Wide-reaching judicial innovation: Stateless UK born child able to acquire Indian nationality found entitled to British citizenship

By an innovative and skilful interweaving of statutory provisions, caselaw and guidance, Mr C M G Ockelton  sitting as Deputy High Court Judge,  reached a startling conclusion. He concluded that a child born in the UK in 2010, who  could have been registered as an Indian national at  any time  since  birth,  was entitled to registration as a British citizen, having regard to the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981.

 

Startling, because where the Secretary  of  State fails to successfully challenge this decision, it is not only stateless  children of Indian citizens who  are able  to take advantage  of Mr Ockelton’s  judgement.

 

The issue in MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1365 (Admin)  was  whether the Claimant  child, for the purposes of paragraph 3 of Schedule 2 to the 1981 Act, ‘is and always has been stateless’.

 

MK was acknowledged to be a lead case- a case behind which other similar cases were stayed awaiting the outcome of the claim.  In essence, the Secretary of State’s position  was  that the Claimant was not stateless as she has and had always been able in practice to acquire Indian nationality. On behalf of the Claimant, it was argued that the need for registration, or the need for the permission of the Central Government, or the specific documentary requirements for registration, meant that  the Claimant should be treated as not having Indian nationality.

 

Mr Ockelton ‘s approach MK  is to leave the reader in suspense for the major part of the judgment. Whilst seeming to be critically dismissive of several issues wholly not to his agreement, at the same time he sought to lay a foundation  from  the principles of existing caselaw he would  subsequently rely upon to justify his conclusions.  Mr Ockleton did however acknowledge at several points  during the course of his judgement,  that the caselaw authorities he relied upon  were  not precisely on the issue raised in MK, but nonetheless ploughed ahead to utilise the authorities to the Claimant’s advantage.

 

The relevant provisions: Paragraph 3 of Schedule 2 to the British Nationality Act 1981:

 

The provisions are:

 

“3. (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely

(a) that he is and always has been stateless; and

(b) that on the date of the application he was under the age of twenty-two; and

(c) that he was in the united Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.

(2) A person entitled to registration under this paragraph –

(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British overseas territories;

(b) in any other case, shall be registered under it as a British overseas territories citizen.”

 

The summary background and the issue in the claim:

 

The Claimant was born in the United Kingdom on 14 November 2010. Her father and her mother  are both nationals of India. On 8 March 2016, the Claimant  submitted an application for registration as a British Citizen under Paragraph 3 of Schedule 2 to the British Nationality Act 1981. On 18 May 2016 the Secretary of State refused the application.  Judicial review proceedings were begun on 17 August 2016.

 

The issue, in short, was whether the Claimant for the purposes of paragraph 3 of Schedule 2 to the 1981 Act, ‘is and always has been stateless’.

 

Relevant Indian law and the administrative procedural requirements:

 

Mr Ockleton found as follows:

 

  • Relevantly, Indian citizenship is acquired by descent, and a child born outside India after 1992 is a citizen of India by descent if either of the child’s parents was at the time of his birth a citizen of India other than by descent.

  • If, however, the birth was outside India on or after 3 December 2004 (the date of commencement of the Citizenship (Amendment) Act 2003 (India) the child is not a citizen unless the birth is registered at an Indian consulate ‘in such form and in such manner as may be prescribed’. If the registration is after the child’s first birthday it needs ‘the permission of the Central Government’. In either case the parents have to declare, also ‘in such form and in such manner as may be prescribed’, that the child does not hold the passport of any other country. There was no suggestion that citizenship is granted from the date of registration: it is obtained by the birth, provided that the birth is registered.

  • Guidance issued by the Indian Government provides for the use of a form for the process of registration, and an ‘undertaking in writing by the parents’ that the child does not hold the passport of another country.

  • In relation to what is meant by needing the permission of the Central Government for registration, theevidence of the Secretary of State’s witnesses indicated that in practice there was no difference between registration before the child’s first birthday and registration after that date. The Indian officials had said that there was ‘no restriction’ on later registration. This meant that the statutory provision requiring the permission of the Central Government does not in practice imply the exercise of a discretion: permission is given routinely. The evidence was also noted to be that if an application is made without the correct documentation it will be (or perhaps may be) refused; but this is not a refusal of registration, merely an indication that the documentation is not in order and that the application will need to be resubmitted.

  • Mr Ockelton concluded that the Indian law and practice as revealed from the evidence was that a child born to an Indian parent outside India has a right to Indian citizenship, which, if the child was born on or after 3 December 2004 is obtained by registration at the Indian consulate after fulfilling appropriate administrative procedures directed to identification of the child and the parents and their nationality. The child’s age has no impact on the process.

 

Principles relevant to statelessness:

 

It was agreed between the parties  in MK that the underlying purpose of the statutory provisions under consideration is to reduce statelessness and that they are motivated by the 1961 UN Convention on the Reduction of Statelessness. It was further agreed between the parties that the meaning of ‘stateless’ and ‘statelessness’ for these purposes is that given by the definition in art 1(1) of the United Nations Convention relating to the Status of Stateless Persons.

 

So as to follow the course of his judgement  in relation to reasoning and considerations, Mr Ockelton drew attention to the several aspects in which  the issue of statelessness could be approached. These can be summarised as follows;

 

  • In the context of paragraph 3 of Schedule 2 to the British Nationality Act 1981, which has one of its requirements that an applicant for registration show that he is and had always has been stateless.

  • Statelessness for the purposes of 1954 Convention relating to the Status of Stateless Persons which regulates the status of non-refugee stateless persons and ensures that they enjoy human rights without discrimination. It sets out a common framework with minimum standards of treatment for stateless persons, provides them with an internationally recognised legal status, and (for example) offers access to travel documents for those lawfully staying in a territory. Article 1(1) of the 1954 Convention is as follows: “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.” The 1961 Convention on the Reduction of Statelessness is intended as the primary international legal instrument adopted to deal with the means of avoiding statelessness. Paragraphs 401 to 416 in Part 14 of the Immigration Rules provide the procedural and policy framework for considering applications on the basis of statelessness.

  • Statelessness for the purposes of the 1951 United Nations Convention relating to the status of Refugees, where status is determined by reference to a person’s nationality or nationalities and only in the case of a person ‘not having a nationality’ by reference to his country of former habitual residence.

  • Statelessness as it applies in Section 40(4) of British Nationality Act 1981. Mr Ockelton laid emphasis in his judgement upon two decisions of the Supreme Court, Al-Jeddah v SSHD [2013] UKSC 62 and Pham v SSHD [2015] UKSC 19, where both appeals were concerned with the meaning and operation of s 40(4) of the British Nationality Act 1981. By s 40(2) the Secretary of State may deprive a person of ‘citizenship status’ if she is satisfied that deprivation is conducive to the public good; but by s 40(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.”

Decision in MK:

 

Mr Ockelton decided as follows:

 

  • For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes. A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended.

  • If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, the Claimant’s birth had on the date of the decision under challenge not been registered, she was entitled to British Citizenship.

 

Possibility of abuse acknowledged:

 

  • Mr Ockleton specifically acknowledged that his conclusion opened an obvious route to abuse. It was noted that the facts of the present case might be said to be an example of abuse. The Claimant’s parents were both overstayers. Both had sought, and been refused further leave. They had preferred to allow the Claimant to be stateless all her life to date rather than to register her birth and obtain Indian nationality for her.

  • It was noted that the Claimant’s right to British nationality would immeasurably improve her parent’s prospects of being allowed to stay in the United Kingdom.

 

Secretary of State encouraged to be flexible  and not impose impossible requirements:

 

  • Mr Ockelton observed that the Secretary of State had made it clear in correspondence before the decision, the decision itself, and a supplementary letter, that in order to consider an application for registration as a British citizen in circumstances such as the Claimant, she required ‘confirmation from the Indian authorities “ that her birth had not been registered in accordance with Indian law and that she was not a national of India’. Mr Ockleton stated that there was copious evidence before him of the difficulty, perhaps the impossibility, of providing such evidence.

  • It was noted that the Secretary of State was entitled to require that an applicant for British citizenship prove his or her entitlement, and was entitled to require evidence tending to establish the issue at the level of certainty appropriate for such an important and far-reaching act of the State. Mr Ockleton however made it clear that the Secretary of State she was not entitled to impose requirements that make it impossible for an individual to obtain a benefit that is his by statute. It was noted that it is sometimes difficult, though not usually impossible, to prove a negative, however it may be simply impossible in an individual case to obtain documents of a category specified as generally obligatory.

  • Mr Ockelton concluded that there may well be rules or guidance about what needed to be provided, but there would have to be flexibility to cover cases where it will be exceptionally difficult or impossible to obtain the documents sought. In such cases the Secretary of State has to be willing to consider proof by some other means. Her unwillingness to do so, despite the evidence of difficulty, appeared to Mr Ockeleton to be unreasonable.

  • It appeared to Mr Ockleton that a clear unambiguous sworn statement by each of the parents ought to be regarded as having some value. A statement from the relevant Consulate might in many cases be of great assistance.

  • Mr Ockelton observed that if citizenship is obtained by fraud, false representation or concealment of a material fact it may be revoked under s 40(3) of the 1981 Act – to which section 40(4) does not apply. The Secretary of State had a remedy if her flexibility is abused.

  • Mr Ockelton concluded that the imposition of an inflexible procedural requirement of confirmation from the Indian authorities that the Claimant’s birth had not been registered in accordance with Indian law and that she was not a national of India was unlawful in the context of the Secretary of State’s knowledge of the extreme difficulty or impossibility of fully satisfying that precise requirement.

  • In Mr Ockleton’s judgement, the Claimant was entitled to registration as a British citizen on proof that she met the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981. For these purposes she was or is ‘stateless’ at any time when she did or does not in fact have Indian nationality. The Secretary of State is entitled to require her to prove the relevant facts, but is not entitled to impose requirements that cannot, or practically cannot, be met.

 

Conclusion:

 

It is undeniable that the decision in MK has wide- reaching implications.  The principles arising out of MK should not be seen as merely confined to stateless children of Indian parents. Rather, children who are born in the UK and are stateless can rely upon the judgement so as to seek to register as British citizens. The judgment leaves the door wide open  to affected persons  who are unable  to acquire other nationality in light of administrative or other obstacles.

 

The relevant Home office Guide for these types of application is:

 

Guide S3 – Registration of a stateless person as:

  • a British citizen, or

  • a British overseas territories citizen

A guide for those born in the United Kingdom or a British overseas territory on or after 1 January 1983, January 2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/491316/GUIDE_S3_-__01-16__FINAL_v1.pdf

It is noteworthy that Paragraph 3 of Schedule 2 to the British Nationality Act 1981 not only catches  children under the age  of 18years but young  adults under the age of 22 on the date of the application.

 

MK  also highlights the futility in relevant cases, of having to wait  10years to enable  registration  as British  citizens for children who  are born in the UK and have  lived here until the age of 10.

 

The decision in MK  further  impacts not only  affected children but their parents. Undocumented parents of such children can subsequently apply for leave to remain having regard to Article 8 on the basis of family life with a British child. Alternatively, where appropriate, a Zambrano application can be relied upon so as to obtain a derivative right of residence in the UK.

 

It is currently understood that the Administrative Court has refused the Secretary of State permission to appeal, however I  suspect that  those behind the  novel  arguments arising in  this litigation are more than prepared to  robustly  resist further  attempts at seeking to overturn MK.

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