Exclusion from recognition as a stateless person

  1. A person is excluded from recognition as a stateless person if there are serious reasons for considering that they:

(a) are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance, so long as they are receiving such protection or assistance;

(b) are recognised by the competent authorities of the country of their former habitual residence as having the rights and obligations which are attached to the possession of the nationality of that country;

(c) have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(d) have committed a serious non-political crime outside the UK prior to their arrival in the UK;

(e) have been guilty of acts contrary to the purposes and principles of the United Nations.

Requirements for limited leave to remain as a stateless person

  1. The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant:

(a) has made a valid application to the Secretary of State for limited leave to remain as a stateless person;

(b) is recognised as a stateless person by the Secretary of State in accordance with paragraph 401;

(c) is not admissible to their country of former habitual residence or any other country; and

(d) has obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless.

Refusal of limited leave to remain as a stateless person

  1. An applicant will be refused leave to remain in the United Kingdom as stateless person if:

(a) they do not meet the requirements of paragraph 403;

(b) there are reasonable grounds for considering that they are:

(i) a danger to the security of the United Kingdom;

(ii) a danger to the public order of the United Kingdom; or

(c) their application would fall to be refused under any of the grounds set out in paragraph 322 of these Rules.

Grant of limited leave to remain to a stateless person

  1. Where an applicant meets the requirements of paragraph 403 they may be granted limited leave to remain in the United Kingdom for a period not exceeding 30 months.

Curtailment of limited leave to remain as a stateless person

  1. Limited leave to remain as a stateless person under paragraph 405 may be curtailed where the stateless person is a danger to the security or public order of the United Kingdom or where leave would be curtailed pursuant to paragraph 323 of these Rules.

Requirements for indefinite leave to remain as a stateless person

  1. The requirements for indefinite leave to remain as a stateless person are that the applicant:

(a) has made a valid application to the Secretary of State for indefinite leave to remain as a stateless person;

(b) was last granted limited leave to remain as a stateless person in accordance with paragraph 405;

(c) has spent a continuous period of five years in the United Kingdom with lawful leave, except that any period of overstaying for a period of 28 days or less will be disregarded;

(d) continues to meet the requirements of paragraph 403”.

 

(5)RELEVANT HOME  OFFICE POLICY GUIDANCE

The current  Home Office Policy Guidance  is,  “ Applications for leave to remain as a stateless person Date: 1st May 2013” and provides inter alia,

 “The guidance in this instruction is drawn extensively from the three sets of UNHCR guidelines, available on the UNHCR Refworld website, although it does not follow those guidelines in every respect. Where there are differences, this instruction must be applied.

 The new policy and procedure is primarily intended for those who do not qualify for refugee status or for Humanitarian Protection or any other form of leave under the Immigration Rules and who meet the 1954 Convention definition of a stateless person as “a person who is not considered as a national by any state under the operation of its law”. Leave to remain will not however be granted if an individual accepted as stateless is considered admissible to another country provided this is in accordance with the UK‟s international obligations.

 Any asylum claim accepted for substantive consideration takes priority over a stateless application, whether lodged before the application for stateless leave or disclosed in the course of consideration of the application. No consideration will take place until the individual‟s asylum claim has been finally determined or withdrawn. If an asylum claim succeeds or if other forms of leave are granted, an individual will not concurrently be eligible for leave to remain as a stateless person.

 Facts relevant to a determination of statelessness are a feature of some asylum claims. Findings of fact established during the asylum procedure, even though asylum or other forms of leave are not granted, may be relied upon in any subsequent application for leave to remain as a stateless person or in any decision in relation to such an application. ……

……………………….

The burden of proof rests with applicants, who are expected to do all they reasonably can to demonstrate their statelessness. A clear lack of cooperation or evidence of bad faith may lead to refusal of an application. Caseworkers must however be ready to undertake research or make enquiries of other national authorities where the applicant has been unable to obtain relevant information. …………….

3.2 Burden and standard of proof

The burden of proof lies with the applicant to establish his claim to be stateless with as much evidence as he can reasonably be expected to provide. However, caseworkers should make reasonable efforts to assist the applicant in establishing the necessary evidence, whether by research or enquiry.

 The applicant is required to establish that he or she is not considered a national of any State to the standard of the balance of probabilities, i.e. more likely than not, since the issues to be decided justify a higher standard of proof than the reasonable likelihood required to establish a well-founded fear of persecution in asylum claims, where the issue is the threat to life, liberty and person. For example, the apparent absence of a nationality will not meet the higher standard.

3.3 Gathering and assessment of evidence

Statelessness determination requires a mixed assessment of fact and law. The information that may be relevant can be divided into two categories: evidence relating to the individual’s personal circumstances obtained at interview and in writing, and the evidence concerning the law and practice in the country in question, both with regard to the individual concerned, and also to the group (or groups) of individuals to which the applicant belongs. The following guidance is drawn from the UNHCR procedural guidelines.

  • Documentary and testimonial evidence
  • Evidence concerning personal history helps identify the State (or States) whose nationality laws and procedures need to be considered in determining an applicant‟s nationality status. In any given case, the following examples of evidence may be relevant:
  •  testimony of the applicant (i.e. written application, interview);
  • response(s) from a foreign authority to an enquiry regarding nationality status of an  individual ;
  • identity documents (e.g. birth certificate, extract from civil register, national identity
  • card, voter registration document); NB: in some countries, women or members of ethnic minorities may have difficulty obtaining such documents due to discrimination.
  • passports (see below) or other travel documents (including expired ones);
  • documents regarding applications to acquire nationality or obtain proof of nationality;
  • certificate of naturalisation;
  • certificate of renunciation of nationality;
  • previous responses by States to enquiries on the nationality of the applicant; 
  • marriage certificate;
  • military service record/discharge certificate;
  • school certificates;
  • medical certificates/records (e.g. attestations issued from hospital on birth, vaccination booklets); 
  •  identity and travel documents of parents, spouse and children; 
  •  immigration documents, such as residence permits of country(ies) of habitual residence;
  • other documents pertaining to countries of residence (for example, employment documents, property deeds, tenancy agreements, school records, baptismal certificates); and record of sworn oral testimony of neighbours and community members.

Passports

Authentic, unexpired passports raise a presumption that the passport holder is a national of the country issuing the passport. However, this presumption may be rebutted where there is evidence showing that an individual is not actually considered to be a national of a State…………………..No presumption is raised by passports that are shown to be counterfeit or otherwise fraudulently issued.

Oral evidence at interviews

Where there is not as yet sufficient evidence for a positive decision to be made, an interview with an applicant will be an important part of the evidence gathering and an opportunity for the decision-maker to explore any questions regarding the evidence already presented, encouraging applicants to deliver as full an account as possible…………….. Language analysis cannot determine the nationality of an individual but may be considered in cases of real doubt as to an applicant‟s country or region of origin. Applicants who have not previously sought asylum should be reminded at the outset and at the conclusion of the interview that they may do so if they have a fear of return to the country of previous residence. These reminders must be recorded in the interview report.

Country research

Information concerning the circumstances in the country or countries under consideration, evidence about the nationality and other relevant laws, their implementation and the practices of relevant States, can be obtained from a variety of sources, governmental and non-governmental, including from UNHCR Refworld. If the information is not already in the Country of Origin reports or otherwise readily available, enquiries should initially be submitted to the Country of Origin Information Service (COIS) or, by agreement with COIS, with the Foreign & Commonwealth Office (FCO) and overseas posts.

Enquiries with representatives of overseas governments or authorities

Information provided by foreign authorities may be of central importance to stateless determination procedures, although not necessary if there is otherwise adequate evidence.

Under no circumstances is contact to be made with the authorities of a State (or with any official state-sponsored organisations) against which an individual has previously made an asylum claim unless it has finally been concluded (i.e. the applicant is appeals rights exhausted and has no outstanding further submissions) that he or she is neither a refugee nor entitled to subsidiary protection. Even so, there should be no disclosure of the details or the rejection of an asylum claim, and it would be good practice to ensure that the applicant consents to the contact even where the applicant has already approached those same authorities for assistance on nationality matters.

Where a response from the State includes reasoning that appears to involve a mistake in applying the local law to the facts of the case or an error in assessing the facts, the reply must be taken at face value, though it is open to the caseworker to seek clarification from the State concerned. It is the subjective position of the other State that is critical in determining whether an individual is its national for the purposes of the stateless person definition”.

 

(6)DEPRIVATION OF CITIZENSHIP AND STATELESSNESS

The British Nationality Act 1981 relevantly provides:

“40 Deprivation of citizenship.E+W+S+N.I.

(1) In this section a reference to a person’s “ citizenship status ” is a reference to his status as—

(a)a British citizen,

(b)a British overseas territories citizen,

(c)a British Overseas citizen,

(d)a British National (Overseas),

(e)a British protected person, or

(f)a British subject.

(2)The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(3)The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a)fraud,

(b)false representation, or

(c)concealment of a material fact.

(4)The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A)But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a)the citizenship status results from the person’s naturalisation,

(b)the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

(c)the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5)Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a)that the Secretary of State has decided to make an order,

(b)the reasons for the order, and

(c)the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).

(6)Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a)fraud,

(b)false representation, or

(c)concealment of a material fact.”.

(7)SOME RELEVANT CASELAW

  • Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62:

The Supreme  Court  began by  referring to the relevant law and stating that the Secretary of State for the Home Department cannot make an order which deprives a person of his British citizenship on the ground that it is conducive to the public good if she is satisfied that the order would make him stateless- referring to  Section 40(2) and Section 40(4)  of the British Nationality Act 1981.b The appeal  in the Supreme Court  raised the  question if at the date of the Secretary of State’s order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so.

At the time of the appeal in the Supreme Court, the Respondent was living in Turkey with his third wife and all eight of his children.

The Respondent was born in Iraq in 1957 and inherited Iraqi nationality. In 1992 he came to the UK and sought asylum. In 1998 he was granted indefinite leave to remain in the UK and on 15 June 2000 was  granted British nationality. The effect of his acquisition of British nationality was that he  automatically lost his Iraqi nationality pursuant to Article 11 of the Iraqi Nationality Law No 43 of 1963.

In September 2004, the Respondent travelled from the UK to Iraq. In October 2004 US forces in Iraq arrested him and transferred him into the custody of British forces. For more than three years,  until 30 December 2007, British forces detained him in Iraq, without charge, on grounds of his suspected membership of a terrorist group. Following his release he remained in Iraq until 3 February 2008, when he travelled to Turkey.

The order by which the Secretary of State deprived the Respondent of British citizenship was made shortly prior to his release from internment. As required by Section 40(5) of the Act, her order was preceded by a letter, dated 12 December 2007, by which she notified  the  Respondent  that she had decided to make the order on the ground that, for four reasons which she specified, she was satisfied that it would be conducive to the public good. Pursuant to Section 40A(2) of the Act, she certified in the letter that the decision was taken wholly or partly in reliance on information which in her opinion should not be made public, with the result that, under Section 2B of the Special Immigration Appeals Commission Act 1997, his right of appeal lay to that Commission,  rather than to the First Tier Tribunal.

On 11 January 2008 when the Respodent  issued his notice of appeal to the Commission against the Secretary of State’s order dated 14 December 2007, one of his grounds of appeal was that the order had made him stateless and was therefore void. Protracted proceedings followed up until  the Court of Appeal via  its order under current appeal, set aside, as erroneous in law, the Commission’s conclusion that prior to 14 December 2007 the Respondent had automatically regained Iraqi nationality, whether under Article 11(c) or under Article 10(1). As observed by the Supreme Court in their judgement at paragraph 11, they referred to the Court of Appeal judgment with which Stanley Burnton and Gross LJJ agreed, Richards LJ rejected the alternative contention in the following terms:

“120. I am prepared to assume that if an application were made for the restoration of the appellant’s Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt. I also put to one side the objections raised by Mr Hermer as to the practicality of the appellant making an application at all: he submitted that an application would have to be made by the appellant in person, and for that purpose the appellant would have to enter Iraq legally and would therefore require a visa, which would lie in the discretion of the State and could be refused on national security grounds.

121.I would reject the Secretary of State’s argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality. The effect of the order would therefore be to make him stateless. That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future.”

It was therefore against this determination that the appeal was brought by the Secretary of State in the Supreme Court. The Secretary of State invited the Court to determine the appeal on the premise   that on 14 December 2007,  the Respondent could have applied to the Iraqi authorities for restoration of his Iraqi nationality; that under Iraqi law he then had a right to have it restored to him; and that its restoration would have been effected immediately.

The Supreme Court noted that in rejecting the Secretary of State’s contention that the Respondent had regained Iraqi nationality automatically under article 10(1) of the Iraqi Law of Nationality 2006, which was in force on 14 December 2007, Richards LJ had said: “117. In my judgment, the relevant factors come down strongly in favour of the view that the Iraqi courts would find the appellant’s situation to be covered by Article 10(3), not by Article 10(1), and that the restoration of his Iraqi nationality depends on his meeting the conditions of Article 10(3), including the making of an application for its restoration.” The Supreme Court noted that it was clear, that paragraph (3) of the article would have required the Respondent (a) to return to Iraq legally, (b) to stay there for at least one year, as well as (c) to apply in the course of the year for restoration of his Iraqi nationality. In the event that the Respondent fulfilled these requirements, the Minister “may” restore Iraqi nationality to him, with retrospective effect to the date of his return. The Secretary of State had  not taken issue with the contention made  on behalf of the Respondent, that in the end all the experts who gave evidence at the second hearing before the Commission were agreed that, the word “may” connotes that the Minister nevertheless retained  a discretion to refuse the application.

The Suprema Court went on to determine the   point, namely whether an order for deprivation made against a person who, at its date, can immediately, by means only of formal application, regain his other, former, nationality is invalid under Section 40(4) of the Act.

The Supreme Court stated that Section 40(4) does not permit, still less require, analysis of the relative potency of causative factors. In principle, at any rate, the inquiry is a straightforward exercise both for the Secretary of State and on appeal: it is whether the person holds another nationality at the date of the order. It was noted that a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re-acquire another nationality would mire the application of the subsection in deeper complexity.

The Supreme Curt stated that Parliament would have been capable of making an addition to section 40(4). After the words “would make a person stateless”, it could have added the words “in circumstances in which he has no right immediately to acquire the nationality of another state”. But it did not do so; and it was noted by the Court  that  the Secretary of State was  inviting  the Court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection.

The Supreme Court further noted that on 20 February 2012,  the United Nations High Commissioner for Refugees , issued “Guidelines on Statelessness No 1”, HCR/GS/12/01, in which he addressed some of the effects of the authoritative definition of a stateless person in article 1(1) of the 1954 Convention.  It was observed by the Court that paragraph  43 of his guidelines, entitled “Temporal Issues”, had been incorporated, word for word, into the Home Office guidance on “Applications for leave to remain as a stateless person” dated 1 May 2013. The Guidance was noted to  state:

“3.4 … An individual’s nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition.”

The Supreme Court concluded that the Secretary of State’s own guidance eloquently exposed the fallacy behind her appeal.

*Note: As noted at paragraphs  12 and 29  in JM, R (on the application of) v Secretary of State for the Home Department (Statelessness: Part 14 of HC 395) (IJR) [2015] UKUT 676 (IAC),  Section   40(4A)(c) of the British Nationality Act 1981 had been put in place to address the outcome of Al-Jedda.

  • Pham (Appellant) v Secretary of State for the Home Department (Respondent) [2015] UKSC 19:

The Supreme Court observed that the central issue in the appeal was whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turned on whether (within the meaning of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) he was “a person who is not considered as a national by any state under the operation of its law”. If this issue  was  decided against him , the Appellant  also sought  to argue that the decision was disproportionate and therefore unlawful under European law.

The Appellant was born in Vietnam in 1983 and thus became a Vietnamese national. In 1989, after a period in Hong Kong, the family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 they acquired British citizenship. Although none of them ever held Vietnamese passports, they had taken no steps to renounce their Vietnamese nationality. The Appellant was educated in the UK  and attended college in Kent. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he was said to have received terrorist training from Al Qaida. It  was  the assessment of the security services that at liberty he would pose an active threat to the safety and security of the UK. That assessment had not yet been subject to judicial examination.

On 22 December 2011 the Secretary of State served notice of her decision to make an order under section 40(2) of the British Nationality Act 1981 depriving the Appellant of his British citizenship, being satisfied that this would be “conducive to the public good”. She considered that the order would not make him stateless (contrary to section 40(4)) because he would retain his Vietnamese citizenship. The order was made later on the same day and served on the Appellant, followed by notice of her decision to deport him to Vietnam. Thereafter, the Vietnamese government declined to accept him as a Vietnamese citizen.

On 13 January 2012, the Appellant appealed against the decision to remove his British citizenship on legal and factual grounds. His grounds of appeal asserted (inter alia) that he was married to a British citizen with a child, that he was of good character and was not linked to terrorism as claimed, and that the decision was incompatible with his rights under the European Convention on Human Rights. He also claimed that deprivation of British citizenship was prohibited by section 40(4) because it would render him stateless. This was on the grounds that Vietnamese law did not permit dual nationality, and accordingly his Vietnamese citizenship had been lost when he became a British citizen. The Secretary of State had certified (under section 40A(2)) that her decision had been taken in part in reliance on information, disclosure of which would be contrary to the public interest. His appeal accordingly lay to the Special Immigration Appeals Commission (SIAC).

Following proceedings considered by the Commission and the Court of Appeal, the matter  came up to the  Supreme Court. At  paragraph 31 of their judgement, the Supreme Court summarised the relevant  issues as follows:

“i) When determining whether a person is considered as a national of a State under the operation of its law (as that phrase is used in Article 1(1) of the 1954 Convention):

 

a) Whether that question is to be decided by reference to the text of the nationality legislation of the State; or

b) Whether the operation of the law of that State is to be taken to include the practice of the government to make decisions which cannot be challenged effectively in the courts.

ii) When considering if it would be lawful to deprive a person of his British citizenship when that deprivation would entail loss by him of citizenship of the EU, whether such consideration falls within the ambit of EU law and whether any (and if so what) consideration must be given to the question of proportionality.

iii) If so, whether it would necessarily be disproportionate and therefore unlawful under EU law to deprive the appellant of his British citizenship for the sole reason that the Vietnamese government does not consider the appellant to be a Vietnamese national under the operation of Vietnamese law, in circumstances in which the appellant has no other nationality”.

Lord Carnwath gave the leading judgement.

As regards Issue (i) in relation to the interpretation of the 1954 Convention, the Supreme Court accepted that in the light of the guidance now available to them, but not to the Court of Appeal, it was clear that, as understood by the UNHCR at least, the term “law” was to be interpreted broadly as including ministerial decrees or practices, even if not subject to court review, and even where they appear to depart from the substance of the domestic law.  Familiar principles of the rule of law, as it would be understood in this country, are not the governing consideration(paragraph 34).  Lord Carnwath accepted in conclusion  that the question arising under Article 1(1) of the 1954 Convention in this case was not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question, and that reference may also be made to the practice of the government, even if not subject to effective challenge in the courts. However, there was in Lord Carnwath’s  view no evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non-national “by operation of its law”, even adopting the broadest view of those words as interpreted by the UNHCR; nor in any event of one which was effective at the date of the Secretary of State’s decision. The appeal under this ground was dismissed(paragraph 38).

In relation to issues (ii) and (iii) as regards application of European law, Lord Carnwath observed that these issues raised a new question as to whether the Secretary of State’s decision fell with the ambit of European law, given that its effect would be to deprive him not only of British citizenship, but also of citizenship of the European Union; and if so what if any consideration must be given to the “proportionality” of the Secretary of State’s action under well-established principles of European law.  It was noted that ability to rely on European law would also, it was being  said, offer significant procedural advantages identified in ZZ (France) v Secretary of State for the Home Department [2013] QB 1136, which would not be available under domestic law. The Appellant’s case on proportionality as submitted on his behalf was that it cannot be proportionate to deprive a person of their EU citizenship, in circumstances in which no other state will recognise them as a national so that they will be denied all the benefits of any citizenship anywhere. Further, the proportionality principle will be violated if there are less onerous means of achieving the same aim. Where no other state will accept the Appellant as a national, there is no reason to think that the objective of removing him from this country will be achieved. The risk to national security is better addressed by other powers available to the Secretary of State to manage the risk, such as under the Terrorism Prevention and Investigation Measures Act 2011.

It was admitted on behalf of the Appellant that these issues were not raised before  the Court of Appeal. The Supreme Court stated that issues (ii) and (iii) raised a number of difficult issues, which may require detailed consideration either in the Supreme Court or in Europe. However, the prior question was  whether the European law aspects were  properly before the Supreme Court  at all for decision. In Lord Carnwath’s  view they were not. The scope of the present appeal was  limited by reference to the preliminary issue defined by SIAC by its order of 1 February 2012, which was confined to the narrow question of statelessness under section 40 of the 1981 Act, and made no mention of issues of European law.  It seemed  clear to Lord Carnwath  that the issue of EU law would raise difficult issues, even before reaching the question of a reference to the European court.  It was   important,  in Lord Carnwath’s view  that SIAC, as the tribunal of fact, should first identify the respects, if any, in which a decision on these legal issues might become necessary for disposal of the present case.  It was noted that Mr Southey on the Appellant’s behalf  relied in general terms on the EU requirement of proportionality, but he had not shown how (whatever its precise scope in EU law) it would differ in practice in the present case from the issue of proportionality already before SIAC under the European Convention, or indeed from principles applicable under domestic law.  Lord Carnwath   therefore  decline to answer the questions raised by issues (ii) and (iii).

The appeal was dismissed and the Supreme Court confirmed  the order of the Court of Appeal remitting the case to SIAC.

  • R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) IJR [2015] UKUT 00658 (IAC):

The Applicant sought to challenge by way of judicial review, the decision of the Respondent, the Secretary of State for the Home Department dated 29 October 2013, rejecting  the  Applicant’s application for limited leave to remain in the United Kingdom as a stateless person under paragraph 403 of the Immigration Rules.

The Applicant had been in the United Kingdom for approximately seven years and applied unsuccessfully for asylum at an early stage. His application for leave to remain as a stateless person was made on 17 June 2013.  It was  based on his claim that he was “an undocumented Kuwaiti Bidoon”.  It was noted  that when the Applicant underwent his stateless person interview on 09 July 2013, upon being asked to participate in language analysis as part of the decision making process he refused.  By the terms of the decision the Secretary of State accepted  that the Applicant was  indeed Kuwaiti Bidoon.  The critical issue was  formulated as being whether he was “documented or undocumented”.  The decision noted that during interview the Applicant confirmed that he had been issued with a birth certificate.  The decision further recorded that in previous Tribunal determinations, while it was accepted that the Applicant was  a Kuwaiti Bidoon there was no finding on the “documented or not” issue.  Continuing, the decision, noted that during the asylum screening interview the Applicant stated that he had a Kuwaiti identity card and that his subsequent attempt to retract this statement was later rejected by Immigration Judge Dickinson.  On this basis, the decision maker concluded that the Applicant  was a documented Kuwaiti Bidoon. Next, the decision highlighted the discrepancy in the Applicant’s stateless personal  interview, arising out of his statement that he was in Libya from 1999 to 2007 (rather than one year, from 1999).  The decision maker then suggested a contradiction between the Applicant’s earlier statement that his mother is Libyan and his claim not to have Libyan nationality.  The decision also drew on a Country of Information Report relating to Libya, dated March 2012, indicating that any child born of a Libyan mother thereby acquires Libyan citizenship.  The gist of the Respondent’s decision was that based upon the objective information and the negative credibility findings previously cited, it was  not accepted that  the Applicant  was  not entitled to some form of Libyan nationality or residence based upon his  mother’s nationality. As the applicant  had not submitted any fresh evidence to demonstrate that he was  not entitled to Libyan nationality and  he had  refused to undergo language analysis, notwithstanding that he may be a Kuwaiti Bidoon, it was  considered  by the Secretary of State that  the Applicants had  a claim to Libyan nationality. The Applicant was also considered  to  have provided no evidence to substantiate his claim that he was  an undocumented Bidoon.  Furthermore, it was  considered that  the Applicant had  a claim to Libyan nationality. The Secretary of State therefore concluded that the Applicant did not qualify for leave to remain as a stateless person. The Applicant’s claim was, therefore, refused under paragraph 404 of the Immigration Rules.

The Applicant’s refined grounds of  challenge were  two basic contentions:(a)There was a failure to give proper effect to the Secretary of State’s published policy and (b)further, or alternatively, the impugned decision  was vitiated by irrationality. The first of the  grounds of challenge was  founded on the Secretary of State’s Guidance,  published on 01 May 2013.  The Applicant also sought  to re-open, if permitted, a ground upon which permission to apply for judicial review was refused. The gist of this ground  was that the impugned decision  was  infected by error of law on the basis that the decision maker focused on the question of whether the Applicant was stateless, rather than the question of whether he is a documented or undocumented Kuwaiti Bidoon.

Whilst it was acknowledged on behalf of the Appellant, that prior to receipt of the Applicant’s statelessness application the Secretary of State’s officials had made certain enquiries of both the Libyan and Kuwaiti Embassies in the United Kingdom, he submitted that the making of the Applicant’s application subsequently triggered the Secretary of State’s policy guidance (and, thus, gave rise to proactive duties of enquiry and assistance). An irrationality ground complained that the Secretary of State failed to take into account that Immigration Judge Dickinson, in his decision of 06 March 2009 dismissing the Applicant’s asylum appeal, erred in law in relation to Libyan nationality law in his assessment of the Applicant’s ability to acquire Libyan Nationality by descent.  The Upper Tribunal noted that properly, this error was  not contested on behalf of the Secretary of State and was, in their  view, manifest.

The Upper Tribunal observed that relevant rules of international law viz Article 1 of the Convention and those of domestic law namely paragraphs 401-403 of the Immigration Rules are in harmony.  The Upper Tribunal considered it unexceptional that in any case where a statelessness decision is to be made under the operative provisions of the Immigration Rules the crucial question for the decision maker is, in the language of Article 1(1) of the 1954 Convention, whether the person is “considered as a national by any state under the operation of its law”.   This definition demanded  careful analysis.  It consists of four interlocking components: “considered as ……. a national …. by any state ….. under the operation of its law”.  Decision makers must address each of these components in every case.

The Upper Tribunal considered that at a practical level, the question of whether the definition of statelessness is satisfied will frequently require an assessment of whether the person concerned possesses or has access to a document, such as a passport or a national identity card or something kindred, which denotes that the individual is recognised by one of the states of the world as one of its nationals.  This will form part of the enquiry, assessment and decision in the generality of cases of this kind. Furthermore, it is appropriate to observe that most cases are likely to involve a significant measure of evaluative assessment, to be contrasted with stark fact finding, on the part of the decision making official.  The Upper Tribunal stated that the  decision making process in all statelessness cases is overlaid by the mantle of public law.  The principle of public law most obviously engaged is the requirement to identify and then take into account all relevant considerations.

The Upper Tribunal stated that the decision maker must take reasonable steps to acquaint himself with the relevant information. It was noted that in the evolution of public law during the four subsequent decades, this has sometimes been coined the “duty of enquiry”.  It is not an absolute duty.  Rather, it imports the standard of reasonableness.  In the present context, it coexisted  with, and gave emphasis to, the obligations of enquiry specifically imposed on the decision maker by the Secretary of State’s policy Guidance

The main thrust of the Applicant’s challenge was that the Secretary of State, in making the impugned decision, failed to have regard to and/or give effect to the relevant policy guidance. The Upper Tribunal stated that where a challenge of this kind is made, it is necessary to identify the public law duties associated with such an instrument. It was considered that the policies of public authorities are not merely material considerations to be taken into account by the decision maker. Rather, they trigger (as regards the public authority) a duty to give effect to their terms, absent good reason for departure and (as regards the citizen) a corresponding right or expectation.  The  Upper Tribunal  however noted that the Court will frown on attempts to subject documents such as instructions to case workers to any “high level of pedantry” when construing their meaning.  Subtlety and sophistication which would not be reasonably appreciated by the citizen will gain no traction.

The Upper Tribunal noted that the public law duties associated with and flowing from the Instruction, required the decision maker to be alert to the Instruction, being an indisputably material consideration, and to give conscientious attention to its contents. The Upper Tribunal’s  evaluation of the evidence as a whole impelled inexorably to the conclusion that these elementary duties were not discharged.

The Upper Tribunal acknowledged that it is not obligatory to take specified steps and to follow certain courses in every decision making process of this kind.  This analysis was  fortified by the overlay of public law principles. However, there was a duty on the caseworker to be alert to these choices and to conscientiously consider them.  The Upper Tribunal  stated that they could identify no other evidence, direct or inferential, to  warrant the conclusion that this basic duty was performed.  Furthermore, the importance of this duty was  reinforced by the analysis that the further steps and enquiries specified in the Instruction were clearly expected to be undertaken in the generality of cases.  The Upper Tribunal added that it cannot realistically be contended that further enquiries would inevitably have been pointless. The Upper Tribunal concluded that the Applicant has made good his primary ground of challenge.

As regards the second ground of challenge, the irrationality challenge, which focused mainly on the decision of the AIT, the Upper Tribunal accepted that this decision contained two notable errors: first, the Judge’s incorrect exposition of Libyan nationality laws and, second, his factual error relating to the maximum possible duration of the Applicant’s sojourn in Libya (eight years, not ten). A further aspect of this challenge was  the conflicting assessment in the later decision of the FtT (Asylum Support) that the Applicant  was not entitled to Libyan nationality by descent via his mother.

In relation to adjudication on the second ground of challenge by identifying and applying the main public law duty on the decision maker, in this context, the duty engaged was to take into account all material facts and factors.  This included the two previous judicial determinations. These determinations required of the decision maker careful analysis and reflection, as opposed to wholesale and slavish submission. The effect of the Wednesbury principles is that in public law, provided that all material facts and considerations are recognised and scrutinised by the decision maker, the ensuing decision will be unimpeachable unless the elevated standard of intervention of irrationality is overcome.

It was noted that the high water mark of the Secretary of State’s case was that the Applicant resided in Libya from 1999 to 2007.  The unequivocal import of the decision maker’s assessment  that the Applicant was  “entitled to some form of Libyan nationality or residence” was based solely upon his mother’s Libyan nationality. This assessment, a pure question of law, was  confounded by the evidence of Libyan nationality laws.  Such evidence yields the conclusion that a person who is the direct descendent of a Libyan national (viz persons such as the Applicant) must reside in Libya for a period of 10 years in order to acquire Libyan nationality.  This analysis was  not contested on behalf of the Secretary of State.  The Upper Tribunal noted that the question of whether the Applicant is a national of Libya is a mixed question of fact and law.  The upper Tribunal pronounced that, having regard to the extant evidence of (a) the relevant factual matters and (b) Libyan nationality laws, the Applicant was not a national of Libya.    The effect of this analysis was that the Secretary of State’s decision was  vitiated by error of law.

The Upper Tribunal also noted that in its recent decision in Pham v Secretary of State for the Home Department [2015] UKSC 19, the Supreme Court, in considering this issue, reflected on the special role of the UNHCR  and, specifically, its guidance published in February 2012 and June 2014.  This contains some emphasis on the implementation of a state’s nationality laws and state practice in this regard. The Upper Tribunal noted that  Lord Carnwath did not express a concluded view on either the relevant provisions of the UNHCR guidance or the policy guidance of the Secretary of State, however, delivering the majority judgment, he answered the first question of law to be determined in the following terms, at paragraph 38:

“…. I would accept that the question arising under Article 1(1) of the 1954 Convention in this case is not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question … reference may also be made to the practice of the Government …..”

The Upper Tribunal stated that reverting to their  breakdown of the several components of Article 1(1) of the 1954 Convention, they  considered that this conclusion highlighted  the importance of the words “not considered to be a national by any state”. Secondly, this conclusion established that a broad meaning is to be ascribed to the words “under the operation of its law”. The Upper Tribunal noted that the Supreme Court did not endorse the reasoning of the Court of Appeal.

The Upper Tribunal further concluded that the impugned decision was unsustainable in law on a further basis. It was stated that in every case where a statelessness decision is to be made under the operative provisions of the Immigration Rules the crucial question for the decision maker is, in the language of Article 1(1) of the 1954 Convention, whether the person is “considered as a national by any state under the operation of its law”.  Both the international legal rules and their domestic counterparts require a determination of the recognition issue in the present. This  the Upper Tribunal  considered to be clear from the language used. The main ground upon which the Applicant’s application was refused was the assessment that he was considered to have “a claim to” Libyan nationality.  The  Upper Tribunal  considered that the decision maker misdirected himself in law.  The Upper Tribunal stated that the  question which should have been addressed, and answered, was whether the Libyan government recognised the Applicant as one of its nationals at the time when the decision was made. The decision maker, in  the Upper Tribunal’s  judgment, failed to pose and answer this key question.  Moreover, it was in conflict with the policy Instruction, which specifically  emphasised:

“….it is [the] position [of the government concerned] rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

The Upper Tribunal considered therefore that the decision-maker had, simultaneously, lapsed into an error of law and a breach of the policy.

Whilst quashing the decision of the   Secretary of State’s decision, the  Upper Tribunal warned the Applicant as follows:

“31.In the further decision making process which must now be undertaken, the Applicant would be well advised to remember that there is a duty of mutual co-operation and, further, that any unreasonable refusal on his part to actively co-operate and participate could operate to his disadvantage. Decision making in statelessness cases is not a one way street. There is scope for future development of the law with reference to the conduct of the claimant in the formulation and presentation of his claim and his role in the ensuing decision making process”.

  • R (on the application of JM) v Secretary of State for the Home Department (Statelessness: Part 14 of HC 395) IJR [2015] UKUT 676 (IAC):

The case concerned an application for judicial review of the Secretary of State’s decision of 27 May 2014 refusing to recognise the Applicant as a stateless person.

The applicant was a child, born on 20 March 2013 in the United Kingdom. His mother was  a Zimbabwean national, his  father a Portuguese citizen, who upon learning  that the  Applicant’s mother was pregnant with the Applicant, wished the pregnancy to be terminated however  she did not agree and this led to a breakdown in the relationship. The father was  said to have made it clear that he did not wish to be involved in his son’s life and would not assist in obtaining his registration as a Portuguese citizen. The application under paragraph 403 of HC 395 was made under cover of a letter of 6 December 2013. In her decision letter the Respondent noted that there were no valid reasons why the Applicant’s mother could not register his birth as required under the Zimbabwean Constitution and there were no valid reasons why she could not return to Zimbabwe with the applicant. It was said that the applicant was entitled to make an application to be registered as a Zimbabwean national and though his mother’s Zimbabwean passport had expired this could be renewed at the Zimbabwean Embassy in London. It was considered that he was clearly a Zimbabwean citizen and was therefore not considered to be stateless. It was concluded that in light of all the evidence, the applicant did not qualify for leave to remain as a stateless person under paragraph 403 of HC 395 as he was not considered to be stateless. He had failed to demonstrate that he was a person who was not considered as a national by any state under the operation of its law and had failed to satisfy the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons and paragraphs 403(b), (c) and (d) of HC 395. It was not accepted that he was a stateless person as defined within the Rules and he had not met the requirements to be granted limited leave to remain as a stateless person.

On behalf of the Applicant, also put forward  was  the question of the standard of review and it was argued that, as set out in Pham v Secretary of State for the Home Department [2015] UKSC 19 and also in R (Lord Carlile) v Secretary of State for the Home Department [2014] UKSC 40, a greater intensity of review was appropriate in a case such as this where the court had institutional expertise and the constitutional proprieties concerning the separation of powers between the branches of government were respected. It was important to bear in mind that there was no longer insistence on uniform application of the rigid test of rationality but it depended very much on the context. It was appropriate to impose an exacting and intense standard of review in a case such as this where it involved a question of whether the United Kingdom was complying with its international obligations, particularly where that obligation was provided for in domestic law and policy and involved an extension of surrogate protection for a person subject to the UK jurisdiction who lacked any country to call his own and was part of a corpus of international human rights treaties, not just governing relations between states but providing rights upon which individuals might rely. There was no need for deference to the executive, and the Tribunal had extensive institutional expertise. The Supreme Court had relied upon the UNHCR interpretation of the treaty without demur. It was argued  that it was the case that section 40(4A)(c) of the British Nationality Act 1981 had been put in place to address the outcome of Al-Jedda but no change correspondingly had been made in the Immigration Rules.  The use of the term “admissible” at paragraph 403(c) was not about the acquisition of nationality but whether the person was returnable, for example if they were not a national but had a visa or leave of some kind. As regards the point that the Secretary of State would make that the child had a constitutional right to be a Zimbabwean citizen and his mother could register the birth, it was a question of whether he would get an immigration document and it was not a given that he would be admitted simply as a child of a Zimbabwean national. The relevant question was whether the applicant was stateless today and not whether he should be granted citizenship. It was a question of temporary relief. It was not a predictive exercise, as was clear from the UNHCR guidelines on statelessness and the Respondent’s guidance. There had been no response to the enquiries made with the Zimbabwean Embassy, so the matter did not fall foul of paragraph 403(d).

The Upper Tribunal noted that it was   necessary to recognise the statutory context in which the appeal in Al-Jedda arose, as contrasting with the judicial review context within which they were  operating. It is also the case that Al-Jedda was concerned with interpretation of a particular statutory provision albeit within the context of Article 1(1) of the Stateless Persons Convention, whereas the Upper Tribunal had to  consider the proper approach to a decision challenged by way of judicial review in the context of Part 14 of the Immigration Rules.

Having referred to several caselaw, the Upper Tribunal stated that they   agreed with submission made on behalf of the Applicants  that a more intense level of review of the Respondent’s decision was  appropriate, but it is necessary to bear in mind that that scrutiny was in the context of a decision under the Immigration Rules and not under statute.

The Upper Tribunal noted that it was relevant to consider why the word “recognised” is employed in paragraph 403(b) of the Immigration Rules. It was  relevant also to note that paragraph 403(b) was  tied in with the definition in paragraph 401 of a stateless person as a person who satisfies the requirements of Article 1(1) of the Stateless Persons Convention. The Upper Tribunal considered that the  point was  not a straightforward one. It could not be right that the Respondent was  entitled at whim to decide whether or not to recognise a person as stateless, which might be seen to be an implication of  the Respondent’s argument. Her  argument, was that there was a proper basis for non-recognition, in that, there was  no reason why the Applicant’s mother could register his birth in accordance with the requirements of the Zimbabwean Constitution; he would be recognised as a citizen of Zimbabwe as soon as his birth is registered; and his mother had no basis for remaining in the United Kingdom and had taken a deliberate decision to continue to reside here instead of registering his birth. The Upper Tribunal noted that a difficulty with this argument was that the wording of paragraph 403(b) strongly suggested that, in effect, choice is taken away from the Secretary of State where it is clear that, under paragraph 401, the person in question is a person who is not considered as a national by any state under the operation of its law, which, it may be said, as matters stood was  the position of the applicant. Where that was the case, it was difficult to see a basis on which the Respondent could decline to recognise the person. It was noted that paragraph 403(b) essentially took  its tone from paragraph 401.

It was however clear in the Upper Tribunal’s  view that the requirements set out in paragraph 403 are cumulative and hence, even if the Secretary of State recognises a person as stateless, he will still have to show that he meets the criteria set out in paragraph 403(c). This very much turned on the meaning of the word “admissible” in that provision.  The Upper Tribunal  agreed with the Respondent  that it was  proper to interpret this as meaning that a person is either a national of the country or entitled to be a national of the country rather than reading the word “admissible” as meaning that it could apply only to nationals of the state in question. It was considered that on the Applicant’s own case he was  entitled to be a national of Zimbabwe subject to fulfilling the registration requirement. The fact of recognition of a person as being stateless can be distinguished from the situation of a person who is recognised as stateless and is not admissible to any other country.  Hence it is open to the Respondent in the Upper Tribunal’s view to recognise a person to be stateless but to refuse them as she is not satisfied that the person is not admissible to another country, in this case Zimbabwe. The Upper Tribunal considered that even bearing in mind the need for particularly close scrutiny of the Respondent’s decision, it was open to her to conclude that the Applicant could  satisfy subparagraph (c) of paragraph 403 because it was open to her to conclude that he is admissible to Zimbabwe.

As regards paragraph 403(d) of the Immigration Rules, the Upper Tribunal saw some force in  the Respondent’s  argument that this places an obligation on the applicant to gather and submit all relevant evidence, because the Secretary of State needs it in order to enable her to form a view as to his ability to satisfy Zimbabwean domestic laws as well as the Zimbabwean Constitution. However the better view, considered  by the Upper Tribunal was that in this case the applicant has fulfilled the requirements of (d) in approaching the Zimbabwean authorities and ascertaining the position under the Constitution. If he satisfied (b), as  the Upper Tribunal found, it was  difficult to see how he could  properly be refused under (d).

The Upper Tribunal concluded that even with the more rigorous scrutiny with which it is appropriate to address the decision in this case, there is a material difference between the statutory appeal context of Al-Jedda and the decision in this case under the Immigration Rules, (as well as between the wording of the Act as amended and the Rules), which the Respondent had properly put in place to enable her to make a decision on the statelessness application of the Applicant. The Upper Tribunal considered  that  the Secretary of  State  was entitled to conclude that the Applicant  had not satisfied the requirements of paragraph 403(c) of HC 395. The application for judicial review was  refused.

(8)PRACTICALITIES

The relevant application form for use is Form FLR(S). There is no requirement to provide a  Home Office  application  fee.

Depending on each individual case, among other required documentation, such as passport sized photographs for the applicant and any family members, the most relevant documents required to accompany the form are:

  • identity documents (e.g. birth certificate, extract from civil register, national identity card, voter registration document);
  • passports or other travel documents (including expired ones);
  • documents regarding applications to acquire nationality or obtain proof of nationality;
  • certificate of naturalisation;
  • certificate of renunciation of nationality;
  • previous responses by States to enquiries about your nationality;
  • marriage certificate;
  • military service record/discharge certificate;
  • school certificates;
  • medical certificates/records (e.g. attestations issued from hospital on birth, vaccination booklets);
  • identity and travel documents of parents, spouse and children;

The application form also requires that the applicant state their reasons for applying for leave as a stateless person and also provide a detailed and accurate account of the circumstances which have resulted in statelessness. Applicants should also give details of the efforts which they have made to acquire nationality or recognition as a national.

A personal interview may not be required by the home office if there is sufficient evidence of statelessness, including previous findings of fact established during the asylum claim (for example) and the individual is eligible for leave to remain on this basis. In all other cases, a personal interview will be arranged to enable the applicant to set out fully his case for being considered stateless and to submit any other available evidence.  Interviews will be arranged, conducted and recorded in a similar way to asylum interviews, set out in Home Office  published guidance on interviews.

Leave to remain under this catergory  will be granted where the person fulfils the requirements of Rule 403 and does not fall within the provisions of Rule 404(b) or (c).

A successful application normally leads to the  grant of  leave to the claimant and his  dependants for an initial 30 months. Those granted leave to remain are entitled to take employment and have access to public funds.

Persons who are recognised as stateless and given leave to remain are entitled to apply for a Travel Document issued in accordance with the UK’s obligations under the 1954 Convention. Applications for a Stateless person travel document are made using application form TD112(BRP).

 A person who has spent a continuous period of five years in the United Kingdom with lawful leave, may apply for indefinite leave to remain in the UK.

An applicant who does not meet the requirements of Rule 403 or who falls within the terms of Rule 404 must be informed of the decision in a letter setting out the reasons. Refusal of leave under this route does not generate a free-standing right of appeal. However, in some cases, a refusal decision may generate an appeal right under the Nationality, Immigration and Asylum Act 2002. In these circumstances, appropriate appeal papers would  be issued with the decision to refuse leave.

Where no right of appeal is provided following a negative decision from the Secretary of State and where there are grounds to do so, a claim for judicial review may be commenced in the Upper Tribunal.

 

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