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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) (22 June 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1586.html Cite as: [2018] WLR 4327, [2018] WLR(D) 398, [2018] 1 WLR 4327, [2018] EWHC 1586 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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LIEW TEONG TEH |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Zane Malik (instructed by Government Legal Department) for the defendant
Hearing dates: 14 June 2018
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Crown Copyright ©
Steven Kovats QC sitting as a deputy High Court judge:
Introduction
The legal framework
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: … (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; ….
"Definition of a stateless person
401. 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
402. 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 obligation 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 in the United Kingdom as a stateless person
403. 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
404. An applicant will be refused leave to remain in the United Kingdom as [a] 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 in the United Kingdom
405. 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."
"(1) This section applies to a person who has the status of-
(a) British Overseas citizen, …
(2) A person to whom this section applies shall be entitled to be registered as a British citizen if-
(a) he applies for registration under this section,(b) the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and(c) the Secretary of State is satisfied that the person has not after the relevant day renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.
(3) For the purposes of subsection (2)(c), the "relevant day" means-
(a) …(b) … 4 July 2002."
The facts
The live issues
Paragraph 403(b) statelessness
"…. Moreover, within a State there may be various categories of nationality with differing names and associated rights. The 1954 Convention is concerned with ameliorating the negative effect, in terms of dignity and security, of an individual not satisfying a fundamental aspect of the system for human rights protection; the existence of a national-State relationship. As such, the definition of stateless person in Article 1(1) incorporates a concept of national which reflects a formal link, of a political and legal character, between the individual and a particular State. …. As such, the treaty's concept of national is consistent with the traditional understanding of this term under international law, that is persons over whom a State considers it has jurisdiction on the basis of nationality, including the right to bring claims against other States for their ill-treatment.
53. Where States grant a legal status to certain groups of people over whom they consider to have jurisdiction on the basis of a nationality link rather than a form of residence, then a person belonging to this category will be a "national" for the purposes of the 1954 Convention. Generally, at a minimum, such status will be associated with the right of entry, re-entry and residence in the State's territory but there may be situations where, for historical reasons, entry is only permitted to a non-metropolitan territory belonging to a State. The fact that different categories of nationality within a State have different rights associated with them does not prevent their holders from being treated as a "national" for the purposes of Article 1(1). Nor does the fact that in some countries the rights associated with nationality are fewer than those enjoyed by nationals of other States or indeed fall short of those required in terms of international human rights obligations. Although the issue of diminished rights may raise issues regarding the effectiveness of the nationality and violations of international human rights obligations, this is not pertinent to the application of the stateless person definition in the 1954 Convention. "
"Since the 1954 Convention and the 1961 Convention on the Reduction of Statelessness entered into force, a series of General Assembly Resolutions and Conclusions adopted by the Executive Committee of the High Commissioner's Programme have given UNHCR a leadership role in assisting non-refugee stateless persons as a distinct population of persons of concern. UNHCR is tasked to undertake measures to identify, prevent, and reduce statelessness, as well as to promote the protection of stateless persons."
"To observe that British Overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it is not to conclude that it is a relationship which for the purposes of s.44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of "citizen" is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s.44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon's status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom."
Paragraph 403(c): admissibility
"4. British Overseas Citizen (BOC)
Many British Overseas citizens (BOCs) have renounced (given up) their Malaysian citizenship on the incorrect assumption that they would be able to remain in the UK. You must not attempt to remove a person to Malaysia on a BOC passport without consulting RL Country Liaison and Documentation Team 5.
The Malaysian authorities are accepting the voluntary returns of BOCs if the person is willing to regain their citizenship and has:
Voluntary BOC Criteria
- Subject must be willing to return to Malaysia voluntarily
- Subject possesses an original BOC passport which has a minimum of five years validity remaining
- If the subject has less than five years validity on their BOC passport they must be willing to reapply and pay a fee for a new BOC passport to HMPO (Her Majesty's Passport Office)
- Subject must be willing to attend a face to face interview at the Malaysian High Commission in London
- Upon arrival in Malaysia the subject must pay a fee of 600RM (£120) for the residence pass."
"…. We would ensure that every application received from BOC holders applying for Malaysian citizenship would be given serious consideration.
In this relation, I would like to reiterate that BOC holders who have applied for the citizenship status would have to go through the normal processes as stipulated in the Malaysian Federal Constitution.
The applications would need to be accompanied by solid documentary evidences as proof that they were previously Malaysian nationals.
With regards to the removal of BOC holders who have no right to remain in the UK, the Government of Malaysia would be in a position to accept the removal of such persons provided that they would be determined previously to be Malaysian nationals. In such cases, it is of paramount importance for the UK authorities to give ample prior notification as well as sufficient time frame to the Malaysian authorities."
"Your first point concerns the lack of an agreed and established process by which Malaysian BOCs may return voluntarily to their homeland. As outlined in previous correspondence, written confirmation has been secured from the Malaysian Ministry of Foreign affairs [sic] whereby it has been agreed in principle that former Malaysian citizens who have renounced their citizenship in error, will be allowed to return to their country of origin. Furthermore, that agreement also extends to such Malaysians being able to take steps to resume their citizenship. The actual process to bring this agreement into effect is still the subject of ongoing discussions with the Malaysian authorities but is very close to completion. Indeed we expect to finalise this within the next few weeks, the only outstanding point being the document that would act in place of a BOC passport should the individual returning to Malaysia not have a valid one at the time of return. What is already agreed therefore is that a BOC, on return, will be able straightaway to apply for (and be granted) a 5 year Resident Pass which can then be renewed if Malaysian citizenship has not been granted during the period of its initial validity."
a) A letter dated 28 August 2009 from the Main Office of the National Registration Department of Malaysia to the claimant, which quotes article 18(2) of the Malaysian constitution: "Except by the approval of the Federal Government, no one that has renounced … his/her citizenship … may be registered as a citizen under this constitution."
b) An article from a local Malaysian newspaper, submitted as part of the supporting documentation with the claimant's application for leave to remain. I was not shown that article. The claimant's application for administrative review asserted that the article quoted a DAP (I was told this is a political party in Malaysia) spokesman as saying that those who had renounced their Malaysian citizenship would still be required to go to court to re-apply for their Malaysian status, and that there had only been one successful case, in 2005, which was a case of deprivation, not renunciation.
Paragraph 403(d)
"There is a further difficulty with the wording of 403. 403(d) requires a claimant to "[obtain and submit] all reasonable available evidence to enable the Secretary of State to determine whether they [sic] are stateless". As regards the fulfilment of 403(b), well and good. But as [counsel for Mr JM] accepted it must also be open to a claimant (and indeed the Secretary of State – consistently with the 403 burden being always on the claimant) to adduce evidence, where it is required, in relation to 403(c). The point is not contentious, but it would be better if the Rule made the position clear."
Disposal